ML20073M957
| ML20073M957 | |
| Person / Time | |
|---|---|
| Issue date: | 04/30/1991 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V33-N02, NUREG-750, NUREG-750-V33-N2, NUDOCS 9105160092 | |
| Download: ML20073M957 (121) | |
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Vol. 33, No. 2 Pages61-173 NUCLEAR REGULATORY COMMISSION ISSUANCES 1
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Available from Superintentendent of Documerits U.S. Government Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication, Single copies of this publication -
are available from National Technical Informatior. Service, Springfield, VA 22161 u
Errors in this publication may be reported to.the Division of Freedom of information and Publications Services -
Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925) k m
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NUREG-0750 Vol. 33, No. 2 Pagos61-173 NUCLEAR REGULATORY COMMISSION ISSUANCES February 1991 1
This report includes tho issuancos receivod during the specified period from the Commission (CLt), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Ad-ministrativo law Judges (ALJ), the Directors' Decisions (DD), and the Denials of Potitions for Rulemaking (DPRM).
The summarios and headnotes orocoding the opinions reported herein oro not to be doomed a part of theso opinions or have any independent togal significance.
(IS^ NUCLEAR REGULAT'ORY COMMIS$40N Prepared by the Division of Froodom of Information and Publications Services Offico of Administration U.S. Nuclear Regulatory Commissinn Washington, DC 20555 (301/492-8925)
COMMISSIONERS Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Rernick Christir'e N. Kohl, Chairman, Atomic Safety and Licensing Appeal Panel B. Paul Cotter, Chief Administrative Judge, Atomic Safety and Licensing Board Panet
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CONTENTS lssuances of the Nuclear Regulatory Commission LONO ISLAND LIGilTING COMPANY (Shoreham Nuclear Ibwer Station, Unit 1)
Docket 50-322 MEMORANDUM OPINION AND ORDER, CLI 912, libruary 22,1991....................
..... 61 LONO ISLAND LIGitTING COMPANY (Shoreharn Nuclear Itwer Station. Unit 1)
Docket 50-322-OLA MEMORANDUM AND ORDER, CL191-3, Itbruary 28,1991
... 76 Issuance of the Atomic Safety sud Licensing Appeal lloard KERR-McGEE CIIEMICAL CORPORATION (West Chicago Rare Earths Pacility)
Docket 40-2061-ML DECISION, ALAB 944, Ibbruary 28,1991.
81 issuances of the Atomic Safety and Licensing Boards ARIZONA PUBLIC SERVICE COMPANY, et al.
(Palo Verde Nuclear Generating Station, Units 1,2, and 3)
Dockets 50-528-OLA 2,50-529-OLA-2,50-530-OLA 2 (ASLBP No. 91533-054LA 2)(Allowable Sctpoint Tolerance)
MEMORANDUM AND ORDER, LBP-91-4, itbmary 19.1991... 153 GEORGIA POWER COMPANY, et al.
(Vogtle Electric Generating Plant, Units I and 2)
Dockets 50-424-OLA,50425 OLA (ASLDP No. 90-617-03-OLA)
(theility Operating Licenses NPF 68 and NPF 81)
MEMORANDUM AND ORDER, LDP-91-6, itbruary 28, 1991,,. 169 SEQUOYAH FUELS CORPORATION Docket 40-08027-MLA (ASLBP No. 91-623-01-MLA)
(Source Material License No. SUB-1010)
MEMORANDUM AND ORDER, LDP-91-5, January 24, 1991....
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1 Cite as 33 NRC 61 (1991)
CLI-91 2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick in the Matter of Docket No. 50-322 LONG ISLAND UGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
February 21,1991 nc Commission considers Intervenors' motion for reconsideration of - and amicus comments on - its denial, in CLI-90-8, of Intervenors' request for issuance of an environmental impact statement considering " resumed operation" of the Shoreham plant as an alternative to decommissioning of that facility. The Commission denics the motion because the Petitioners failed to demonstrate any legal flaw in CLI-90-8 However, in view of current world events, the Commission issues guidance to the parties regarding potential requests for NRC action to order operation of the Shoreham plant under Atomic Energy Act il 108, 186(c), or 188.
NEPA: FEDERAL ACTION Re law is quite clear that only a " federal action" triggers NEPA requirements.
Kleppe v. Sierra Club, 427 U.S. 390, 399 (1976): Aberdeen & Rockfish R.R.
- v. SCRAP,422 U.S. 289, 320-21 (1975). NEPA does not impose requirements on nonfederal actions. E.g., Natural Resources Defense Council ("NRDC") v.
EPA,822 F.2d 1N,129 n.25 (D.C. Cir.1987); District of Columbia v. Schramm.
631 F.2d 854,862 (D.C. Cir.1980); Defenders of Wilditfe v. Andrus,627 F,2d 1238,1243-44 (D.C. Cir.1980).
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' NEPA: FEDERAL ACTION A " federal action" requires an " overt act"; simply acquiescing in a private party's action does not coluiitute federal action. Defenders of Wildhfe v. Andrus, 627 P.2d 1238,1244-45 (D.C. Cir.1980),
NRC: SCOPE OF AUTIIORITY (DECOMMISSIONING)
With regard to the Shorcham plant, the NRC action subject to NEPA is, by its broadest terms, confined to review and approval of the method of Shoreham decommissioning.
NEPA: ENVIRONMENTAL ANALYSIS; CONSIDERATION OF ALTERNATIVES (REASONAHLENESS)
When the NRC proceeds to review and approve a decommissioning plan for the Shoreharn plant, it will decide what environmental evaluation will be required, long Island LigMng Co. (Shoreham Nuclear Power Station, Unit 1), CLI-90-8, 32 NRC 201, 209 (1990). In making that review "[tlhe range of alternatives (10 the EIS] need not extend beyond those reasonably related to the project." Process Gas Consumers Group v. USDA,694 P.2d 728,769 (D.C.
Cir.1981) (cith'g cases).
NEPA: CON!ilDERATION OF A111ERNATIVES; REQUIREMENTS Operation of the Shoreluun plant is surely an alternative to licensce's decision not to operate, but that decision is a private decision not subject to NEPA. E.g.,
Kleppe v. Sierra Club,427 U.S. 390 (1976),
- NEPA: NONFEDERAL ACTIONS Private, nonfederal actions undertaken prior to or leading to actions that do require fedcral permission do not, in and of themselves, trigger NEPA requirements.
NEPA: CONSIDERATION OF. ALTERNATIVES (REASONABLENESS)
In reaffirming the conclusion that " resumed operation" of the Shoreham plant is not currently a " reasonable alternative," the Commission relles on the undisputed facts and circumstances associated with the licensec's decision.
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NRC: SCOPE OF AUTilORITY
%e Commission's finding that resumed operation is not a reasonable al-ternative was based on the circtunstances surrounding and leading to the 11-censee's decision, and was not insed on some legal principle dial activities beyond de agency's authority are per se unreviewable.
NEPA: CEQ REGULATIONS While the Commitsion agrecs that the CEQ's regulations are ent!tled to
" substantial deference" wherc applicable, the CEQ regulations apply only to
" federal actions" to whth NEPA applies.
NEPA: CEQ REGULATIONS
%e NRC is not bound by those portions of de CEQ's NEPA regulations that have a substantive impact on the way in which the Commission performs its regulatory funct ons. 49 Fed. Reg. 9352 (Mar.12,1984).
i NRC: SCOPE OF AUTilORITY AEA: SECTIONS 108,186(c), AND 188 De essential prerequisites to the NRC's authority to mandate operation of the Shoreham plant would include either a specified congressional declaration under AEA 0108 or the revocation of a license under AEA (( 186(e) and 188.
Rose items are specific enough that the Commission can take judicial notice of their existence or non-existence at any particular time.
ENERGY REORGANIZATION ACT: RESPONSIIIILITIES Under the Energy Reorganization Act,42 U.S.C. I5801, et seq., which cre-ated the NRC and the DOE (at that time the Energy Research and Development Administration) from the Atomic Energy Commission, responsibility for action under AEA il108,186(c), and 188 rests jointly with both the NRC and the DOE, See S. Rep. No.93-980, Appendix 2, 6 III.
ATOMIC ENERGY ACT: SECTION 108 Under AEA i108, once Congress " declares that a state of war or national emergency exists," the DOE must then issue a finding that "it is necessary to the common defense and security..." to order operation of a nuclear power 63
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plant. DOE must then petition the Commission to issue an order authorizing operation of the plant.
ATOh11C ENERGY ACT: SECTION 108 Once Congress has declared a state of war or national emergency and the DOE has petitioned the NRC to authorize operation of a nuclear power plant, the Commission would then expect the DOE (1) to demonstrate that the congressional action satisfied the statutory prerequisite and (2) to exphiin who would bear the financial responsibility for k "[j]ust compensation" of heensee's expenses necessary to operate k facility. Sec 42 U.S.C. 6 2138.
ATOMIC ENERGY ACT: SECTION 186(c)
Under AEA i 186(c), after the revocation of any license, the IX)E must issue a finding that operation of the nuclear facility is "of extreme importance to the national defense and security" of the United States. DOE must then petition the Commission for an order dixcting operation of the facility and demonstrate how k licensee will be justly compensated for the expenses necessary to operate the fr% See 42 U.S.C. 6 2236(c).
ATOMIC ENERGY ACT: SECTION 188 Under AEA 9188, after the revocation of a nuclear power plant license, the DOE must issue a finding that operation of the facility is necessary for 'Tublic convenience and necessity" or its " production program" and then file a petition with the NRC, asking that the Commission issue an order directing operation of the facility and demonstrating how the licensee will be justly compensated for the expenses necessary to operate the facility. 42 U.S.C. 6 2238.
ATOMIC ENERGY ACT: SECTION 186 Any person may petition the Commission under 10 C.F.R. 6 2.206 to revoke a nuclear powtr plant license by alleging the conditions specified in AEA i 186.
REGULATIONS: INTERPRETATION (10 C.F.R.18 50.75 AND 50.82)
Major dismantling and other activities that constitute decommissioning under the NRC's regulations must await NRC appmval of a decommissioning plan.
See 10 C.F.R. Il 50.75,50.82.
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NEPA: SCOPE Petitioners cannot tatstrap NRC authority to mandate operation of a facility under the AEA on to NEPA. "NEPA, as a procedural device, does not work a broadening of the agency's substantive pours." NRDC v. E/M,822 F.2d at 129 (citing cases).
NRC: SUPERVISORY AUTilORITY
'ihe Commission has explicitly retained the authority to provide guidance at any point in the course of a proceeding. See PuNic Service Co. of New
/lampshire (Seabrook Station, Units I and 2), CLI 90-3,31 NRC 219,228-29 (1990).
NRC: SUPERVISORY AUTilORITY Once the Commission determines that a particular form of requested relief is not required and is not appropriate, it is entirely proper for it to provide guidance to its lower tribunals at the earliest time possible, even if it is at the outset of the proceeding. E.g., PuNic Service Co. offndiana (Marble 111 : Nuct:ar Generating Station, Units I and 2), CLI.80-10,11 NRC 438 (1980).
NRC: SUPERVISORY AUTIIORITY A petitioner's procedumi rights to intavene in an NRC proceeding are not violated when the Commission determines that a certain form of relief is not required and is not appropriate and then steps into a proceeding to issue guidance to its lower tribunals.
NEPA: SCOPING
'The scoping process is initiated only "[w]henever the appropriate NRC Staff director determines that an (EIS] will be prepared.,,," 10 C.F.R. 6 51.26(a).
As a result, scoping is not a relevant issue prior to the decision to pmpare an
- EIS, NEPA: SCOPING (PAKrlCIPATION)
Once petitioners have availed themselves of the opportunity pmvided by the scoping regulations, namely, to participate in a debate over the scope of any possible EIS, their claims on this point are academic.
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Al'A: JUDICI AL NOTICE ne Commission, in deciding an issue, can take into consideration "a matter beyond reasonable controversy" and one that is " capable of immediate and accurate determination by resort to casily accessible sources of indisputable accuracy." Government of Virgin Islands v. Gereau 523 F.2d 140,147 (3d Cir.
1975), cert. denied, 424 U.S. 917 (1976) (citations omitted). %e Shoreham settlement agreements are included in this category.
NRC: SCOPE OF AUTIIORITY Re fact that the NkC must approve the transfer of the Shoreham facility to LIPA does not per se give it authority to void the parties' settlement agreement concerning the transfer; not does it give the NRC the authority to direct the licensec to operate the facility.
MEMORANDUM OPINION AND ORDER I.
INTRODUCTION On October 17,1990, the Nuclear Regulatory Commission (NRC) issued an Order in response to six " Petition [s] to Intervene and Request {s) for licaring[s)"
filed by Peutioners Shoreham-Wading River Central School District (" School District") and Scientists and Enginects for Secure Energy, Inc. ("SE2") (collec-tively " Petitioners"). CLI-90-8,32 NRC 201 (1990). In CLI 90-8, we forwarded the Petitioners' request to the Atomic Safety and Licensing Board for routine processing under our normal Rules of Practice. Ilowever, before doing so we declined one form of relicf requested: publication of an Environmental Im-pact Statement ("EIS") considering " resumed operation" as an alternative to the decommissioning of the Shoreham facility. See 32 NRC at 209.
The Petitioners have filed a timely motion for reconsideration. The NRC Staff and the lang Island Lighting Company ("LILCO") have responded. We have also received and considered amicus comments from the Secretary of Energy
(" DOE"), the Council on Environmental Quality ("CEQ"), the Long Island Power Authority ("LIPA"), and the State of New York ("New York"). After careful consideration, we have decided to deny the motion for reconsideration because Petitioners have failed to demonstrate any legal flaw in CLI-90-8.
Ilowever, in view of current world events, we have decided 'a issue guidance to the parties regarding potential requests for NRC action to order operation of Shoreham under sections 108,186(c), or 188 of the Atomic Energy Act
("AEA").
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11, ilACKGROUND in CL1-948, we reviewed the Petitioners' request for issuance of an EIS which would include discussion of " resumed operauon" as an alternative to the proposed decommissioning of the Shoreham Nuclear Power Station (" Shore-ham"). The Petitioners argued that various actions taken by the NRC Staff constituted approval of active steps toward decommissioning and preclusion of operation without the issuance of such an EIS in violation of the National En-vironmental Policy Act ("NEPA"). De actions at issue in CL190-8 included a Comirmatory Order Modifying License (Effective immediately), which barred LILCO from placing nuclear fuel in Shorcham without first obtaining NRC ap-proval, and two proposed license amendments that permitted changes in Shore-ham's physical security plan and removed license conditions in the area of offsite emergency preparedness.
After a careful analysis of its regulatory authority, the Commission found in CL1-90-8 that it was responsible only for approving and supervising the method of decommissioning, not for the decision whether to operate the plant, ne Commission determined that the decision not to operate Shoreham was a non-NRC action which did not require an EIS under NEPA. CL190-8,32 NRC at 207-08. In the alternative, the Commission also found that under the NEPA
" rule of reason," " resumed operation" would not have to be considered even if the decision not to operate Shoreham was an NRC action subject to NEPA, because given the existing agreements among LILCO, LIPA (the entity to which control of Shoreham will be transferred), and New York State, major changes in policy and legislation would have to occur for resumed operation to be a viable alternative. Id. at 208-09.
g Ill. PETITIONERS' MOTION FOR RECONSIDERATION On October 29, 1990, Petitioners filed a Joint Petition for Reconsideration, in their Joint Petition, Petitioners again assert that NEPA demands consideration of the alternative of" resumed operation" and cite CEQ regulations on NEPA to buttress their claim. Petition at 3-11, 13-16. ncy argue that the federal action here is approval of the decision not to operate Shoreham and that operation is a reasonaole "no action" alternative even if the NRC le.ks authority to order operation, and even if the NRC action is confined to approval of the decommissioning plan. Petitioners also allege that CL1-90-8 violates NEPA scoping regulations. Id. at 11-13. Furthermore, they argue that CLI-90-8 misstates and misapplies the NRC's authority under sections 108,186(c), and 188 of the AEA, to order a licensec to operate a facility. Petition at 16-20.
Finally, Petitioners claim that the NRC denied Petitioners' procedural rights 67
under 10 C.l!.R. 6 2.714 by ruling prematurely on the availabihty of certain specified relief (id. at 22 24); and violated the APA 1 y taking " judicial notice" of the validity of certain facts sunounding the Shoreham Settlement Agreement (id. at 25 27).
DOE argues that the decommissioning of Shoreham is a unique situation, since the plant is new and not "at the end of its useful life." IX)E Amicus Submission at 2 3. Specifically, DOE claims that die environmental impact of not operating Shoreham must be considered. Such impxt would include diose alternative energy sources put to use to replace Shoreham. Id. at 2-6.
DOE also argues that preparation of an Environmental Assessment ("EA") to supplement the generic EIS on the decommissioning rule is inadequate, and Otat a separate EIS is needed for any proposed decommissioning of Shoreham.
That EIS would provide additional necessary information and allow for greater public participation. Id. at 613. DOE also argues that NEPA requires the NRC to study resumed operation as the "no action" alternative and that 0is option was within the NEPA " rule of reason" because, under certain circumstances, the DOE or NRC could order Shoreham's operation. Id. at 13 21. Finally, DOE asserts that NEPA mandates NRC preparation of an EIS for the earliest Commission decision that could affect decommissioning. Id. at 21-24.
The CEQ presents arguments largely similar to those made by DOE, including die need for an EIS under NEPA which would address the "no action" alternative
- what CEQ describes as "not decommissioning the facility." CEQ Amicus at 6 (emphasis in original). The CEQ argues that the NRC must considet other " reasonable" alternatives including "mothballia;;" Shoreham and " resumed operation," even if they are outside NRC jurisdiction, Id. at 4-7.
The NRC Staff. LILCO, LIPA, and the State of New York oppose the motion for reconsidention. The Staff argues that NEPA does not require consideration of unreasonable alternatives, such as resumed operation of Shoreham, where die alternative is outside the agency's jurisdiction and the result of a nonfederal action. Instead, NEPA alternatives must be those that are " practically possible."
Staff Response at 5.
LILCO argues that NEPA review is not proper because no " federal action" has taken place, and that " resumed operation" is not an alternative to be considered. LILCO Response at 6-10. LlLCO also argues that the environmental analysis need not consider the "no action" alternative because neither LILCO not LIPA would restart the plant, and taking no action to decommission Shoreham would result in the plant remaining "in a state of limbo, neither operating nor decontaminated." Id. at 10-11. Moreover, LILCO argues that the NEPA " scoping" requirements do not apply because the nonfederal decision not to operate Shoreham does not trigger any NEPA requirements. Id. a'
- 12. Additionally, LILCO disputed Petitioners' analysis of DOE's and NRC's emergency authority to take control of Shoreham. Id. at 12-15. Furthermore, 68 I
LILCO argues that: (1) the NRC need not make any findings regarding
" common defcase and security" at this time; (2) Petitioners were not denied any section 2.714 procedural rights; (3) the NRC need not defer to the CEQ's interpretation of NEPA regulations; and (4) CL1-90 8 was a correct interpretation of NEPA. Id. at 15-19. Finally, LILCO argues that neither the DOE nor CEQ comments recognized that no " federal action" for purposes of NEPA has occurred here. Id. at 19 22.
LIPA's submission raises substantially die same arEuments presented above by LILCO regarding the existence of " federal actions" and the alternatives of
" resumed operation" and "no action." LIPA Response at 410. Furdermore, LIPA asserts that NEPA scoping regulations were not violated because Ole NRC can discuss such issues when intervention petitions are filed, in order to resolve the question of standing.14. at 13. LIPA also argues that because no decision has been made whether an EIS is required, the issue of EIS scope has not yct arisen. Finally, on scoping, LIPA argues Diat the aim of the scoping regulations was fulfilled in any event because the Petitioners have had the chance to express their views. Id. at 14. LIPA also disputes Petitioners' assertion that the NRC neglected its responsibilitics under the AEA and NEPA and disagrees diat the NRC must defer to CEQ recommendations. Id. at 1517. Finally, LIPA argues that Ittilioners' pmcedural rights under 10 C.F.R. 6 2.714 were not violated.
New York makes many of the same arguments detailed above, including:
(1) that no " federal action" for NEPA purposes has occurred; (2) that " resumed operation" of Shoreham is not a reasonable alternative; (3) that NEPA scoping regulations are not at issue; and (4) that the NRC does not need to prepare an EIS for Shoreham.
IV. PFTITIONERS' STANDING As a direshold matter, LILCO also suggests that Petitioners do not have standing to file a motion for reconsideration because neither petitioner has yet to be admitted as a " party," Sec LILCO Response at 4 n.2. Ibr support, LILCO relies on Texas Utilitics Electric Co. (Comanche Peak Steam Electric Station, Units I and 2), CLI.89-6,29 NRC 348 (1989). We cannot agree because C1.1-89-6 is inapposite to this situation.
in Comanche Peak, CLI 89-6, we addressed a situation where an individual sought reconsidemtion of an order that dismissed a petition submitted by another party and that was issued before the individual had been granted party status.
We determined that the individual did not have standing to seek reconsidemtion of the prior decision in those circumstances. Sec 29 NRC at 354. In contrast, die decision that we are asked to reconsider today addressed previous filings by die same Ittitioners. Petitioners clearly have standing to challenge a decision 69
addressed to their own prior petitions. Moreover, while we agree that the decision may not be " final" for purposes of judicial review because it is not the conclusion of an adjudicatory proceeding, it includes important instructions on the scope of the proceeding that strike at the heart of Petitioners' concerns, herefore, it is appropriate for us to take up the motion for reconsideration on its merits.
V.
ANALYhlS A.
The Na',ure of the l'ederal Action ne law is quite clear that only a " federal action" triggers NEPA requirements.
Kleppe v. Sierra Club,427 U.S. 390,399 (1976); Aberdeen & Rockfssh R.R. v.
SCRAP,422 U.S,289,320-21 (1975). NEPA (kies not impose requirements on nonfedctal actions. E.g., Natural Resources Defense Council ("NRDC") v. EPA, 822 F.2d 1(4,129 n.25 (D.C. Cir.1987); District of Columbia v. Schramm,631 F.2d 854,862 (D.C. Cir.1980); Defenders of Wildlye v. Andrus,627 F.2d 1238, 1243 44 (D.C. Cir.1980). Morcover, as the D.C. Circuit noted in Defenders of Wildlfe, a " federal action" requires an " overt act"; simply acquiescing in a private party's action does not constitute federal action. 627 F.2d at 1244-45.
The fundamental flaw in Petitioners' and amici's arguments is their overly expansive vicw of the NRC actions at issue here. Petitioners correctly point out that LILCO plans to replace Shoreham's generating capacity with fossil, burning units. These units, the Petitioners allege, might have direct adverse environmental impacts which could be negated by the operation of Shoreham.
Rus, argue the Petitioners, the decision not to operate Shoreham triggers requirements for a NEPA review of any alternatives to that decision. Ilowever, as we took pains to make clear in CL1-90 8, the NRC action subject to NEPA is, by its broadest terms, confined to review and approval of the method of Shoreham decommissioning.8 Petitioners' argument that we have authority over the entire agreement to decommissien Shorcham is simply incorrcct.
Moreover, once it it seen that the NRC action is confined to review and approval of the method of decommissioning, it follows that the "no action" alternative is to reject a proposed decommissioning plan, not to reject any decommissioning altogether. As LILCO p% out, that action would result in the plant being left in a state cf limbo. LILCO's next sep would likely be revision of the plan, not operation of the plant. Rus, operation of Shoreham 3 When the NRC proceeds to review and appawe e decemussionirig plan. h wd1 decide what envinnmmtal evaluation will be required 32 NRC at 209. In making that review, *tilhe range of shernatives [in the FJS) need not eated beyond thnee wasmably related to the gwopet" Pmm Car Connemm Gmup v. UsD4,694 F.2d 721,769 (DA Cir.1981)(citmg cases).
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is not, in this situation, the "no action" alternadve. Operation of Shorrham is surely an alternative to IllfD's decision not to ogwrate, but this LILCO decision is a private decision not subject to NEPA. E.g., Kleppe v. Sierra Club, supra.
Moreover, even if the NHC could at this point order ojeration of Shoreham for reasons unrelated to its role in overseeing decommissioning (a matter discussed separately below), the mere decision not to exercise this authority is not a federal action sub)cet to NEPA. Defenders of Wilditfe, supra.
Another way to exarnine Ittilioners' and amici's arguments is to focus on the relative order of Litf0's decision not to operate and subsequent future NRC actions. LlLCO's decision not to operate Shoreham occurs prior to (or " upstream from" in LIPA's parlance) any " federal action" that may someday occur, i.e.,
a potential NRC order accepting a decommissioning plan for Shoreham under 10 C.F.R. 6 50.82, 11 may be true that "but for" the decision not to operate Shoreham, LILCO would not be able to seck permission to decommission the facility, flut private, nonfederal actions undertaken prior to or leading to actions that do require federal permission do not, in and of themselves, trigger NEPA requirements, ihr example, in NRDC v. EPA, supra, the court found that the private constructhm of a discharge facility was not a " federal action," even though EPA licensing of later discharges from that facility was required under the Clean Water Act. 822 F.2d at 127 31. "Until the private owner applies for a discharge permit, then, EPA lacks authority to regulate the owner's activities under NEPA and the Clean Water Act " Id. at 128 (footnote omitted). See also Edwards v. First Bank of Dundee,534 F.2d 1242 (7th Cir.1976) (authority of FDIC to license move by bank does not provide FDIC authority under NEPA to review bank's decision to demolish historic residence in order to construct new facility),
- 11. " Resumed Operatkm" Is Not a " Reasonable Alternative" An agency's environmental review "must consider not every possible al-ternative, but every reasonable alternative." Citizensfor a Better llenderson v.
//odel,768 F.2d 1051,1057 (9th Cir,1985) (emphasis added). See also Pied-mont lleights Civil Club, Inc. v. Moreland, 637 F.2d 430,436 (5th Cit.1981)
(NEPA " requires consideration only of feasible, non-speculative alternatives")
(citing cases); Afiller v United States, 492 F. Supp. 956, %2 63 (E.D. Ark.
1980), aft'd,654 F.2d 513, 514 (8th Cir.1981). See generally NRDC v. Call.
amry. 524 F.2d U,92 (2d Cir.1975); NRDC v. Aforton, 458 F.2d 827, 834, 837 (D.C. Cir.1972), in this case, we see no indication that either LILCO or the State of New Wwk plans to disavow their agreement not to operate Shore.
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ham. At this time, such an action would appear highly speculative at test?
After reviewing the numerous filings before us, we reaffirm our conclusion that
" resumed operation" of Shoreham is not currently a " reasonable alternative " In reaffirming this conclusion, we rely on the undisputed facts and circumstances associated with LilLO's decision in essence, we found that resumed operation is not a reasonable alternative tecause of die circumstances surrounding and leading to Lil CO's decision, not because of some legal grinciple that activities beyond the agency's authority are per se unreviewable, if we thought that the parties might repudiate their agreement and favor a retur 1 to operadon, we might not have made such a finding?
C.
NRC41andated Operation Is Not Yet Warranted in CLI 90-8, we noted that " absent highly unusual circumstances not present here,.. the NRC lacks authority to dinct [LILCO) to operate [Shoreham]."
32 NRC at 207. Petitioners now raise various arguments related to our authority to mandate operation of Shoreham under sections 108,186(c), and 188 of the Atomic Energy Act. See 42 U.S.C. 66 2138,2236(c), and 2238. See generally Ittition at 16-20, Petitioners argue that the NRC cannot find that the " highly unusual circumstances" do not exist without a hearing, We disagree. Congress clearly specified the circumstances necessary for such action. 'lhe essential prerequisites include either a specified congressional declaration under section 108 or the revocation of a license under sections 186(c) and 188. Those items are specific enough that we can take judicial notice of their existence or non-existence at any particular time.
Moreover, assuming arguendo that the recent congressional action authoriz-ing military action in support of the United Nations in the persian Gulf consti, tutes a "declara6on of war or national emergency" wi01in the meaning of section 108, lYlitioners ignore the necessity for prior action on the part of DOE tefore the NRC can act under any of the three sections. Under the Energy Reorga-IThe vahday d the ag eemem henween I.DCo and the state or New York has bem ut eld m its midal test in t
the New Yort cmrts. See Cir uasfor an orderly Energy Polcy v. Cwmo,144 htsc. 2d 281 (N.Y. sup Ct.
1989), af'd.159 A.D. 2d 141,559 N,Y S 2d 3 81 (3d Dept.1900), leave so appeal,erame.t.
N.Y. 2d (Feb.
19, 1991). Mortover, um Sme or New Yoti attll maimama subetanual contml over energy dectaions withm its bonfera. Su, e 3., Pac @c G,ns A Elecmc Co, v. Esarry Ano.rca Coma.,461 U.S.190,222 23 0983).
35mularly, Peduoncru claim that CEQ regulations mandata NRC cmsidersdm or resumed operatim in any shoreham EIS. Petium at 1316. Whne we sans that the CEQ's regulations are enutled to "aulutanual dererence" show applicable, the CEQ reguladens apply mly to "faleral acuans" to which NEPA spphes. As prev-iously explained, the dension nra to operste shoreham is a pmate deciswn. Wreover,in ad9 ting the CEQ regulades, we stated that the "NRC is not bound by those porunns or CEQ's M:PA regulations which have a substanuve impset m the may in whwh the Cmmuasion performs isa regulatory runcuans." 49 Fed. Reg 9352 (Mar.12, 1954). At lesat me coutt has held that CEQ smdelmes are ma bmdtag on the NRC ir not espnaaly adopal. Su imamk Ecology Acaso=,Inc. v. NRC,569 F.2d 719,725,743 (3d Cir.1989); Town 4.p o/ lower Anomove Crut
- v. Pa.blic Service Electric 4 Cae Co.,687 F.2d 732,740 n.16 (3d Cir 19821 72 i
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nizailon Act. 42 U.S.C i 5801, et. seq., which created the NRC and the DOE (at that time the Energy Research and Development Administration) from the Atomic Energy Commission, responsibility for action under all three sections rests jointly with toth the NRC and the fX)E. See S. Rep. No. 93 980, Appendix 2, Illi, Under section 108, once Congress " declares that a state of war or na.
tional emergency exists," the DOE must then issue a finding that "it is necessary to the common defense and security... to order operadon of the plant." DOE must then petition the Commission to issue an order authorizing operation of the plant. At that time, we would expect k DOE (1) to demonstrate that the congressional action satisfied N statutory prerequisite and (2) to explain who would bear the financial responsibility for the "[J)utt compensation" of LILCO's expenses necessary to ope: ate the facility. Scc 42 U.S.C, 5 2138.
Likewise, under sectica 186(c), ader the revocation of any license, DOE must again issue a finding that operation of the frility is "of extreme importance to the r.ational defense.and security" of the United States. DOE must then again petition the Comm'.ssion for an order directing operation of the facility and demonstrate how 'he "just compensation" requirement will te satisfied. Sec 42 U.S.C. 62236,c). Finally, under section 188, again after the prerequisite revocation of LI'40's license, the DOE must issue a finding that operation of Shoreharn is tiecessary for itt " production program" and then file a petition with the NRC, a sking that the Commission issue an order directing operation of the facility an;! demonstrating how the "just compensation" requirement will be satisfied. 42 U.S.C. 6 2238.
Both the petit'oners and DOE are free to seek revocation of the facility's license.' More importantly, DOE is free to issue the necessary fmdings and petition the Commission for an-appropriate order. In addition, we have taken no acdon that interferes with DOE's assertion that it has independent authority to order operation of Shoreham. See DOE Response at 20, cfring 16 U.S.C. 5824a(c). Ibrthermore, we have taken no action that prevents the DOE from "taking" Shoreham under the theory of eminent domain.8 In sum, 4 Any perwm may peudon the C<snmission under 10 C.F.it 12.206 to avoke the sharsham licenas by allegma se conduona spectned m sectum 156 h:udaners argue that we could not grara an opreung license if we knew that the plara etwld not opmsts and therefm the operaung hcenso may sww be tsvtaed under sectim 186, Nt the widduddmg af a hcaue in the face of an applicant's deciaum not to operate onutd be based upon the desire to em NRC samuces for nwen preams nerds, e mauer that becomes imlevant orus the renomes arm spnt and the license se issued.
8 Although w* have pctmitted IJ!fo to reduce stafrms at shorcham aM to taka other step in reduce maintenance costs consistan with the plant's defueled status, we have not auth< sued tJ1fX) to begin any mapw diamantling of the facihty hhint dunnandmg sad ather activtues that constitute deciunnussicrung imder the hRC*a ngulattma must await NRC approval or a decommissioning plan. See la C.F.R. ll 50.75, so.81 We verently addresaud these mauers whm we addensaed Petitioners' hearing requesta related to a pn>
posed "pmscarion mly" licavis fer shorcosm. See C1J 911, 33 NRC 1 (1901). A "ressm6 on only li-cense wdl not be ready to be issued before hhrth 6.1991. We would of course take appnynate sc-uan if, beim that date, Doll speeiricaDy (1) declares eat u wdl euher peuuta the Commissior, to order (Coo.m.e4 73 i
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Petitioners' arguments on this point are directed at the wrong agency of the U.S.
government."
D.
Additional Concerns Raised by Petitioners Ntitioners claim that our decision in CL190-8 violates our NEPA scoping regulations because the Commission barred consideration of resumed operation without benefit of NEPA's scoping process, Petition at 1113. See 10 C.F.R. 5651.28, 51.29. We disagree. First, the Commission has explicitly retained the authority to provide guidance at any point in the course of a proceeding such as this. See Public Service Co. of New flampshire (Seabrook Station, Units 1 and 7), CL190-3,31 NRC 219,228-29 (1990). See also Public Service Co. of New Ilampshire (Scabrook Station, Units 1 and 2), CLI 77 8,5 NRC 503, $15-17 (1977). Once we determined that the requested relief was not required and inappropriate, it was entirely proper to provide guidance to our lower tribunals at the earliest time possible -- in this case, at the outset of the proceeding. /?.g.,
Public Service Co. of fndiana (Marble Ilill Nuclear Generating Station, Units I and 2), CLI 80-10,11 NRC 438 (1980).'
Second, we explicitly pointed out that we have not yet determined that an EIS will even be necessary in this case, See CLI 90-8,32 NRC at 209. De scoping process is initiated only "[w]henever the appropriate NRC staff director determines that an [EISJ will be prepared...." 10 C.F.R. 5 51.26(a). As a result, scoping is not a relevant issue because discussion of EIS scope carmot precede the decision to prepare an EIS.
Third, petitioners have already availed themselves of the opportunity other-wise provided by the scoping regulations, namely to participate in the debate over the scope of any possible EIS. By filing numerous papers on this issue throughout 1989 and 1990, including their Joint Petition, Petitioners have had
- and exercised - the chance to express their views. Rus, their claims on this point are academic, Petitioners also object to the NRC taking " notice" of the agreements between LILCO, LIPA, and New York State. Petition at 25-27, llowever, the Petitioners have failed to demonstrate why the Commission should not be able to take notice of those matters. As a threshold matter, Petitioners have not even alleged operanon or shoreham, onkt operaum of the plant under its own authonty, or seize the plant by enunent danam, and (2) prevulca us with concate plans in taka such acuan, including the necessary hndings and informadon as dcsenbed shove. Ses y 72 74, sucre
' Minemer. Petitimers cannot bnatstrup NRC authonty to mandate operatim or shoreham under the AF.A on to NEPA. "NEPA, as a procedural device, docs nra work a broadoung of the agency's substanuve powers? MDC
- v. EPA, supre. 822 F.2d at 129 (cinns cases).
7 Peut oners have also claimed that their pnredural rights under 10 C.FA 5 2.714 have been violated. Ihtion at 22-24. We disagree. As we noted above. the Conuniasim has the inhermt mahonty to step into a prwec4hng and innue guidance at any time. See, e s.. seabrook. Cl.!W3. sures; Jehoek. Cl.l.77-8 supra.
-74
Out our recitation of the facts is not correct. Simply put, the existence of the settlement agrectnent is "a matter beyond reasonable controversy" and is
" capable of immediate and accurate determination by resort to casily accessible sourecs of indisputable accuracy." Government of l'irgin Islands v. Gereau,
$23 F.2d 140,147 (3d Cir.1975), cert. denied. 424 U.S. 917 (1976) (citations omitted).
11ere, all parties to this controversy have copics of the settlement agreement and are well versed in its terms and provisions. Moreover, the fact that the NRC must approve the transfer of Shoreham to LIPA does not give the NRC authority to void the settlement agreement per se or direct LILCO to operate Shoreham. Likewise, the fact that the parties to tie settlement agreement have the ability to set the agreement aside does not prevent us from recognizing its current status. Similarly, there is no reason why we should not take notice of the cuirent status of any legal challenges to the agreement. In sum, while the Petitioners may dispute the wisdom of the agreement, any legal challenge to the agreement itself appears properly to lie in the New York courts. Sec note 2, supra.
Yll. CONCLUSION lbr all of the above reasons, the Joint Petition for Reconsideration tendered by the School District and SE2 on October 30,1990, is hereby denied.
It is so ORDERED.
Ihr the Commission SAMUEL J. CHILK Secretary of the Commission Dated at Rockville, Maryland, this 21st day of February 1991.
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Cite as 33 NRC 70 (1991)
CU 913 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick in the Matter of Docket No. 50-322-OLA LONG ISLAND UGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
February 28,1991 The Commission dismisses, as interlocutory, Petitioners' appeal of the Li.
censing Iloard's denial of its request for an order that would restrain the Licensee from meeting and communicating with Commission adjudicatory employees and for other relief, Alternatively treating the papers before it as a request for dis-cretionary certification, the Commission denies the request in that it does not support the criteria for a grant of such relief.
The Commission also finds that the Licensing Board did not abuse its discretion in failing to certify the issues before it to the Commission.
RULES OF PRACTICE: INTERLOCUTORY APPEALS The Commission's Rules do not permit a person to take an interlocutory appeal from an order entered on his intervention petition unless that order has the effect of denying the petition in its entirety. See 10 C.F.R. 6 2.714a.
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RUI.ES OF PRACTICE: INTERLOCUTORY APPEALS (DIRECTEli CERTIFICATION) -
%c only procedural vehicle by which a party may seek review of interlocu-tory rnatters h a request for directed certification. Cleveland Electric illuminat-Ing Co. (Perry Nuclear Power Plant, Units I and 2), ALAB-736,18 NRC 165, 166 n.1 (1983),
RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REYlEW)
De grant of discretionary review by the Commission is reserved for those important lleensing board rulings that, absent immediate appellate review, threaten a party.with serious irreparable harm or pervasively affect the basic structure of the proceeding. Perry, ALAB 736, supra,18 NRC at 166 n.l.
- MEMORANDUM AND ORDER Dis matter is befora as on an appeal by the Shoreham-Wading River Central School District (" School District") and the Scientists and Engineers for Secure Energy ("SE2") (collectively " Petitioners") from an order of the Atomic Safety and Licensing Board (hereinafter " Appeal"). De unpublished order denied Petitioners' request for a restraining order and other relief.- Sec Order of November 19,1990 (ASLBP No. 91-621-01-OLA). The NRC Staff and the Long Island Lighting Company ("LILCO"), the lleensee, have now resp (mded.
After due consideration, we have determined diat the appeal is interlocutory in nature and thus improperly filed under 10 C.F.R. 6 2.714a.
I, llACKGROUND Dis matter began when the Petitioners cach filed petitions requesting inter-vention and hearings regarding three actions or proposed actions by die NRC Staff regarding the Shoreham facility. On October 17, 1990, the Commission
-forwarded niose requests to the Licensing Board for further proceedings 'in ac-
- cordance with 10 C.F.R. Part 2 and instructions contained in the Memorandum Opinion and Order. CLI-90-8,32 NRC-201 (1990), aff'd, CLI-91-2,33 NRC
- 61 (1991).
On October 24, 1990, Commissioner Curths informed the parties that he would visit Shoreham on %csday, November 13,1990. On Friday, November -
- 9,1990, Petitioners filed a motion that asked the Licensing Board to (1) restrain 77 1
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LILCO and alleged interested persons not party to the proceeding from meeting and communicating with any Commission adjudicatory employees; (2) restrain the " restrained persons" from allowing any visits by Commission adjudicatory employees to the Shoreham facility; (3) require the restrained persons to submit memoranda describing contacts with any adjudicatory employees relating to the Shoreham docket since July 14,1989; and (4) require the restrained persons to serve Petitioners with documents submitted to the Cornmission after July 14, 1990.
Briefly, Petitioners argued that the upcoming visit would violate the Com-mission's ex parte rule,10 C.F.R. 6 2.780, and the Government in the Sunshine Act. "They also argued that a restraining order was needed to ensure continued adherence to those requirements as well as to protect their due process rights and to avoid the appearance of preferential treatment or partiality, in essence, the motion sought to restrain LILCO from receiving Commissioner Curtiss on November 13,1990,-
LILCO responded on Monday, November 12, 1990, which was a federal holiday (Veterai.s Day). LILCO argued that (1) the Curtiss visit was not concerned with the matters at issue in the petitions before the Licensing Board; (2) Petitioners had no standing to request an injunction of the site visit; (3)
Petitioners had failed to exhaust their administrative remedies; and (4) Petitioners had created the emergency by unreasonably delaying tirir motion, having had notice of the proposed visit almost 3 weeks previously, LILCO proposed to respond to the non-cmergency portions of the motion under the normal timetable in the Rules of Practice.
While Petitioners had advised the Licensing Board on Wednesday, November 7,1990, that such a motion would be forthcoming, they waited until after the close of normal office hours on Friday, November 9, to telefax the motion to the Secretary of the Commission and to the Licensing Board. Order of November 19,1990, slip op. at 6. Moreover, the Licensing Board found that the Petitioners did not advise either the Secretary or the Licensing Board of the impending arrival of an after-hours filing. Id. On Monday, November 12, Petitioners' counsel communicated with the presiding officer to advise him of the filings.
Id. at 6-7.
II. Tile DECISION Ol' Tile 1.lCENSING llOARD First, the Licensing Board denied the request for emergency relief, Because the day on which the Licensing Board was first able to act on the request was a federal holiday, the Licensing Board was not in possession of the filings in the case and the Chairman did not know the location of the other members of the Licensing Board. Id. at 7, Ibrthermore, the Licensing Board determined 73 s
that it was unreasonable to expect a response during a 341ay weekend when Petitioners had not provided any advance notice of die after-hours filing or die need for expeditious action. Id. Moreover, the 1.icensing Board found that delays by the Petitioners in filing the motion helped create any ti.,cocy that existed. Id. Therefore, the Licensing Board denied the request for emergency relief as untimely filed. Id.8 Second, the Licensing Board determined that it did not have jurisdiction to grant the requested addidonal relief. Id. at 8-11. Specifically, the Licensing Board found that the Petitioners had " raise [d] the question of whether the Licensee as well as the Commission and its staff are acting in accordance with the law and whether they should be enjoined to comply." Id. at 10. He Licensing Board believed that it would have to hold a hearing on all aspects of the Commission's interaction with LILCO, not just on the aspects of the issues before the Licensing Board. De Board found that this question w~as outside its jurisdiction. Id. at 10-11. Ilowever, the Board concluded that the Commission had jurisdiction to grant the Petitioners' request and dismissed the request to allow the Petitioners to seek relief from the Commission. Id. at 11.
III. PLEADINGS HEFORE TIIE COMMISSION The Petitioners have appealed from the Licensing Board's decision, claiming jurisdiction under 10 C.F.R. 6 2.714a. Briefly, the Petitioners allege that the Board was empowered to issue the requested order "as a merely prophylactic measure [] to protect Appellants, regardless of whether wrongdoing has previ-ously occurred." Appeal at 4. Moreover, Petitioners allege that the " Board's Order makes no findings of fact and offers no conclusions of law" regarding their request for advance notification of any meetings regarding Shoreham. Id at
- 5. Finally, the Petitioners allege that it was an abuse of discretion for the Licens-ing Board not to certify the question to the Commission for its determination of which txx!y had jurisdiction over the issues involved. Id. at 5-6.
Both the Staff and LILCO argue that the petition constitutes an interlocutory appeal which is impermissible under 10 C.F.R. I 2.714a. In the alternative, both the Staff and LILCO argue that the Licensing Board was correct on the merits of its decision.
I The requait for emergency mher was derned by the Board's Chatrman stier having been telephmed at home by Petiumers' counset The remaining members of the Board later concuned in the Chairman's decunon. order et November 19.1990, she op at 7. thoners concede that sey dtaurante m Canmushmcr Cursus' visit u the Sharsham facility is now rnoot. See Appeal at 2 n.1.
79
I V.
ANAINSIS The Licensing Board Order before us is clearly interlocutory.
[lhe Ctunmissian's) Rules do nat permit a perwn to take an interlocukwy aircal frian an order eraered m his intervention peution unless that twJer has the effect of denying the petition in ws entiiety.10 ClK 2.714a; Gulf Swes Utitities Convuay (River limd Statitwi, Uruts I and 2), AtAB 329,3 NRC W1,610 (1976). and cases there cited.
Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units I and 2), ALAB-599,12 NRC 1,2 (1980), citing, inter alia, llouston Lighting and Power Co. (Allens Crxk Nuclear Generating Station, Unit 1), ALAB 585, 11 NRC 469,470 (1980).
"The only procedural vehicle by which a pany may seek review of interlocu-tory matters is a request for directed certification." Cleveland Electric Illuminat-ing Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-736,18 NRC 165, 166 n.1 (1983). Moreover, the granting of such discretionary review "is reserved for those important licensing board rulings that, absent immediate appellate re-view, threaten a party with serious irreparable harm or pervasively affect the basic structure of the proceeding." Id. (citation omitted), As the Staff correctly points out, Petitioners have failed to address these criteria in their appeal. See Staff Response at 7 n.10.
Therefore, treating the papers before us as an appeal from the Licensing Board's Order of November 19, we dismiss it as interlocutory. Treating the papers as a request for discretionary certification, we deny the request as unsupported. We also find that the Licensing Board did not abuse its discretion in failing to certify the issues lefore it to the Commission.
V.
CONCLUSION The appeal is dismissed.
For the Commission SAMUEL J. CillLK Secretary of the Commission Dated at Rockville, Maryland, this 28th day of February 1991, 80
i x
i Atomic Safety and Licensing Appeal Boards issuances i
ATOMIC SAFETY AND UCENSING APPEAL PANEL I
Chnstine N. Kohl, Chairman Alan S. Rosenthal Dr. W Reed Johnson l
Thomas S. Mooro i
l Howard A.Wilber l
G. Paul Boltwerk,114 l
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Cito as 3J NRC 81 (1991)
ALAD 944 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION A10MIC SAFETY AND LICENS!NG APPEAL DOARD Administrative Judges:
Thomas S. Moore, Chairman Christino N. Kohl Howard A. Wilter in the Matter of Docket No. 40 2001.ML KERR McGEE CHEMICAL CORPORATION (West Chicago Rare Earths Facility)
February 28,1991 Due to fevelopments occurring while the appeals were pending, the Appeal Douj vacates the U: casing B(nrd's disposition of Contentions 4(c),4(d),4(c),
4(g),2(k),2(p),2(s),2(ut and 2(h), fcund in L.BP-89 35,30 NRC 677 (1989),
and LUP-M9, 31 NRC 150 (1990). Even if these new developments did not compel vacation of the Licensing Board's decisions, the Appeal Board concludes that reopening the record on these contentions would te warranted, in addition, the Appeal Board reverses the Licensing B(ord's disposition of these contentions, as well as Contention 4(a). Finally, the Appeal Board orders the Director of NMSS to revoic the materials license amendment authorized try LBP-90 9, and it terminates the entire proceeding.
RULFS OP PRACTICE: STAY OF AGENCY ACTION (IRREPARAllLE INJURY)
Whether the moving party will be irreparably injured unless a stay is granted is "'[t]hc most significant factor in deciding whether to grant a stay request.'"
ALAB 928,31 NRC 263,267 (1990).
81
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Site POI.lCY; TRANSlil.R OF JUltiSDICilON TO AGREEN11:NI SI A'l1:
ATOhllC I:L ( 441Y ACT(AEA): TR ANSil-:R Ol' JURISDICilON 'lO AGREEhlEis JTATE I
'lhe unquestionable intent of NRC policy on the state agreement process under l
section 274 of the AllA, is that jurisdiction is to be transferred to an "agrectnent state" in an orderly manner with mininnt disruption to any pending licensing provecoing. Sec " Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assurnption Thereof by States 'through Agreement," 46 Ped. Cg. 7540, ~1543 (1981).
NitC POI.lCY: 'lRANSIT.R OF JURISDICTION TO AGREEh1ENT SAATE AEA: TRANSI'ER OF JURISDICTION TO AGREEhll:NT STA'lE 1hc trarnfer of NRC's jurisdictknt over $cction i1(c)(2) byproduct material to mi agreement state in and of itself does not necessarily demand immediate termination of1;n mi ting NRC lleensing proceedmg.
t 1
RUI.ES OF PRACTICE: MOOTNESS (PENDING APPEAL.)
ADJUDICATORY PROCF.EDINGS: MOOTNrSS (PENDING APPEAL,).
It is the duty of an appellate court, upon motion, to reverse or vacate the judgment telow and remand with a direction to dismiss an action that has Neomo rnoot "through happenstance" while pending on appeal. United States
- v. Alunsingwrar Inc. 340 U.S. 36,39 40 (1950).
HUI.ES OF PRACTICE: hlOOTNESS 4
ADJUDICATORY PROCEEDINGS: hlOOTNESS (PENDING APPEAL.)
'The Afunsingwrar principle is applicable to unreviewed administrative de-cisions, See AL. Afechling flarge Lines, Inc. v. United States, 368 U.S. 324 (1%)).
82
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RULl'S OF PRACTICl:: MODI NESS ADJUDICATORY PROCEEDINGS: MOOTNESS "Mootness" means the absence of a
- case or controversy"; i.e., "One issues presented are no longer ' live' or die parties lack a legally cognliable interest in die outcome." l'cwell v. AfcCormack, 395 U.S. 486,4% (1969).
RULES OF PRACTICE: MOOTNESS ADJUDICATORY PROCEEDINGS: MOOTNESS A pnty must overcome a " heavy" burden to demonstrate mootness. See County of Los Angeles v. Davle,440 U.S. 625,631 (1979).
RULES OF PRACTICE: MOOTNESS (PENDING APPEAL)
ADJUDICATORY PROCEEDINGS: MOOTNESS (PENDING APPEAL)
Vacating the lower court's dec ision is fitdng only if happenstance" prevents the completion of appellate review and if thk p~xedure docJ not prcJudice the rights of any of the pattles. Alwingwcar,340 U.S. at 40. See also Karcher v.
Afay,484 U.S. 72, 83 (1987); Unlied States v. Garde,848 F.2d 1307,1310 &
n.6 (D.C. Ci:,1988).
RULES OF PRACTICE: FINAL AGENCY ACTION Although a Licensing Board's initial decision on appeal is "prelimittary," it nonetheless becomes "immediately effective" insofar as it provides the authority for license issuance, which latter action is considered final for purposes of judicial review. See 10 C.P.R. 5 2.764(b); Afassachuscris v. NRC,924 P.2d 311,322 (D.C. Cir.1991); OysicrshcIl Alliance v. NRC,800 F.2d 1201 (D.C.
Cir.1986).
RULES OF PRAC11CE: MOOTNESS (PENDING APPEAL)
ADJUDICATORY PROCEEDINGS: MOOTNESS (PENDING APPEAL)
'There is ample room for discretion in deciding whether a case is moot, or whether some practical purpose would be served by deciding the merits.
If there is an adequate reason to preserve the judgment, the appeal abould be decided." 13A C. Wright, A. Miller, & E. Cooper, Pcdcral Practice and 83 i
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nocedure b 3533.10, at 430 (2d ed.19N4). See alw I'klus v. United 5twr.s Ird. of I'atole, M3 P.2d 240, 242 (O.C. Cir.1986).
RI:GUI.ATIONS: 10 C.I'.it. PARI' 40, API'ENDIX A UMTitCA: NitC 14F.GUI.ATIONSI Tall. LNG DISPOSAL. SI'l13 Criterion 6 establishes the basic perfortnance starKlard for a mill tailings disgxnal systern - there must be reasonable anura Ke of convol of radiological harards for 1,((O years, and in any event f or at least 200 years, and of limiting releases of ra(k n 222 frorn uranium bygrodtet rnaleriah, arx! radon 220 frorn
' irium byproduct materials, to the atmosphere. Sec 10 C.F.it Part 40, App.
A Criterion 6.
ItUl.ES Of PRACTICE NEW MATI'.RI Al.: VACATION ADjUDICATOltY PROCl4EDINGS: NEW MATERI AL: VACATION Agency case law makes clear that, when circumstances change while an adjudicatory decision is pending on appeal so as to supersede or to alter in a significant way the evklentiary basis of that decision, the decision should be vacated. Sec Tennesarc Valley Authority (Browns Ferry Nuclear Plant, Units I, 2 and 3), ALAll 677,15 NRC 1387 (1982).
ItUI.ES OF PRACTICE: NEW MATERI All VACATION ADJUlilCATORY PROCEEDINGS: NEW MATEltl AL; VACATION Vacation of a decision may be appropriate if the Appeal 11oard finds that new information is " material to the resolution of the issues before [itl" and that, "with appropriate opportunity for comment or rebuttal, (the information) might well have changed the outcome of the appeal." Browns Ferry, ALAll 677,15 NRC at 1393.
ItULES Of PRACTICE: NEW MATEltlAL; YACATION ADJUDICA' LORY PROCEEDINGS: NEW MATEltl Al.; YACATION COMMISSION PROCEEDING (S): PRECEDENT If an Appeal lloard decision "was losed on a record that no kmger represents the (current) situation... and will not be reviewed by the Commission, that decision [should bc] vacated and shall be given to weight as a precedent."
M i
J
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Tennes3rr Palley Autlerity (Dnswns I:ciry Nuclear Plant Units I, 2 and 3),
1 CLl 82 26,16 NRC 880,881 (1982).
I RULl:S Ol' l'RACTICE: NI:W hlA'll:RI Al.; VACATION AlijUDICATORY PROCI:EDINGS: NEW M ATl:HI Al.1 YACATION If, while a 1.icensing floard's decision is pending on appeal, tie applicar:t indicates its intention to alter its plans substantially, the Appeal lloard may vacale the Licenslog Incard's decision without prejudice. Srr DrImaras fourt d IJxht Co. (Summit Power Station, Units 1 and 2), A1.All 516; 9 NRC 5 (1979).
RULl'.S OF PRACTICE: NI'W M ATEl41 AL; YAC ATION i
ADJUDICATORY PROCI'EDINGS: NEW MATERIAL; VACA110N l'EDERAL COURTS: VACATION Agency practice of vacadng a decision when circumstances change so as to altet effectively the evidentiary record supporting a decision on appeal is fully consistent with federal court practice. Rule 60(b) of the Federal Rules of Civil Procedure provides that new evidence diligently discovered after trial and decision or "any other reason justifying iclief" can deprive a judgment of its operative effect. The "other reason" language in Rule 60(b) simply " vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice" Klapprott v. United States, 335 U.S. 601, 616 15 (1949).
RULES OF PRACTICE: ilURDEN OF PROOF As the applicant of a license has the burden of proof, the principal focus of the hearing is necordingly on its presentadon, not the staff's. Ser Consumers fourr Co. (Midland Plant, Units I and 2), ALAll 123,6 AEC 331,345 (1973);
fac(/ic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I arxl 2), ALAll 728,17 NRC 777,807, revicw declined, CLl 83 32,18 NRC 1309 (1983).
85
~.. -. -
1 ADJUDICATORY llEAllINGS CONSIDERATION Ol' NRC STAI F NI:PA REVIEW NEPA: NRC RESPONSilllLITIES The adequacy of the staff's envirtomental re iew can be challenged in a hearing. DiaNo Canyon, ALAD 728,17 NRC at 807.
NEl'A AND AEA: JUltiSDICTIONI REQUIREhlENTS A imding of adequate protection of radiological health and safety under the AEA and UMTRCA, (k>cs not recessarily mean that the NRC staff's envinmmental review under NEPA is sufficient Sec generally Limerick Ecology Aciton, Inc. v. NRC, 869 F.2d 719,729 30 (3d Cir.1989).
ItOLES OF PRACTICE: RESPONSilllLITIES OF PARTIES (TO INFORM OF NEW INFORMATION)
There is a long established obligation imposed on all parties in NRC adju-dicatory proceedings to call to the attention of lxsth the Licensing floard and other parties "new information which is relevant and material to the matters being adjudicated." Duke Power Co. (William D. McGuire Nuclear Station, Units 1 and 2), ALAD 143,6 AEC 623,625 (1973),
STAFF TECilNICAL POSITIONS: APPLICATION llEGULATORY GUIDES: APPLICATION Staff technical positions and the like do not have the force of regulations; rather, t!'cy provide guidance to applicants as to acceptable metixxis for imple-menting regulatory criteria. Vermon! Yanter Nuclear Power Corp. (Vermont Yankee Nuclear Ibwer Station), CLI 74-40,8 AEC 809,811 (1974); Petitionfor Emergency and Remedial Action, CL178-6,1 NRC 400,4WO7 (1978). "Sim-ply stated, [such) staff guidance generally sets rcither minimum nor maximum standards." Consumers Powr Co. (Big Rock Point Nuclev Plant), ALAD-725, 17 NRC 562,568 n.10 (1983).
RULES OF PRACTICEt REOPENING OF RECORD Under the Commission's Rules of Practice, a closed record will not be reopened unless the movant satisfies the three criteria found in 10 C.F.R. 5 2.734(a) - timeliness, safety or environmental significance, and materiality.
In addition,"[t]he motion must be accompanied by one or more affidavits which 86 l
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-. -.. ~.
- -. - - - -. - ~ - -. - - -
set forth the factual and/or technical tuses for de movant's claim Diat lie [three]
criteria,, have tan satisfied." 10 C.F.R. 6 2.734(b).
RULES OF PRACTICE: REOPENING OF RECORD STAIT TI: CLINICAL POSITIONS: SIGNilICANCE A staff" working paper" that serves only to explore a new approach and that does not conflict with stafI expert testimony in a proceeding is of no regulatory signl0cance. Consolidated Edison Co. of New York (Indian Ibint Station, Unit No. 2), ALAll 209,7 AEC 971,973-75 (1974). As such, a motion to reopen based solely on such a working paper will te denied. /d. at 972 74.
APPEAL llOARD(S): AtTIIIORITY: ACTION ON NEW MATTERS Altiniugh an Appeal Board ins the authority to hear evidence and decide matters in the first instance, the exercise of that authority has always teen solely a matter of discretion, dependent upon the pardcular circumstances of de case and available resources.
UMTHCA: PURPOSE Congress enacted UMTRCA in 1978 to ameliorate the healdi and environ-mental hazards presented by uranium and thoriurn snill tailings. De purposes of UMTRCA are twofold: first, to provide a remedial action program at inac-tive mill tailings sites, INb. L. No.95-604, i 2(b)(1), 92 Stat. 3022 (1978); and second, to provide a program for the regulation of " mill tailings during uranium or tlaium ore pmcessing at active mill operations and after terminathin of such operations," id. 6 2(b)(2),92 Stat 3022.
UMTRCA: NRC REGULATIONS
%c validity of the Commission's mill tailings regulations, specifically the 10 C.F.R. Part 40, Appendix A Criteria, has been upheld, Quivira Mining Co,
- v. NRC,866 F.2d 1246 (10th Cir,1989).
UMTRCA: NRC REGULATIONS NRC RESPONSIIIILITY:
COST I!ENEFIT ANALYSIS We UMTRCA cost berefit analysis only requires the Commission to conduct
" cost benefit rationalization"in issuing regulations and managing mill tailings.
Ouivira, 866 F.2d at 125158. That standard " requires the agency merely to 87 l
l
consider and compare the costs and benc6ts of sarious upgwtahes, and to choose an approach in which cmts and benefits are reasonably related in light of Congress' intent." Id. at 1250 (citing Ameritan Mining Congress v, T homas, 772 F.2d 617,632 (10th Cir.1985), cert. derded,476 U.S. I158 (1986) (AMC I)).
Uht'l RCAt NRC REGULATIONS; NRC RESI'ONSilllLITYt COST.IlENEFIT ANAL.YSIS 1hc agency's general endeavor to take into account tic economics of irnprovements in relation to tenefits to the public health and safety,'" set furth in the fifth paragraph of the Appendix A Introduction,10 C.F.R. Part 40, ensures that in future licensing actions the costs of regulation bear a reasonable relationship to its benefits. Gulvira,866 P.2d at 1254.
Uh1TRCAt APPLICATION: NRC REGULATIONS The fourth introductory paragraph to Appendix A in 10 C.F.R. Part 40, permitting licensees to propose equivalent alternatives to the Commission's criteria, fully meets all of UMTRCA's site Ocxibility requirernents. Gulvira, 866 F.2d at 1259-60.
Uh1TRCAt APPLICATION; NRC REGULATIONS The statutory language of UMTRCA makes no positive distinction letween new and existing mill tailings sites, and the legislative history indicates only that NRC is to " consider possible differences in applicability of regulations to existing versus new tallings sites." Oulvira,866 F.2d at 12(o n.17.
Uh1TRCAt NRC REGULATIONS; TAILING DISPOSAL SITES Criterion I of Appendix A,10 C.F.R. Part 40, sets forth the siting require-ments of the Commission's mill tailings regulations. Among other things, Cri-terion I requires that the following three site features be consklered in assessing the adequacy of a disposal site: (1) remoteness frorn populated areas; (2) hy.
drologic and other natural conditions that contribute to the isolation of tailings from groundwater; and (3) the potential for minimhing erosion over the long term.10 C.F.R. Part 40, App. A, Criterion 1.
M
.-~ =-
REGUI.ATIONS: INTERPRETATION
'Ihc starting point in interpreting any regulation is the language arxl structure of the provision itself ft)ng Island Ughting Co. (Shorcham Nuclear Power Station, Unit 1), ALAD 900,28 NRC 275,288, review declined, CLI 8811,28 NRC 603 (1988); I A Sutherland, Statutory Construction 6 31.06 (4th ed.1984).
REGULATIONS: INTERPRl:TATION in interpreting a regulation, we must bear in mind the elementary canon of construction that the regulation should le interpreted so as not to reader any part inoperative; the whole of the regulation must be given cffect. See Mountain States Tel. & Tel. Co. v. Pueblo of Saraa Ana,472 U.S. 237,249-50 (1985); 2A Sutherland 5tatutory Construction i46.06.
REGULATIONS: INTERPRETATION "Although administrative history and other available guidance may be con-sulted for bxkground information and the resolution of ambiguities in a regu-lation's language, its interpretation may not conflict with the plain meaning of the wording used in that regulation." Shoreharn. ALAD 900,28 NRC at 288.
ItEGULATIONS: INTERPRETATION Disregarding portions of a regulation is a wholly unxceptable method of regulatory construction. Rather, the regulation must be read as it is written and in its entirety. See Natural Resources Defense Council v. El'A,822 F.2d lot,113 (D.C. Cir,1987). See also Mountain States,472 U.S. at 249 50; 2A Sutherland, Statutory Construction i 46.06.
UMTRCA: NRC REGULATIONS; TAILING DISPOSAL SITES in judging the adequacy of an existing tailings site against the three siting features of Criterion I in 10 C.F.R. Part 40, Appendix A, arxl then comparing that site to alternative sites measured against the same siting requirements, the differences between sites become matters of degree; they are nonetheless to be measured by the same yanistick.
REGULATIONS: INTERPRETATION While care must always be taken not to apply dictionary definitions me-chanically in unintended contexts, ser l' armers Reserwir & Irrigation Co. v.
89
. _. _... -. =. - - - -. - - - -..... _ - -. - -
AfcComb. 337 U.S. 7$$,764 (1949), such application is agyropriate where the purpose of the C(unmission's word choice is evident.
UhlTRCA: NRC RI'GULATIONS; Tall. LNG DISPOSAL, SITI S "lSjiting is of paramount importance in developing optimurn tailings distusal programs. The problem of tailings disposal cannot be approached with the attitude that inadequate siting features can be ccanpensated for by design." 4$
Ped. Reg. 65,$21,6$,524 (1980).
UhlTRCA: NRC REGUI.ATIONS: TAILING DISPOSAL, SITF.S (NO ACTIVE h1AINTENANCE)
Criterion 12 of Appendit A,10 C.P.R. Part 40, requires that the fmal dis-position of mill tailings must te such that ongoing active maintenance is not necessary to preserve isolation. See also 10 C.P.R. Part 40, App. A, Criteri.
on 1.
Uh1TRCA: NRC REGULATIONS TAILING DISPOSAL, SITES REGULATIONS: INTERI'RETATION (10 C.F.R. PARTS 40 AND 61)
It is clear from the Part 61 regulations demselves that the Commission did not intend for any part thereof to be applied to Part 40 mill tailings disposal.
Set 10 C.P.R. I61.2.
ItEGUI.ATIONS: INTERPRETATION If regulations are to have any meaning, express exclusions and prohibitions must be obeyed. In some circumstances, if a regulation does not define a particular term, it may be acceptable to borrow the definitkin of a like term from another part of an agency'6 regulations. But this can never be the case where there are specific pnhibitions against such application.
RULES OF PRACTICE: SUhth1ARY DISPOSITION Only if there are no genuine issues of material fact and the moving party is entitled to a decision as a matter of law, may tic presiding officer grant a motion for summary disposition 10 C.P.R. 6 2.749(d). See, e.g., Florida Power
& Light Co. (Wrkey Point Nuclear Generating Plant, Units Nos. 3 tmd 4),
ALAB-660,14 NRC 987,1003 (1981)(citing Pirginia Electric and Power Co.
90 l
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(Nordi Aruia Nuclear l'ower Station. Units I and 2), ALAll 584,11 NRC 451, 453 (1980)).
RUI.ES OF PRACTICE: SUh1M ARY DISPOSITION (M ATI:RI AL FACT)
A material fact is one that affats the outcome of the litigation or tends to resolve any of the issues raised by the parties. Sec generally 10A C. Wright, A.
Miller, & M. Kane, Federal fractice and Procedure i 2725, at 93 95 (1983).
RULES OF PRACTICI::
SUMMARY
DISPOSITION (MATERIAL FACT)
If a disputed issue of material fact exists, a motion for summary disposition must fail. See, e.g., Public Service Co. of New flampshire (Seatwook Stadon, Units I and 2), ALAD-924,30 NRC 331,345-47 (1989).
RULES OF PitACTICE: ';"MMARY DISPOSITION in weighing the evidence, es well settled that all inferences must be drawn in f avor of the party opposing semmary disposition. Sec, e.g., Adicles v. SJ/.
Kress a Co.,398 U.S.144 (1970).
RULES OF PRACTICE:
SUMMARY
DISPOSITION; EXPERT WITNESS (ES)
As has been observed, "(c]xpert opinion is admissible and may defeat summary judgment if it appears the affiant is competent to give an expert opinkvi and the factual basis for t!c opinion is stated in the affidavit, even though die underlying factual details and reasoning upon which the opinion is based are not." Bullhuis v. Rexall Corp.,789 F.2d 1315,1318 (9th Cir.1985). See also Fed. R. Evid. 703,705.
UMTRCA: NRC RESPONSilllLITY1 COMPLIANCE WITil EPA REGULATIONS Concerning the longevity requirement of Criterion 6, the Commission ree-ognized that " EPA's primary design standard is 1,000 years. Accordingly, the Commission has no discretion to gromulgate a different design standard for a shorter peric.i" 50 Fed. Reg. at 41,856 (1985). "The 200-year minimum longevity ter,uirement (of Criterion 6] provides relict in those unique reclama-91
tion situations where the 1,00lbycar criterion can be shown to impose too ruuch of a cost hardship. 7hc Commiss9n views the EPA longevity standard to be 1,000 years unless site specific riscumstarws preclude meeting 1,000 yer.rs."
/d at 41858 UMTRCA: NRC REGULATIONS; EPA STANDARDS The concern of the Commission's mill tailings regulations that the design of r
tallings disposal sites effectively resist human intrusion can be traced. in part, to the EPA mill tailings regulations that are intended to inhibit the "rnisuse" of tailings. Sec 40 C.F.R. 6192.20(a)(1); AAfC /,772 F.2d at 632 33.
LICENSE: REVOCATION RUI.ES OF PRACTICE: LICENSE REVOCATION There no longer being a record and decision to support authorization of a license amendment, it neccesarily must be revoked as well. See Long / stand Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAll-902,28 NRC 4
423,434, review declined, CLi 8811,28 NRC 603 (1988).
AEAt IIEARING RIGilTl llEARING REQUIREMENT (MATERI ALS
- LICENSE) i The need for a new license amendment triggers the right to a hearing under section 189(a) of the Atomic Energy Act. 42 U.S.C. 52239(a)(1). See Philadelphia Electric Co. (Limerick Ocnerating Station, Units 1 and 2), ALAB-785,20 NRC 848,884 n.163 (1984); id., ALAB 778,20 NRC 42,48 (1984),
af'd sub nom. Anthony v. NRC,770 F.2d 1066 (3d Cir.1985).
ATOMIC ENERGY ACT(AEA): TRANSFER OF JURISDICTION TO AGREEMENT STATElIIEARING REQUIREMENT in any byproduct material licensing proceeding conducted by an agreement state, section 274(o)(3) of the AEA requires the State to provide procedures that include (1) an opportunity, after public notice, for written comments and a public hearing, with a transcript, (2) an oplxrtunity for cross examination, and (3) a written determination which is based upon findings included in such determination and upon the evidence presented during the public comment period and which is subject to judicial review. 42 U.S.C. 62021(o)(3). See State Agreement Policy,46 Fed. Reg. at 7544; 10 C.P.R. I 150.31(b)(3)(i).
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TECilNICAl, ISSUES l*lSCUSSED llypnxtuct Material Cell Iksign Erosion llatf lives Intrusion Barrier Mill Tailings Piobable Maximum Precipitation (or PMP)
Radioactivity Waste Storage Site Suitability.
APPEARANCES William D. Selth Chicago, Illinois (with whom Neil F. Ilartigan, Springfield, Illinois, and hilchelle D. Jordan, hiaithew J. Dunn, Douglas J. Rathe, J. Jerome Sisul, Rkhard A. Verkler, Joseph Williams, and Jowph hl. Claps, Chicago, Illinois, were on the brief and pleadings), for the People of the State of Illinois.
Jmepn V Karaganis, Chicago, Illinois (with whom James D liruotari, Chicago, Illinois, and Robert D. Greenwalt, West Chicago, Illinois, were on the brief and pleadings), for the City of West Chicago, Illinois.
Richard A. Meserve, Washington, D.C. (with whom Peter J. Nickles and lierbert Estreicher, Washington, D.C., were on the brief and pleadings) for applicant Kerr McGec Chemical Corporation.
Ilertram C. Frey and Marc M. Radell, Chicago, Illinois, for am/cus cutlac United States Environmental Protection Agency.
Ann P. Ilodgdon (with whom Patrkla Jehle was on the brief and pleadings) for the Nuclear Regulatory Commission staff.
DECISION Itading before us are the appeals of the Itopic of the State of Illinois ("the State") and the City of West Chicago ("the City") from the Licensing Board's February 1990 initial decision authorizing the issuance of a license amendment to the applicant Kerr McGec Chemical Corpomtion, for its West Chicago Rare 93
Earths Ibcility.8 'the license amendment terrnits Kerr.McOcc permanently to dispose of appro.timately 376,4(O cubic rneten8 of radioactive thoriurn "rmll tailings" and 00ict associated wastes in an enginected "dislosal cell" on 27 acres of the site of its Rare Isrths Ibeility - a facility that will then le decommissk)ned.' 'ihe site is located in the midst of a densely [vpulated residential area in the City of West Chicago in Dul' age County, IllitK)is. *Ihe waste is to be piled above grade, several meters over the water table, on compacted clay soils. A cap is to be placed over the waste, comiosed of i
several intermediate layers of clay, gcotextile material, and sand and gravel, topped with a twwfect thick " intrusion barrier" of graded clays and cobble and a twwfect thick cover of topsoil and vegetation. All together, the waste pile is to be approsimately 35 feet high, with side slopes of 1:5.*
While the appeals were pending, several significant developments occurred, including the Commission's approval of an agreement under section 274 of the Atomic Energy Act (AEA)8 transferring regulatory jurisdiction over "sectiori 11(c)(2) byproduct material" - like the mill tailings involved here* - to the State of Illinois. These significant developments subsequent to tic rerulering of tre Licensing Board's decision prompted numerous motions and other filings over the last year from all of Oc gurtles, several of which remain undecided.
Upon consideration of the lengthy record in this proceeding. Oc initial decision and related rulings of Oc Licensing floard, and subsequent pertinent events, we conclude, as explained below, Otat the Licensing Iloard's decisions must be vacated, or in the alternative reversed, and the license amendment necessarily must te revoked. We also conclude that dils NRC proceeding must be terminated.
I.
IIACKGROUND Kerr-McGee produced thorium at the West Chicago facility from 1967, when it acquired the riant in a merger with American Ibtash & Chemical Company, 8LJIP 90 9,31 NRC 150 (1990).
8Acc4mhng to cummel ror the stats, dus smaams w about $00,0u014ms. App. Tr_ s.
"railega" ses a sand-14e substana denned in en%m 101(8) d the Uranium MJ1 Tailmss Radiasmn C4mtrsd Act d 1978 sa "the tcmamitig pintmn or a metal heanns are after some er au or sudt metal, sudi as urannan, has beem entracted." Pub. L Na 95404. 92 stat. 3021,3023 (1978). "(T)aurgs or westes swoduwd by the entracuan or amcentretiam or urani,an nr thonum inun any are promaned pnmarily rur tas anurse matanal cortas" is sharactenrad u "bypmduce matenal" unwar sectum ll(e)(2) or the Ahmuc lunargy Act d 1954, as amended.
42 (15 C 4 2014(e)(2).
'NURifl m04, supp. Nn 1. *sugylernera to the Vmal I.nvironmental suicrnaru Related to the Dearnnussian-ing or the Rare l'anha heihty, went Oucago.111mma" (Apr.1989) theremattar slLs), at 3 3 to 3-7. 4 23,4 s$
to 4-s7, B4 to B.12.
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to 1973, when it ceased this operation. The NRC has had the disgusal of the waste materials generated at the West Chicago site under consideration since at least 1976? Shcutly after Congress enacted the Uranium Mill Tailings Ra-diation Control Act of 1978 (UMTRCA),' the NRC staff issued a raitice to Kert M(Occ advising that its existing license for the West Chicago facility was being amended to include a requirement that Kerr McGee sulunit a detailed plan for decontamination and decommissioning of the facility and dinjusal of the ore residues located at the site) Kert Mc0cc sulunitted a "stabitinition plan" in August 1979, and several months later the Commission gave notice of its intent to preparc a draft environmental impact statement (DEIS) "to support future licensing action."d The DEIS was issued in May 1982, followed a year later by the Final p.nvironmental Statement (IIS). The IES prepared by the NRC staff considered eight alternadves, none of which involved permanent onsite disposal, as Kerr McOcc hvi pmposed. The staff reccanmended approval of ons!te storage of the thorium mill tailings for an irkleterminate period of time, subject to monitoring before deciding whether to approve the site and cell design for permanent disposal."
Soon thereafter, the Commission issued a notice of opportunity for hearing on the licensing acdons recornmended in the FES, thus initiating this licensing proceeding " The State's request for a hearing was granted and it was admitted as a party to the litigation. Among the contendons it sought to raise was a challenge to the staff's proposal for indeterminate onsite storage as an imprope.
segmentation under the National Environmental Policy Act (NEPA)." 'Ihc State argued that Kerr McGec's proposal for permanent onsite storage mte;t le considered and rejected. The Licensing floard agreed that permanent onsite disposal must be considered, and, accordingly, it directed the stafI to prepare and circulate a supplement to its FES addressing this subject,"
The instant proceeding essentially remained inactive until 1989, when the staff issued its Supplement to the FES (SIES)." The Licensing floard sub-sequently admitted several of the State's additional contentions based on the 7 5ee lauer rnan R li. Cwuunsham to Kerrhome (Nm. 16,1978) [hemnertar 1978 Notice).
'l% 1. No 954m% 92 s at. 3021 (cudiried in ocauered serums d 42 LLs C.)
'1978 Nonce.
3 44 l'ed. Res 72,246 (1979). See gaaersity Kerr McGee Corp (West Chicago Rare I.an'se lsedity), ClJ B2 2, is NRC 232 (1982). d'4 sue nom. C4ty of 14 a.rt CAkage t. Mc. 701 l'.2d fd2 (7th Cir.19h3).
HSee IJtP.6442,20 NRC 1296,1299,1308,1313 0951). recon.r4re wa anied, IJiP 15 3, 21 NRC 244 0985) 33 48 iM Reg 26,3810953). The umunistasi subenpently dirated the rinmal heanns smwedures or 10 C LR. Part 2, sulyart o,in er 4 in this adpdicouan umumasam ontar or Nm. 3,1983 (urgwhhahed).
0 42 U.S C. 5 4321.
HIEP-5442,20 NRC et 1307-17 A st4$,ISP ts-3. 21 NRC si 251&
U See earra n<se 4 95
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b Sits '* It also ruled on a stalf snotion to hold the proceeding in abeyance. The occmion for the staf f's motion was a then pending request by Die State, mL-ing the Corumission to transfer its jurisdicthm over section ll(e)(2) byproduct enaterial, like the mill tailmgs involved here, to Oc State, pursuant to section 274 of the Al!A. 'lle staff estimated that it would take 6 to 12 months for the l
Comtnission to complete action on the State's request, and it expirued a de-sire not to devote further resourtes to this proceedmg. Tie State supported the Staft's anotion to hold the proceeding in abeyance, and Kerr.McGee ogyosed j
it. After considering tic equities involved and the resources already experuled in the litigation, the Ikard denied the staff's motion arxl set a uhedule for the I
hiing of sumrnary disgusithm rnotions and hearing."
in the meantime, tic United States linvironmental Protection Agency (EPA) reviewed the SFES and expressed certain conectns about permanent omite storage of the mill tallings." Pursuant to its responsibility under UMTRCA.
EPA has promulgated the gerwral health aral safety standards (the " Mill Tailings l
Standards " found in 40 C.F.R. part 192), w hich the NRC applies and impleinents i
in regulating the disposal of mill tailings uruler its own regulations in 10 C.F.R. Part 40, Apperxlin A. After being apprised of EPA's concerns about the SIES, the Licensing floard solicited comments from the partie4.3 in addition, the City of West Chicago, which had not previously sought to participate in the i
proceeding," petitioned for and was granted permission to participate as an interested government ulder 10 C.P.R. (2'115(c)."
following the filing of motions for summary disposition by both Kerr McGee and the State, the Licensing Board resolved most of the issues in Kert McGee's favor, and scheduled a tw-day heanng on two of the remaining issues for the nes.t month." On February 13, 1990, the Licensing Iloard inued the initial 3
decision now before us on review, lhe floard concluded that EPA's concerns about the SITS had "no direct impact on the admitted contentions" and thus need not be considered.n it then went on to resolve all the remaining issues in Kerr.McGec's favor and, subject to two conditions, authori7ed the staff to issue a license amendment to Kerr McGee permitting permanent onsite disposal of Ll'c 8'ljtP s916,29 NRC sus (19t9), thenams hoard Mamnandum and order or My 12,1989 (unpuhhshed) thatnaftar July 12 orderj "lJIP-8916, 29NRC at sl615.
"Ihard Notarnaum 89 4 (My 12,1959), tsuet irren R. spnnger to L swirt Ouly 27.1989), andI.ncimure thersmarter l'rA Cienmma m $113), attaehad in leuer inen DJ Rathe in 1111 rye (Aug 21.1989)
"luenaing naani Mermeendum and onlar ur Aug 24.1989 (unpu%almf)
- .arly nei the pnwnndmg. the Wwl Chwage (hmhet d cantneM wuhdren its pmbm to imervene. IMP-l 1
84 42,20 NRC at 1299 n l.
U lkessms therd order or Sept 5,1959 (unps.bluhed). Thu status allows e swernnentel essity to renopsie m a hevait and in fila en appeal unda 10 C i R. 4 2 742 withmt armaorug its cwn tmmmune see 10 C inn.
I2 71s(c) u TSP-89 35, llo NkC 677 (1989). IAasama lbstd Mamnandtrn amt ontar d Na 14,1999 (unpubhnhab D.DP 90 9. 31 NRC at 154 l
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4 mill tailim in a cell as described in Kerr Mc0ce's application arkt supierting materials.8d The State and the City appealed and rnoved for a stay of die lleense amendment authoritation. Iloth Kert McOcc and the staff opposed Oc grant of a stay, On March 13, 1990, we denied the stay motion, explaining in a subsequent memorandum that we could not find, at Olat Ome, any irreparable injury
"'[t]he most significant factor in deciding whether to grant a stay request.'"25 in this connecdon, we noted that Kerr-Mdlee's activities and eapatitures over use eru few tmeiths atille quite hmited ami, I
for the most pet, twfined to she wert that wieutd have to be conducted regardless of *hether the (xntaminated soils and stammts involved are ultimately dissned of traite to at awher 1mation. Es belns so, Kerr McGee's limited enginhtures donns the administrative egycal poccas cannte teamably le said to skew the uhmute cost 4rewfit analpis, abould h reed to k revisited 86 During the briefing and consideratkm of the State's and the City's motions 5
for a stay, several related events occurred. On February 23, the staff issued the license arnendment ta Kerr McGec.8' On or about March 6, however, the City issued a "stop work" notice and informed Kert McOcc that it was obliged to comply with a local ordinance concerning dust control and crosion before commencing the onsite dislosal operation. Kerr McGee challenged the City's action in federal distt ct court. The court denied Kerr McGec's request 3
for a preliminary injunction and was allirmed on appeal.2' Thus, although Kerr McOce's license amendment remains outstanding, dispos:d activities have apparently not yet begun.
Ilefore either the State or the City filed their briefs on appeal, we invited liPA to file an amlent rurlat brief expressing its views on the Licensing floard's decision.8' EPA accepted our invitation. In its brief EPA states that "the disposal rnethod currently approved in the initial Decision may not meet all of the applicable standards found in 40 C.13.R. Part 192," and recommends that we remand the matter to the Licensing 11oard for further consideration of the 2414 at 146 95.
18 AI.All 928,11 NkC 263,267 (19W).
3'Id at 2(8 (tm4mse ennmed).
37The C4=amaskm's Rules d Practia sudenne the Ikratnr or N.m neer Maunal safety and safeguards to issus lunes amen &nants 14e that hen irivalved within tan days or dw tacnains liesr(s truhat decwam, demptie de 7'dency a en arpe.at 10 CLit. I 2.7f t(b).
Kert McGee CAssucal Corp. v. Cary qf West CAscego,7321. sunt 922 (N D.111), asTd. 914 F 24 s20 Oth Cu 1990) The state also smaghi judicial intertessmn by the Ilknas stais court 6n uun maner. h chteined a ternpirery nousming ceder, ernoining Kerr Meore fran beginning any sma ruamn activmes at the site or raan truarfanns with inspection or the racihty by stew othciala Sasse sa ref. llersigen e. KerrKGee CAssiscal Corp.,
No. 90C14 220 (lu. Isth Car Mar. 14, 1990).
29 Antal Scard Manaanden and order or Mar. 21,1990 (unruhhahed) (ciung Cean, mare An.er Co. (U4 Rod here Nuclear Ptars), AI.AR M6,13 NRC 312,315 n.2 (19811).
f 97
. ~
- ~. -
-_____.____,_____.m___-
conunents !!PA submitted to the agency in July 1989 in connection with die S FliS."
As a result of IIPA's leief, specifying several areas in which that agency believes the Ken McOcc disposal voposal fails to satisfy the MiP 1allings I
Standards, the NRC stali requested approxirnately two additkoal months in whkh to file its trief in response to those of de State, the City, and liPA.
1hc staff's extension request noted that the !!PA brief has a "potetidally significant bearing on the arguments made by die State and the City."H 1he staff also asserted a need for more time to obtain a klittorul inftsmation from Kerr McGee and to analyt.c it to detttmine whedier dere is warrant for reconsideration of the staff's posidons on certain issues in this proceeding,"for example, regarding prolable maximum precipitauon arvj associated design and maintenance implicadons."" We granted the stafI's request," -
Over the next two months, the staff held several meetings widi Kert.McGee, obtaining additional information and details about the disixsal cell." At about this same time, the staff was also in the process of reevaluating its generic position on some of the same matters raised by the State during Oc learing and questiontv1 by D'A in connection with the SFIIS, On August 10, the stafI filed its brief, opposing the State's and Oc City's appeals. The staff indicates diat it has changed its position on certain issues frorn that asserted before the Licensing floard, and that its further, post hearing review of Kert McOce's disposal cell has resulted in "enginecting sgecificadons that may vary from Oc engineering implications of conclusions reached by Oc Licensing Iloard.""
1hc staff nonetheless concludes that the proposed onsite disposal is adequate to protect the public health and safety and satisfies the requirements of 10 C.I.R.
l' art 40, Appendix A,"provided,,, that the license is amended to incorporate Oc specifications for the protective rock and die other design details provided in 1
Kerr McOce's submissions (to the staff] of July 23,1990 and July 31,1990,""
While the staff acknowledges Otat the other parties are entitled to an opportunity to respond to this new information, it urges that this process take place before us, without a rernand to the Licensing Ikurd."
" Amu ar Cwine Inner d the Unned s aws imummental Pnnatun Agency (May 21,19W) thmemarter I.PA liner) et 2 3, ts. See aarts p. 94 8' NRC starrs Mauan tw sn I.stmainn or Time (May so.19w) ai ).
"14 et 2.
" Arteal liieril Mamurandurn and order of June re.1990 (unpubbatedl "See, e g,16oant N,*ta.aturu Mb4 (July is,19901 MOS (July 31,19w, reassaed Aus 7.19Wh 90 04 (Aug 3.1990x MOs (Aug 8,19N). Althmsh the stam and Cuy stre pornurwd in attend thena meetsnsi. they was nim ans,med io gurtactpsw.
"NRC sta t liner in Response to the linefa d the slaw or China,04 Cup ur wena Osago and ce U.s r
immuuneraal Pnnenum Agency (Aug 10,1990) theromsfier NRC start linerj si 38
'*lkd Uld at 38 39.
98 aa
._______m__
m.____
1 i
The stall's brief prompted a rnotion Inim the State and the City to vacate the license amendment issued to Kerr htcGee because lalhe design anumsd by the itJtenung therdj is not the design vm telore or A15eal Ibard. Indeed. KerrMOce and the NRC staff have now rejeaed the draign assumpum d the likensing Ikard lamroved reojed arid have orfered a new design baard <* damatkaUy 18 j
diffected tethnkal sisumithme i
'Ihe State and the City request that this matter also te remanded to the Office of Nuclear Material Safety and Safeguards (NMSS) for processing as a new license anendment application. In the alternative, the movants cmtend that the adjudicatory record be Icopened and remanded to the Licensing floard for j
consideration in the first instance. Kerr.McGee opposes the motion, arguing that any new developments occasioned by the staff's consideration of EPA's concerns are beyond the proper scope of tin: proceeding. While the staff contends that we should proceed with review of the Licensing floard's decision, at the same time it has no objection to reopening for our consideration of certain new information. The staff also repeats its earlier view that the other parties should have a chance to respond to this new information.
Following the receipt of the State's, the City's, and Kerr McGec's briefs in reply to that of the stafI, yet another event occurred that would have an cffcct on this protracted litigation. On October 17, the Commission approved the State's request, pursuant to section 274 of the AEA, for the authority to regulate $cclicm 11(c)(2) byproduct material." This agreement, which took effect on Novernber 1,1990," led to another round of motions. "Ihe State and the City now maintain that this proceeding is moot by reason of the Commission's transfer to the State of regulatory control over the mill tailings here involved. Asserting a lack of jurisdiction, they move for termination of the proceeding and vacation of the Licensing floard's initial decision. Kert McGec opposes both terminating the proceeding and vacating the lloard's decishns, and it urges us to resolve the pending appeals. It also argues that, if we nonetheless terminate the proceeding, the Licensing Iloard's decision should le allowed to stand for equitable reasons.
The NRC staff argues that the pmceeding should be terminated but the decision below should not te vacated.
3s Mstum to Vocals as Mms the thenne Arnandnent end to Romand... to (NMis] nr to Reqa es Heund and Resnand to 1Joensmg Ibard ( Aug 31,1990) thermnafter Miamn to vusw) at 2 (anphaos in anginal).
"$wre ofllana s CtJ 909 32 NRC 210 ruonndereswa demed ClJ 9011 32 NRc 333 09%f) pentwafor i
reeww pen &ng su aam. Kort.McGee Chemk nl Corp, y Unaed $wus, No. 901534 (n C. Cst. t>\\ed Nm.14 1990). *the Carnmaamn had guevknaly entered into an agreement transfernns junadwunn to the stow war other types d nuclear matenal. See 321 ed Reg 22,Rf 4 (1987), revww den,ed se anat Kerr McGee CAemel Ceep.
- e. NWC. 903 F.2d 1 (D C, CA 1990).
"35 i ed. Reg 46.591, 46.593 (1990).
99 P
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I matly, nn December 5, the Illinois Department of Nuclear Safety (IDNS) notified Kerr McGec that, as a result of the State's txent assumption of jurisdiction oser section 1l(c)(2) byproduct material, it now has audwrity over the NRC license issued to Kett McGee for the onsite disposal of mill tailings at West Chicago. The IDNS went on to inform Kerr McOcc that its license would expire within 90 days of receipt of the letter (i.e., March 10, 1991), but that Kerr McOcc could apply for a new license with the IDNS Kerr McGee quickly moved for a protective order from us, arguing that the IDNS letter revealed an inappropriate attempt to arrogate our audority to decide, among other matters, t e State's and City's own pending motion to terminate and vacate. Kerr McGee claims that a protective order is necessary to preserve our jurisdiction and die status quo, as well as to prevert unspecified irrelutable harm to Kerr McOcc.
l 1hc State, City, and staff all opgese Kerr McGec's motion.
On January 16, 1991, we heard lengthy oral argument from all the parties (except amicus epa) on the appeals; 'he motion to vacate the license amendment and to remand for consideration of recent new developments in this case; and tic motion to terminate tic proceeding for lack of jurisdiction and to vacate the Licensing floard's decision, II, Tile EITECT OF Tile 'l RANSI'ER Of JtlRISDICTION TO ILLINOIS
- lhe State and the City argue that, as a consequence of the Commission's October 17, 1990, approval of the agreement transferring regulatory authority over section ll(c)(2) byproduct material - the subject of this proceeding -
to the State, the Commission has affirmatively relinquished its jurisdiction (and that of its adjudicatory boards) over the instant proceeding. In ticir view, this lack of jurisdiction males the case now moot, and our decision in the Sheffield proceeding'2 requires that we immediately terminate this case and vacate the Licensing Ikiard's decision, removing all operative effect. In She/Jictd, while the case was Nnding before us on the appeal of the respondent in that show-cause proceeding, the Commission agreed to transfer its regulatory authority over the Sheffield waste disposal site to lilinois pursuant to a section 274 agreement.
Noting that the NRC staff had withdrawn (or was alout to withdraw) its show-cause order that initiated the proceeding, and citing the Supreme Court's decision
'I tatter frmi ) o Aleger tn 3 C. staataw (dned ik. s,1990, ard v. y ed as "nueived" by Ken 4LN m h 10,1990), citaJed as 1.shibit I to Kerr4hOce's Masmn rar a 1%issw onter (th. 12, 1990) 4 M Ps licek gy. Iw. (sherrield,111mais Iow Isvol itsJmeetive Weste thspaal site). AIAH M6,25 MtC 897 i
0 987).
Maimn in Tsemmna l'n= reams and to vuata Imt.s1 twumn ror !M or Jons&ctmn (rh 22,1990) at 13 i
100 l
I in United States v MunAingwrar Inc we vacated the Licensing floard orders pendmg on appeal and terminated the proceeding *'
Kerr McOcc strongly oppnes the State's and the City's motion, it points out that, in responding to a petition for reconsiderution of the decision approving the section 274 agreement with Illinois, the Commission esphcitly (ktclined to express an opinion as to how the motion to terminate and vacate should be decided.** Kerr McOcc also argues that [tlhe Commission has only a[ proved de State regulatory program in general terms and not as applied to any specific site, including, in particular, Oc West Chicago facihty," in acklition, it distinguishes Shrffield and asserts that, inasmuch as the propiety of Kerr-McOcc's disposal plan remains a live controversy, the case is not rnoot, making the agplication of Mun.tingatar toth inappropriate and unfair in the circumstances here," 1he staff agrecs with the State arxl the City that die proceeding must be terminated, but argues against vacation of the Licensing Ikurd's decision, contending that neither Sh<garid nor Munsingwcar requires such aClion herC."
We think it clear that, in executing the section 274 agreement widi Illinois 3
last f all, the Commission did not intend for this proceeding to cease immediately simply by virtue of the existence of that agreement. Well aware of the status of this pmeceding, the Commission had at least two opportunities to terminate the matter itself or to direct us to (k) so, and, as Kerr.McGec points out, it declined to do either.'" The Commission's approval of the agreement with '.llinois is also couched in unmistakably generic terms and refers to another potential, site-specific proceeding involving de West Chicago site,$5 Further, the Commission policy on the state agreement process, pursuant to which the agreement was negotiated and executed, provides that, lijn effectmg the disumtinuance of junidictkin, appropriate arraarenicat.t will be niade tiy NRC and the State to ensure that there will tv no interference wah or interruption of tkeurd activnies or the process;,,,]liceve applaaticni.r, by ressoa of the staufer *l The unquestionable intent of this NRC policy is that jurisdiction is to be trans.
ferred to an " agreement state" in an orderly manner, with minimal disruption
'4 340 U s. 36,39 410950)
- $ 5ArgwM. 25 NRC at 898 99 "Lett McGee ogynsitum to Stais and Cny hLeon tolermmate and Vaate (Nm.13,1940) ai 2 (ciung ilkwu, ClJ M11,32 NkC at 334).
ld at 3 (ciung flaeone,Ctj 90 9,32 NRC at 21617, and M, r3J M-11,32 NRC at 334)
- l
14 at 3,715.
"NRC st tf Respone to hans M<tre in Termmste Praerang and to Vacate imbat thaum (Nov. 19,1990) 83er gewelly 144= oar, Cl1 M 9,32 NRC 210, af, Clj-M 11,32 NRC 333.
3114,(1J M9,32 NkC et 215-17.
$2.Cntana far (hadame d sosies and NRC in thsamtuwame or NRC Neguisury Authonry and Assarnpute Therent by Sta;ea 'ihr nigh Agmvwnt" [hereinaher state Agmatwr41%cy),46 l ed Reg 7540, 7541 0 981)
(emphpas addad).
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4 to nny pendmg liceming pnwceding, such as that here " *the agreement with Illinois in this case contains no iruhcation that " appropriate arrangements" have licen made to assure Otis orderly processl indeed, it is silent as to its effect on any pending liceming or enforcement pmecedings." It is reasonable to infer fnwn this and fmm the Commission's statement dechtung to express an opinion on how the motion to terminate and to vacate should be decided,$5 however, that those " appropriate arrangernents" are to be fashioned in and duough this
]
adjudicatory proceeding, lhus, in these circumstances, we find unpersuasive the argument that the transfer of jurisdiction to the State in and of itself demands immediate termination of this proceeding.
We also disagree with the State and the City that this proceeding is rnoot and that the Afunsingwrar ese thus requires vacation of the decisions pending appeal. The Court in Afunsingarar held that it is the duty of an appellate court, upon motion, to reverse or vacate the judgment below and remand with a direc00n to dismiss an action that has become moot "through happenstance" while pending on appeal" "Mootness" means the absence of a " case or controversy"; i.c., "the issues presented are no h)nger ' live' or the parties lack a legally cognizable interest in the outcome,"" But here, Kerr McOcc has not retreated from its onsite disposal plan, and the lidgation over it promises to continue among the principal parties in a variety of federal, state, and administrative forums, arnply demonstrating that the controversy is quite alive and active, The State and the City have thus failed to meet their "' heavy'"
burden of demonstrating mootness,88 11 is also clear from the case law that, even if this case can te considered technically moot by remon of the agreement transferring jurisdiction over byproduct material to the State, Afunsingarar (k)cs not necessarily require 83h (ann <a seasonably be disputed that "the prmesamg or Lamse swinauers" necessarily includes any hearms held therenn.
8'$ee 551ed. Reg 46,591. The enginal agnanant with Dianms tree seces nets 39) is aimaady sitern in this regard. See 52 led. Reg at 22,864. ! ar do on Camrmaskm's *Agnanen stue" regulanons shed any hght on what happens to proceedmgs pendmg at the ume e sectaan U4 agnemau is esa6vted See 10 CLR.1%n 150.
883ee Ilhao4r, C1J Mll,32 NRC si 334.
"340 lis. at 39 40. The Court art ed this Pnneiple to memewed admmmrauve deemans in AL MerMeas h
Rege liaas, fac. v. thwred 5snes,368 U.s. 324 0961).
37ta=vil, McCornut 395 U.s. 486,496 (1964).
ss3es Couvy e/lar Angelas v. Dev s 440 U.s. C.$,631 (1979)(quoung U= red Staus v. WJ. Great Co,345 U.s 629,632 33 0953)).
Because our dansmn in 34 (fkald,25 NRC 897, scpreamta a straightfamard appbcauan or Maarengwear, it 4
does run dictate a dMerent outcome here. The stata and the City cite to mly tow othat case as support rm ther view that, in and or haalt, a transrer or junsdiction rmm one authonty to another, prww to the completam or spellata review, neders a case mme and thereby requucs the vocatmn or the underlying dectaian.1 heir rehence m escerpts isH out or emtest rne i er decismn in KemMcGee ChemucelCorp. (Kress Creet occontaminsuon),
AIAB.867,25 AC 900 09g7), however,is misplaced, we ecmcluded there that the agawnent in quesum had ant transfened junsdictmn to Bhnma twer the panacular type or nucitar matenal at issus in that prmeeding Thus, it was tut neiessary ror us to decide how the pmunanns should he terminated and ir vacaum was appnynata, and es e.aphes!y dothned to da ao.14 at 911 & n.ls.
1 102
l 1
l E
a vacalmn of the judgment below 1he Court stressed in Afun3ingwrar dut vacating the lower court's (k'cisio.. was fitting only if "luppenstance" prevents Oc c(unpletion of appellate review and if that procedure does not prejudice the rights of any of the partics? Relying on this reasoning in Karcher v. Afay, the Supreme Court dismissed the appeal for want of jurisdiction, but declired to vacate the lower court's decision.1he Court concluded that the " controversy did not tuome moot due to circumstances unattributable to any of the parties.
1he controversy ended when the losing party... declined to pursue its appeal.
Accordingly, the Afunsingarar procedure is inapplicable to this case **So too, the court of appeals in United States v. Garde declined to vacate the lower court's decision, even though die case became moot while the appeal was pending.1he court determined that it would be unfair to the parties that prevailed below to kisc the ongoing tenefits and operative effect of their victory in district court as a result of actions taken by the losing party while its appeal was periding
Although one can debate where the responsibility, in fact, lies for effecting the transfer of jurisdiction over mill tailings from the NRC to Illinois, no one can reasonably characterire this event as " happenstance" or an action "unattributable to any of the parties." The State actively sought this new regulatory authority, over the strong objections of Kert McOccFihis is not to imply culpable behavkir on the part of the State in secking the transfer of jurisdictkwl or on the part of the Commisskin in agrecing to it; indeed, section 274 of the AllA seemingly encourages such agreements, it does, however,
. render inapplicable the mechanical application of the Afunalagurar doctrine.
'The Supreme Court also did not expect rigid adherence to Afunsinga car wheti the rights of any party might be prejudiced. While Oc extent of harm to Kerr-McGec's rights can be disputed, it cannot be gainsaid that the act of vacating the deciskwl below, which would in turn neccesarily require the revocation of die license amendment already isseed to Kctr McGee, surely amounts to the Lind of prejudice the Court in Afunsingatar sought to avoid.*' in other words, Hs40 U s. at 40. The "han<mstante" det led to the mt=4neas tn hanagnva was the anc<narid or dw prue or the cwnmoday onld by the treptrutent in that case 'Dus ps1rasts with the rese at ter,in wluth der regulatam or the mdlladman at Kere MtOne's west Oacago sne has nin been ehmmated, his rathe.r transferred to amther authcmty
- "454 U.s. 72,83 (1987)
'l848 F.2d 1307.1310 A a 6 (D C Chr.1988).
62We wea, however, that de Oty - also en ansliant hertre us (ue avve p. % & nrae 71) - mas na a pony to ow staw's rapa rea de uansrer or regulauwy saouruy
'Isee Me p 1**
- in this regard, the Court enade espbcit reference in the rect that the enesaum mmaed im anmal ou *tmly prthminag " 340 U.s. at 40. Ahhnugh the Ixensms H<ess iroual deiaast horam us on aneal u ah
- )wthmmary" it n<methehus bruame "insned su.ty effative" ansorar as o pnwuled de authmiy rar Iwaine issuante, s%ch laner acunn is emandered rinal rar purptmes d kwhcial review, see swwo nme 'U. MatsaAertu o h'#C,924 F.2d 311,322 (D C. Or 1991), Oyrserdell Aiheace v. MC,8(U F.2d 1201 (D C Gr.19tio).
103
_ -. = - ~ ~
l if the deciskwt below is to te vacated and the license revoked, it should be thus after con 9deration on die merits, not as a consequence of applying the largely procedural rule of Mwisingwear.
Iloth courts and commentators recognize tha', if there is any doubt as to mootness, the letter course is to decide the case, "Tiere is ample room for discretion in deciding whether a case is rnoot, or whether some practical purpose would be served by deciding the merits, if there is un adequate reason to preserve the judgment, the appeal should be decided."" In short, the very principles that underlie the Mwisingwcar do trine strongly militate against its application by role in the circumstances here. 'Ihus, insofar as the State's and the City's October 22 motion seeks the immediate termination of this proceeding and the corresponding vacation of the Licensing Board's initial decision, by reason of the Commission's approval of the agreement transferring jurisdiction over mill tailings to the State, the motion is denied.
Ill. DEVELOPMENTS SINCE Tile ISSUANCE OF TIIE INITIAL DECISION As noted above, following the filing of the staff's brief on the merits in response to their appeals 'he State and the City filed a joint rnotion to " vacate as moot the materials license amendment issued to Kert McOce" as a consequence of the Licensing Board's initial decision, to rernand this matter to the Dir clor of NMSS for review of "Kert-McOce's new design," and, in the ahernative, to reopen tic record of this proceeding and to rernand it to L e Licensing lioard for consideration of "wheuct Kerr McGec's new cell design satisfics" 10 C.F.R.
I'dtt 40, Appendix A."'The State and the City argue that this action has tecome necessary because, subsequent to de issuance of Oc Licensing 11oard's decision.
(1) Kerr McGee has made design changes: (2) the NRC staff has reversed Oc posidon it took in the hearing below and has rejected the design approved by de Licensing Board; (3) Kerr MeOcc, the staff, and EPA have submitted into tic record of dils proceeding substantial " additional material evklence that goes to the heart of this matter;" and (4) Kerr.McOcc and the staff now rely on the rock ripnip (i.e., clay-cobble) intrusion barrier (rather than the top vegetativo cover)" as the primary means to prevent crosion."
To understand the import of the State's and the City's motion, it is necessary to view it in the context of the pertirent contentions admitted for litigation and 1-M13A C Wright, A. Mdlet. & F cooper, reJeral Pnarhcs ad PreceJwe i 3533.10, at 430 (2d ad 1984). Ses ebe Pasm v Unded ssenes 84 e/rarels,543 F.2d 240,242 (D C Or 1986).
- Mouas to Vacate at 1 (emgene in origmsl).
U $en smre p. V
" Mouan to Vscene et 2.
I 104 l
the governing regulatory criteria, found in 10 C.FA l' art 40, Appendit A."
Ibr example, Criterion 3 states that "[tlhe ' prime option' for disposal of tailings is placement below grade," but fecognires that full below grade bunal inay not always be " practicable." In such cases, "it must be demonstrated that an above grade disposal program will provide remonably equivalent isolation of the tailings from natural crosional forces." Criterion 4 establishes certain site and design standards that "must be adhered to whether tailings or wastes are disposed of above er below gnxic " fbr instance, (a) Upstream rainf all catame:S areas must be minimiird to decrease ercaion pxential aM the site d the floods whis could ende or wash out sectams of the tai!mgs dismisal
- arti, ee.
(c) linbankment and cover skycs must be relatively flat after final stabilitatum to mmimize ensnm guitential and to provide cmscrvauve fadors of safety assuring long-term stabihty.
(d) A full self-sustaining vegetative awer must be established or rod cover empkiytd to reduce wind aM water crosian to neghgib'e levels.
Where a full vegesative c4wer is ext lAtly to be self-sustammg due to chmatic or other unditxes, sua as in semi and ar>J and regims, rod cover vnust be einpk,yed m skges of the impundmers system.
De following fadors must he considered in estataishing the final nd cover design to avoid displactmera d rud particles by hurt an and ammal traf fic or by natural pancas, and to peclude undercutting and piping:
Shape, sire, c4xnpositian, and gradatim d rod particles (enterling bedoms matenal average particles (sic] sire must te at least addie sire or greater);
R(d cover thidness and rming d partides by sire; and Stecpiese d underlying abpes.
Individual rud.agmerna must be dmse, smnd, and resistara to abrashst, and must tr I
free innt trads, seams, and other defeas that would terut to unduly increase their destruction by water and front actkms.
In additkm to prwidmg for stabihty d the impoundment system itself, overall statuhry, croskm potential, and georrort ulogy of surroundmg terrain must be evaluaird to d
assure that there are swa mgoing or poiential pnwcesses, sud as gully ennion, whis would lead to impoundmers instabihty.
Criterion 6 establishes the basic Informance standard for a mill tailings disposal system - i.e., a design that provides reismable assurance of cuarol d radiological haurds to (i) be effective fur 1,000 ycirs, to the caten(tl ressunably aduevable, and, in any case, for at least NO years, and (iG hmit releases of redon.222 inen uraruum byproduct matenals, and radm-220 fnwn thorium t3 product matenals, to the atmosphere so as to run cacced an average release rate d 20 4
6'i~ur a mire in desh discuanon of UMTRCA and the Artendis A cmena pnanu; gated thercuiuta, su Wra 39 1E29.
105
~
pumies pes vparv inoce pre acuev.i.. to the e end prutuhle diruughout the elletthe desigo life determlncJ gwaa'd to (a) Owe. ihstmee tumited }
Finally, Cruerbn !? tcquires 0 at "[tlhe final disposition of tailings or wastes at milling sites thculd te such that ongoing IKlave maintenance is tot necessary to preserve isolation," State Contenties 4(c),4(d),4(c), and 4(g), admitted by the 1Jcensing Board, alleged Otat Oc Keit-McGee proposal would require " active maintenance" or woald not ruinimirc crosion, contrary to Critcria 3,4,6, ark!
12?0 in dicir tiration to vacate, die State am! the City focus on prirripally direc matters addressed by the pu11es in their gesentations and resolved by the Licensing 1kurd ag;Unst t!c p>siuoti asserted by the State. First, ihey point out diat Kert McGee a:xi Oc staff maintained below that the t@ vegetative cover on die pile would provide the primary crosion protection?' Consequently, the Licensing Board found that it was not necessary to "scrutinlic the pararneters of the rock riprap intrushm barrier to determine if the barrier itself will prevent crosion," as the State had urged?2 Second, the State and the City note that "the Licensing ihurd - at the urging of Keir McGee and Staff - adopted a narrow definition of txtive maintenance, such that Kctr McGec's anticipated maintenance of the vegetati(m cover could not be considered ' active.'"" Specifically, under Kerr-McGee's proposal, for the vegetative cover "to be sustained grimanently as a prairie ecosystem!,) it must be burned or mowed every few years, otherwise natural vegetative saccession will cause a forest to develop."" As seen above, Appendix A Criterion 12 dictates that no " ongoing active maintenance" must be necessary in order to preserve isolation of the mill tallings?$ Appendix A, however, does not define " active maintenance." The Licensing Ikurd thus looked ciscwhere and adopted the definition of " active maintenance" in 10 C.F.R. Part 61, the NRC regulations governing the " Licensing Requirements for Land Disposal "See I%ps d die sute or Utwas'[s1 Addiuunal Contenums et 2-3, sitsched to M<num far Inve to Ammd Cmts iuons (May 1s,1989), ikpe's Reply to the NRC swa's and Kerr M4ce's Repuum to o e Pe<pe's Mem fur Imys to Amend Contenuana (Jane 16,1989),lahshit 11 at 47,ISP 89-16,29 NRC st 515. 517, Ny 12 order et 4.
DSee, a g., oipuium to state Mown fw Sennmary Dtsemum and Kerr M4ce Crma Mem rir thamissal ce sununary thspeium (Aug 22, 1989)thermnafur Karr-M4oe Cross Meml et 37, NRC stafr Response in o ysnum to Rhnms'isl Motum for summary Dispw.um (Aug 22,1989) theremaher staff svnuntry thspettum n
Respmeel at 1617.
"Mmm to Vseate at 3. See IJsP-89 35,30 NRC et (A6 88.
UMotum to Yuate at 34 "IEP 84 35,30 NRC at 683-84 DCruarum 1, as wcR suwe that "tt}he general gost or baisd obnuve la sating and design deusums is pamanoru isatsunn of uthngs and assoc ste41 cantanunants by muunurang daturbame and dispetman by natural rurras, and to do so without ongotng mamtenance " See in/rs gy 132-40, 106
l 1
of Radioactive _ Waste.'"* "lhat definition excludes " custodial actisities such as repair of fencing, re;uir or replacement of monitormg equipment, resegetation.
minor additions to soil cover, minor reguir of disposal unit covers, and general disposal site upkeep such as mowing grass."" Accordingly, the Licensing lloard concluded that "the maintenance conternplated by KerFMcGee to preserve the prairic vegetation is clearly not ' active maintenance' as that term is defined in section 61.2."7'
'Ihird, contrary to the State's position," Kert McOcc and the staff contended that it was not necessary to consider how a "Prtibable Maximum Precipitation" (PMP) event would affect the erosion of the disposal cell. A PMP event is the " theoretically greatest depth of precipitation for a given duration that is physically possible over a particular drainage area at a certain time of year.""
The Licensing Board concluded that the analyses performed by Kerr McOcc and the staff, which were based on assumplicas of storm magnitude somewhat less than a PMP event, were acceptable under Appendix A and demonstrated Out "the topsoil of the cell will not be lost by croskin over its design life.""
1he 11oard also found Out lithe bare allegalkm that a larger storm event s}wid have twen unisidncJ is insufficient to callinto questkwi the analyses performed by Ker McGee and Staff.... Moreover, die definitum d *acuve maintenante" contained in section 61.2 contemplates that certain entrue repairs to the cell mver are perinissible.1he damage that Dr.1hiers (the State's witness) alleges will take place orpese.,o be d the nort that could te corrected by mintw trgeirs "
'The State and, in most instances, the City challenge the Licensing Board's rulings in regard to Orse matters in their briefs on appeal. They also note Out EPA, in its amicus brief, expressed reservations about the same concerns - 1.c.,
reliance on the vegetative cover as the prinnry crusion barrier, the defmition of " active maintenance," and use of a storm less than a PMP event." Most significant, however, the State arxl the City contend that, during the pendency of their appeals, the NRC staff"has abandoned its position befon: the [ Licensing ikntd) and has adopted virtually every concern related to crosion articulated by tilinois, West Chicago and EPA."" They contend further that, as a consequence "1.llP-89 35. 30 NRC at f,82 33. 8mt see its pp.140w44 sorwendna the licensing licard's nLance on dus daruthm.
" 10 C.F.R. I 61.2.
7s tBP 89 31. 30 NRC at 6R7.
"See M at 683.
soAmenan Ma=wulngwal socmy. Ginney of Heinorokgy 446 (1959).
UlJIP-394s. 30 NRC at 688.
U14 at 6R9 recoanderaswa den,,J.1.kmams Board Mamnerutum and order or l'ch 13.1990 (unpabluhed) thermnaher I sh.13 ordnr).
83Me m Vacais at 4 s. Su ifA Dner at 712.
" M<uhm to Vacato et 54 See a si 11 12.
107 l
l
i of the stalf's change in position on these various issues, Kert-hicGo tus made design rnodifications in the clay-coltle intrusion harrier, diversion ditch, ar.d sedirnentation basin, and dut the staff has acknowledged that these new specifications must be incorporated into a new license amendrnent?
%e State arnt the City thereforc argue that these changes have rendered moot the licerne amendtnent approved by liv Licerning floard and already isstrd to Kerr McGee, and that it would be " ire groprute" for us "to review the original and withdrrrwn design" and the Lit ensing Board decision thereon." They contend that the licerise amendment must bc tacated and the design changes referred to the Director of NMSS for the usual pre hearing review given by the staff to applications uruler 10 C.F.R. 6 2.101(a)." In this connection, the State and the City note that urxler section 189 of the Atomic Energy Act** they are entitled to a hearing on any such license amendment, and ticy invoke that right here? In the alternative, they move for a reopening of the record and remand to the Licensing Board for consideration of the new infornution generated sitwe the issuarte of that iloani's initial decision?
Kerr-McGec opposes the joint motion. It contends at the outset that both the EPA unsicut brief and the NRC staff's response to EPA's concerns (presumably as set forth in the staff's August 10 brief on appeal) should t< " disregarded.""
Ken-McGec denies that it has made any significant changes in the cell design and directs most of its reply to a discussion of the PMP issue. Relying on the " Erosion Evaluation" it submitted to the staff last summer in response to the latter's request for further information during the pendency of this appeal,"
Kerr McGee asserts that it has " demonstrated" the adequacy of the cell design to withstand a PMP cvent and crosion." Again fo using solely on the PMP issue, Kerr-McGee also argues that none of the Commission's criteria for reopening a record has beca satisfied by the State and the City in their motion?
"lJ at 910,12.
8'l4 at 12 (myksia in ongmaD.14
"/d at 14. As the statt nenos, the actual vsber that the state and the Cuy mean to seek thrtogh their motum is a votatum d Ow tscrisms Bierd dutsum asthmimg the twenas amendmet NRC staft Rupme to staic d hhnas and Cuy d Wem Oucago Mman to Vuate or to Recpn the katord (seg l,1990) [hcremafte. staff Respmas to M. man to Vscowl at 3 a 2.
"42 LLs C. I 2239.
"Moum to Vacata et is n 9,19 n 13.
"l4 at 1418 & roll. 'the state and the Cuy also crue that 1.PA empressed concerns about rad.au.m d<me and gnwandwater pnDutum and that even the stift comwica that this latter issue has net yet bem staalved.14 at 5, in 11,15 16. See afs pp.148 49.
"Kerr-Mmee Opputuun to Mem to Vacsie (seg lit 19%) [heremafter Ken M4ee %=aion) at 1.
"$er *Tserm i vahtaum: West Owago Disposal Celr' (July 23.1990) [ hereinafter Ensim I vah.auoni, erukwed wuh Daard Naificau<m 9005,
" Ken Mcoce oppuium at 14.th 19. Indeed, Ken-Mece unaSaibedy claims that it has made an "aw,NneJ sst== Aaneated sNiweg that ht.:) design can wahstand a PMP" esent.14 at 28 (emr6asts in ongmal)
ll si 21P 108
'Ihc NRC staff's reply to de State's and the City's motion is confusing at best.
It notes that "Kerr McOcc has not withdrawn its design for the cell,,,, but has merely specified certain design details in response to (the staff's] request ""
'the staff fails to mention, however, that it requires a licena amendment for these newly provided " design details "" As for the alternative motion to reopen, the rtaff does not object to reopening the record for consideration of die "new evidence" contained in the Erosion Evaluation and the stalf's " Technical Evahntion Report" on that Kerr McGee submission," but urges us to receive and consider the parties' briefs in reply to the staff before making a reopening determination."
A.
We turn first to the movants' argument that die staff's changes in position and the corresponding design specifications added by Kerr McGee warrant vacation of the Licensing Board's decision authorizing the issuance of the license amendment to Kerr McOcc, Agency case law makes clear that, when circumstances change while an ad-Jtidicatory decision is perdhg on appeal so as to supersede <w to alter in a significant way the evidentiary basis of that decision, the decision should be va-cated. Ibr example, ir, newns Ferry, after we completed our appellate review of the Licensing Board a decision at,d while our decision was pending review by the Commission, we learned that the Tennessee Valley Audiority (TVA) had substantially amended the waste disposal proposal at issue in that case through various submissions it had made to the staff." Sev'cifically, it transforiaed its proposal to reduce, incinerate, and store low levs I radioactive waste during the life of the plant to a five-year onsite storage plan,8" We tejected TVA's argumel.t that this was not "a material alteration of its earlier presentation,"2" lxxing that or prior decision in ALAiM641" turned on the very matters now addressed in TVA's latest submissions to the staff--i.e.,"TVA's failure to explain on the record hov five year storage was to be seperated from the original integrated proposal including long-term storage and incinertum,"1" We tias found that the new information "was material to the resolution of the issues befett us," and that, "'vith approprite opportunity for comment or rebuttal, li>] might well have changed the out wac of the appeal."i" Further, we "sta!! Response to Mutmn to Vacaia at 3.
"See NRC staft Brt;r at 38 "Ttus ann report is attached to the NRC staft Brier.
98stafr it..ynae to Motion to Vacais at 7-s. The stem the City, aral KerrMfies each rtled sah reply bners an october 3,1990.
"Teassues Valtsy Amtbrity (Brmms Ferry Nucicar Plant, Uniis 1,2 and 3). AtAB-677,15 NFC 13s1(1982).
1"ld at 1389.
I".4 at 1391.
H15 NRC 109821 30" A1All 677,15 NRC at 1392.
I"!d at 1393.
109 r
.m 3
- +
b dismissed as " disingenuous" *1YA's assertions that its submission to the staff "did not constitute an amendment [of its application),"2" In this regard, we noted that TVA's submissk>ns were in response to the staff's requests for additional information, and that the staff had advised 'lYA to amend its application?
At the time we learned of this significant change in circumstances, the IJrowns Terry proceeding was pending before the Commission for review, indeed, the Commission had already taken review and requested briefing of the issues After being apprised of the changed circumstanc<'s, the Commission then detertnined that, "[s)ince ALAIMM [the Appeal lloard decision on appealj was based on a record that m longer represents the situation in this case and will not be reviewed by the l'ommission, that decision is hereby meated and shall be given no weight as a precedent."# It also remanded the proceeding to us for further action?
Vacating a decision in such circumstances is also fully consistent with federal court practice, For instance, Rule 60(b) of the Federal Rules of Civil Procedure provides that new evidence diligcntly discovered after trial and decision or "any other reason justifying relief" can deprive a judgment of its operative effect. As the Supreme Court has noted, the "other reason" language in Rule 60(b) sirr >ly
" vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,"*
There um be no doubt that the staff's changes in position on the vegetative cover as the primary crosion psotection, the defmition of active maintenance, ano the use of the PMP event in erosion analyscs - not just on a generic basis, wt in this case - constitute "a material aheration of its earlier presentation""'
to the Licensing Board, As the applicant and proponent of its cell design, Kerr-McGee, of course, has the burden of proof,I" and the principal focus of the hearing is accordingly on its presentatic,ii, not the staff's."2 But, as discussed
- 1bd
- 14 at 1393 n.5. See iJ. at 1389.
- ennessee Vaney AulAority (Browns Feny Nuclear 13 ant, Unita 1,2 and 3), C1.182 26,16 Mtc 880, tal T
(1982)(emphases added),
los/Nd See AIAH-711,17 NRC 30 (1983),
- similarly,in Defaarve Power J Ut s Ca. (Sununit Ibwer stauon,Umta i and 2), At AB.516,9 NRC 5 (1979).
A whue the Ikensing Bosni's desmon appnwing the issuance or a hmned wurii authoritation was peruhng berare us on egyeal, Se apphcant indicated it mienAd k, aher us plans suhitanually, On the agyticant's suaacsum and ws:hout objecum frnm any oect pany, we vacated the Ikenaang Board's decisim wuhout prejudwo Althnugh
_t the raets of Sumaus suggest a t asia ra duungmahing that decia:.m rnwn the tnstant case, the fundammtal principle portains: whm cutumstances change so as to aher efractively the evidenuary rrxoni supparung a dcasion on agical, that deciaim annuld be varsied.
I KLeproar v. United J#as.s.335 U S 601,614-is (1949).
UO8rswar Ferry. AIAB 677,15 NRC at 1391 "I3ee Cenn. mars rawer Co. (%dtsnd Plant, Unita i and 2), AIAH.123,6 Alic 331, Hs (1973)
H23ee P,a @c Cap and Dactric Ca. (Diablo Canyon Nuclear Power Plant, Umts I and 2), AIAB-728,17 NRC 777, 507, reWew deckend, CI.I 53 32, l' NRC 13@ (1983). As DwW Cearn ninca, however, the adaguacy IContuused) a i10
. ~
below, the staff's former positionon cach of the three identified issues amounted to a significant part of the evidentiary record and was accorded substantial weight by the Licensing Board.
. As a consequence of Kerr McGec's reliance on the top vegetative cover to provide the primary protection against crosion and the staff's then-support of that position, the Licensing Board rejected the State's efforts to pursue in greater detail the adequacy of the underlying clay-cobble intrusion barrier, ne Board noted that Appendix A does not require such an " intrusion barrier," and that it was included in Kerr McGec's design "to provide added assurance of cell stability in the event that the topsoil layer is lost for some unspecified reason dunng the design life of the cell.""3 It then specifically referred to a staff analysis showing that erosion of the surface layer might take place m a time scale wcll in cacess of the design life of the cell (j,,, that it poses no credMe mechardsr: by which the topsoil might be lost within 1000 yearst,1,, [andi that if the soil layer is lost by some unspecified medianism the intrusion barrier would offer long-term protection."'
De Board thus concluded that "there is only a very remote possibility that the barrier will be required to perform an crosion control function within the design life of the cell.""3 The State criticized the absence of certain information concerning the size, composition, and distribution of rocks in the clay-cobble intrusiori barrier. Acknowledging that the " final choice of materials has not been specified" and that "no computations that rely on graded particle sizes in the intrusion layer have been performed," the Board responded that the " allegation does not rebut Kerr-McGee's and Staff's evidence or establish the materiality of the missing data.""'
The staff now " places no reliance on the vegetative cover.""' Instead, for the purpose of satisfying the criteria of Appendix A, the staff regards the underlying clay-cobble layer in the Kerr McGee cell design "as the principal crosion barrier""' His position is assertedly based on the recently compicted " Final Staff Technical Position: Dasign of Erosica Protection Covers for Stabilization of Un nium Mill Tailings Sites" (May 1990 Draft) [ hereinafter STP), which or the stafr's envirmmental review can be chat:snged in a ten.- is. In the instant cue, it would be entrernely difficult to charaderire the issues as misly relating to si:Aer radiological health and safety manens under the AliA i3 and UhrrRCA, or the adapacy or the starr's envinmnumta' review urWor bTIA. ses generally timarun Ecology Action, lac, v. NRC,869 F.2d 719,729-30 (34 Cir.1989b "3tEP-89-35,30 NRC at 687 (emphasis added).
"'lbid "3 164d (enyhssis added).
11614 at 688 A n.17.
"7
[
NRC stafr Brier at s3. 3de Affidavit or T.L Johnson thereinaher Johnann Af5 davit], ausened to NRC staft nder at 5.
"'NRC stafr ricier at 36 See Johnann Arfidsvit at 5.
I11 l
- - - -. ~. - - - - - - - - - _ _ ~. - _.
reflects a preference for rock, rather than vegetative, covers,"' The staff also
' indicates that, bat.ed on its evaluation of the additional design details provided by Kerr McOcc tast summer (i.e., specifications for the rock component of the clay.
cobble layerno ), the clay-cobble barrier will satisfy regulatory requirements.*
The staff ackis, however, that these specifications for the protective rock must be incorporated into a new license amendment for the cell.
It is now apparent that the previously-lacking details and computations
- concelning the clay-cobble intrusion barrier - which the Licensing Board found to be immaterial in light of the role of the vegetative cover as the primary crosion protection - have become so material to the staff's analysis diat they must be incorporated into a new license amendment. Nor can it still be said that "there is only a very remote possibility that the [ clay cobbic] barrier will be required to perform au crosion control function within the design life of the cell";m the staff's new analysis assumes that is exactly the function that the clay-cobble layer will perform, it is of no moment here that the staff has tcviewul these new design details and pronounced them sufficient to satisfy the pertilmnt regulatory criteria. The other parties, namely the State and the City, have not had an opportunity to undertake such a review and to challenge the new analyses within the hearing process, as is their right. Moreover, the new information relating to the clay-cobble layer is now of concededly greater significance than was ascribed to it during the hearing and at the time the Licensing floard rendered its decision on summary disposition. h. fact, as a result of the staff's change in position, the principal focus of crosion control-and thus compliance with Appendix A -is now on the clay cobble layer of the cell, not the top vegetative cover, So, too, the principal focus of the hearing has necessarily changed, inextricably related to the staff's change in position on the primary protec.
tion against crosion is its about face on what constitutes " ongoing active main-tenance" prohibited by Criteria 1 and 12. As noted earlict, at Kerr-McGee's urging and without objection from the staff,5 he Licensing Board borrowed the t
definition of " active maintenance" from other NRC regulations not specifically concerned with mill tailings disposal. The definition of " active maintenance" M 'IT at 7 8.11 1% 13-14,17. N s t? was trenanuned to the paines and us with a Memorandum ritan 11 3
swsft to Cl llaughney Oune lh 1990)
See, e g., Erosum Evaluation at 15 22,33-37; Board Nouncatim 940f>, Enclosum 2 Gauer rnwn Ken Mcoce W
ta CJ, llaughney Quly 31,1990), pnwidmg addtuonal informatmn and calculationsi
- NRC Starr Bnct et % 5,e sTP st 9-10,18-19, concernmg scrutiny d rM6 durabilay, quahty, and placement.
122NkC Stafr Dner at 36,38, Arfidavit or ILM. Bernem (hereinafter Bernem Arndaviil, enached to NRC staff Bner, at 4. Amdava or JJ, swift (heremaner smn Arridavu), suached to NRC stafr Bnef, si 9.
millP-84 35,30 NRC et 687,
- tadeal, at the tiene the state submuted its contentems, it did so en the basia that Kerr M4cs and the starr
(.
t=wh viewaf the vegetauve ciwer as the primary emnon protation. ha, it is not surpnsms that the starc's l'
cteurnums did am recus an *cngincarma details or the spectScity {nnw] involved in Kerr Mmee's Dwwg Lafawwa" NRC stafr Bnef si 38 n 17.
W See sat at 35.
V' l'
gg 1
. ~. - - _,
.~.
- ~. ~. - - -
contained in 10 C.F.R. 6 61.2 and adopted by the Board excludes the mowing and related activities on which the Kerr.hicGee proposal relies in order to maintain the prairie grasses in the top vegetative cover?* 1te Licensing Board relied on this definition in rejecting, on surnmary disposition, the State's complaints that the vegetative cover was flawed and did not provide the " reasonably equivalent isolation of the tailings from natural crosional forces" required by Appenwx A Criterion 3"' for above grade disposal?8 'Ihe Board also concluded that, under its " active maintenance" definiuon, minor repairs to the cell necessitated by a PhiP event could be performed.i2, The staff, however, has changed the position it presented to the Licensing Board on " active maintenance,""* De STP acknowledges that "the goal of any design for long-term stabili: ration to meet applicable design criteria should be to provide overall site stability for very long time periods, with no chance placed on active maintenance.""i To that end, the staff now defmes the " active maintenance" prohibited by Appendix A Criteria 1 and 12 as "any maintenance that is needed to assure that the design will meet specified longevity requtrements, Such maintenance includes even minor maintenance, such as the addition of soil to small rills and gullies,"u2 As a result of applying this new defmition to the case at bar,"5 Kerr-hicGee's maintenance plan for the prairic grasses in the vegetative cover may not be taken into account in determining if the cell provides adequate crosion protection - explaining why the staff now regards the underlying clay-cobble layer as serving that purpose,*
As for consideration of a Ph1P event in determining whether the cell design can withstand erosion and meet the longevity requirements of Appendix A Criterion 6, the Licensing Board rebuffed the State's efforts, su} ported on summary disposition with an expert affidavit, to join this issue,'" la doing so, the Board noted that " Appendix A does not specify particular criteria for assessing longevity based on a design flood or storm.""* Tims, the Ikurd sclied on analyses of the staff and Kerr-hicGee that used assumptions of storms of lesser magnitude than a PhiP event and based calculations on variations of u6t3P 89-35,30 NRC at Q2 83.
"7 10 CIA Part 40, Arp. A Cnterim 3.
128See IEP-8435,30 NRC at 68687, 12914 at 689. %e Board cited its "acuve maintenance" def.nition in summanly dupniing of yet another issue, human inuusinet IJ. at 690. Tw additional discusaton or ilus contention, see ia(ns pp.14748-
- NRC starr Bnef at 35.
m STP at 3.
~
02 16i,r (emphasis in onginall "IAny dmht that the stafr has applied its genenc sTP to Kerr McGee's pnyasal is dispe&d by a letter from 1 snft to Kerr-McGee (June 25,1990) [kseinafter SmA letter), attached to Board Nourwaum 904L.
- Johnne Af&lssit at s, I"see i#s pp.14547, cmcernmg % ether the tjcensmg Board erred, in any event, in granung summary dwpositire or this issue.
t=[3p.gg-3s,30 NRC at 6A8.
I13
the Universal Soil Loss Equation, which the Board found did not use a PMP cvent as a parameter.U21hc staff's SHiS, for example, used "a rainfall factor derived from 25 years of record exivessed in annualized terms."2" The staff also accepted die use of less than a PMP event because "the disposal cell could le repaired il a worse event damaged it," and, as noted above, the Licensing Bturd agreed D' Once again the staff confesses that its current position on the PMP cvent differs from that presented to the Licensing Board. The STP provides that
"[t]he design flood or precipitation event on which to base the stabilization plan should be one for which there is reasonable assurance of non-excecdance during the 1000 year design life," Thus, the STP concludes that the so-called "10(6 year flood" - an event with a probability of 0.(01 per year and a 63 percent chance of being equalled or exceeded during the 10(Gycar design life - would not meet the reasonable assurance test. But the STP does fmd the PMP cvent to be of "sufficiently low likelihood that die NRC staff concludes 01at Oiere is reasonable assurance that largu events will not occur during the 10(0-year design life. Therefore, the staff accepts the use of these events as design events for a stabilization plan."
- Other events may be used, but only with detailed justification. In this case, however, the staff's affidavit makes clear that, as EPA has urged, "the disposal cell should be designed to withstand an occurrence of the PMP event because no other precipitation event provides reasonable assurance that a more severe event will not occur within 1000 years.""1 Like the staff's revisionist view or what constitutes " active maintenance" its new-found reliance on the PMP cvent inexorably led to the staff's retreat from the vegetative cover to the underlying clay-cobble layer as the primary erosion battier."2 But after requesting and n:cciving additional specifications and analyses from Kerr-McGee on the clay-cobble layer, the staff determined that this layer can withstand a PMP cvent "2 And, as noted above, the staff believes that the proposal now satisfies the requirements of Appendix A, provided Kerr-McGec's license is amended to incorporate the rock specifications and other design details. The staff nonetheless recognizes, however, that the other parties must be affe*3cd an opportunity to address the new design details and analyses."4 Ulld at 688-89.
U8(4 at 688.
D'NRC suff Bacf at 35, LEP-89-35.30 NRC at 649; Feb.13 onfer at 14
'"sTP at 5.
HiJohnam ArMavit at & see NPC suff Bnef at 3435.
42NRC suit Bad at 3s; AAnsm AfMava at 3.
"3NRC sufr Drief at 36, hanse ArMava at A
"'Saasyrepp.98,109.
114 l
l
~fhe preceding discussion reveals that, as in the Browil5 Ferry proceeding, there has been "a material alteration" in an earlier presentation to the Licensing Board (i.e., the staff's),"5 and the decisions pending before us on appeal are
" based on a record that no longer represents the situation in this case," warranting vacation of those decisions."' The Licensing Board gave substantial weight to the staff's views and analyses concerning the Kerr McGee proposal, and the staff has now significantly altered those views in several critical areas. As the Director of NMSS delicately puts it, "the position on design for crusion protection that the NRC staff presented to the... Licensing Doard... in this proceeding had apparendy lagged behind other developments taking place within the NRC""' In a further example of the staff's gift of understatement, it notes that its (belated) review of the Kert-McGee proposal "has resulted in engineering specifications that may vary from the engineering implications of conclusions reached by the Licensing Board," and that "[t]he basis for these conclusions is, in some respects, different from that reflected in the hearing record.""' In fact, the changes are so significant that the license already issued by the staff to Kerr McGee must now be further amersled."'
Moreover, the staff's reevaluation of Kert McGee's proposal since the is-suance of the Licensing Board's decision was not simply a matter of con-firmatory, post-hearing review or an effort to "tle up loose ends." 'The staff's first written request to Kerr McGee for additional information refutes any such notion:
At the present time islmost fair months after the license was issued], it is not clear that the designs of the top and side slopes, the diversion channels, or the sedimentation tusm are adequate to resist cronien to the extent that the requirement.s of10 CFR 40 Appendix A are met.
De staff expects that, aqwn further evaluation aad analysis, Kerr.McOcc may decide to stJesign several features.3" "8AtAB 677,15 NRC at 1391.
WCIll2-26,16 NRC at 881.
"I Bernero Affl davit at 12, we wmost how se staff pteidm could " lag behirut," inasmuch as a draft versim of the STP was amarmtly in prnperstam by N%lss at abat the same time na the sEs m Kert McGee's prmonal falso prepared under the auspicca of NMsS), and was made available far puhhc cmtment abou three weeks before the staff rded its respmae to the state's maim far assumary disposinon of the involved smienuuns and threc
.nmtha befcss the ticenams Board laaued sta summary dispositim decistm. See 54 I-ed. Reg. 33,101 (1989).
At a mmtmum, the staff was scrimsly versuas in the fulrdiment of the long estabbahed teligatim imp.4ed on a3 parnes in NRC adpdicatory poceedings to call to the attention or both the licmams Bosni and other partica "new informaticut which is relevant and matenal to the matters bems adpdicated." DuAs Pawer Co. (Wilham D.
McGuire Nuclear stadori, Umts I and 2), Al.AB 143,6 Alic 6E 625 (1973). Ilad the stafr dme so, it is quite hkely that this penceedmg would now be in a dirrerent posture entirely.
See @s nas 189, enncernmg the state's errort u brms the draft STP to the e,tenuon of the tjeenams Haard.
Hs NRC stafr Bnef at 38 (emi ania added),
t
"'Ihr As Kerr McGee praes, NRC staff thmlegy has Img mamtamed that only "sigmricant" design changes Kerr McGo o P'*inen at 20 n.24 (citmg paw Car a Electne Co. (Dtablo require e license amendment r
Canym Nuclear Ibwer Plant, thuis 1 and 2), DIls2-10,16 NRC 1205,1207 rL4 0982)),
L" swift letter. Enclisure 3 at I (emphaus added),
115
Referring to the clay cobble layer, the staff stated that it " considers such analyses to be incomplete and unacceptable "858 The staff ultimately may have reached essentially the same outcome as before - i.e., the requirements of Appendix A are now met, subject to a new license amendment - but that conclusion is based on new information not presented to the Licensing Board, reviewed on the basis of significantly different staff standards, and uatested in an adjudicatory context.
Kerr-McOcc argues that the STP, on which the staff's new position is based, "is of no binding res,ulatory significance.-uz To be sure, staff technical positions and the like do not have the force of regulations; rather, they provide guidance to applicants as to acceptable methods for implementing regulatory criteria.t"" Simply stated, [such] staff guiaance generally sets neither minimum nor maximum standards,an* The issue here, however, is not whether the staff's new STP on erosion protection for mill tailings covers is ultimately controlling vis-a-vis the pertinent regulatory requirements. The significance of the STP is that it represents a material change in the position and evidentiary presentation by the staff in the hearing below - a position to which the Licensing Board gave substantial deference in its decision. Whether the new staff position is
" correct" or not remains to be seen. What is clear now is that the existing
. evidentiary basis for the Licensing Board's decision on crosion issues has itself been eroded to a major extenL Kerr-McGee also complaint that "[t]he crosion issue has come to the fore chiefly as a result of a brief filed with this Board by the EPA," a brief that allegedly " raises new issues."2" It 6 us urges us to disregard all such matters."6 But the current posture of this proceeding cannot be attributed to the filing of EPA's amicus brief on appeal. As has been shown, the State attempted to pursue its various contentions asserting non compliance with the Appendix A criteria on crosion protection, but it failed on summary dispesition of issues concerning the vegetative cover, active maintenance, and the PMP event - all issues on which the staff has now changed its views, Moreover, the differing views of EPA in nine areas were made known to all the parties and the Licensing Board well before summary disposition motions were filed.'" In August 1989, the Licensing Board requested the parties' advice "Iibia U2 Kerr M4ee otrosidort at 26.
333 Vermons Yankee Nanclear Power Corp. (Vermora Yarice Nuclear Ibwer Stataank CLI.7440,8 AEC 809,814 (1974); Neoa for Emergency and Remedal Acnon. CtJ.78-6,7 NRC 4X( 406-07 (19781 u4 c,,,,,,,, p,,,, Co. (Big Rod Pomi Nuclear Plant), ALAB-72s,17 NRC 562,568 n.10 090).
us Kerr-McGee ogyuddm at i1.
'5'la at 1.
3"See Board Notitu:adon 894 (noting that " EPA aufr,,. wanted their comments brmght effectively to the attention er the decision-makers, La., to the Atomic Safety and IJcensing Board"); EPA Comments on stTA at (Cornas,ed) 116
as to whether those EPA views related to any of the admitted contentions, but the Board did not issue its judgment thereon until the following February, when it rendered the initial decision completing its consideration of the case, ne ikxird then concluded, with no explanation, that " EPA's concerns.. have no direct impact on the admitted contentions" and "need not be considered in this proceeding."* In this connection, the Board stated that " Illinois fcund a nexus between most of the EPA concerns and its own admitted contentions while the Staff and Applicant find the relationship remote."* nc Board's characterization of the parties' comments, however, does no' * ;uac with the record, ne staff responded, also with the benefit of no exphna' ion whatsoever, that "the EPA's concerns do not impact the admitted contentions."'" Kerr.
McGee acknowledged, however, that EPA's comments on the SFES related to several of the State's admitted contentions, including those concerned with long-term maintenance and siting.$'t Kerr.McGee stated that these concerns slould nevertheless have no effect on this proceeding because, "[tlo tic extent that the EPA concerns are encompassed by the admitted contenticas, those concerns will be addressed"i" As we have seen, however, that prediction did not come true.
Rus, while many of the issues addressed in EPA's amicus brief coincide with the staff's changes in position and the bases for the State's and the City's motion to vacate, it is clear that these are not "new" issues, appearing for the first time on appeal. In any event, the fact that the staff may have changed its position due to a belated sensitivity to EPA's concerns is irrelevant; the dispositive fact is the staff's change in position, irrespective of the motivation for it.
We therefore agree with the State and the City that those portions of the Licensing Board's decision that concern the vegetative cover as the primary erosion barrier, " active maintenance" and erosion analyses that are not based on a PMP event must be w2cated.38 Specifically, this includes the Board's disposition of Contentions 4(c),4(d),4(e), and 4(g), as well as Contentions 2(k),
2(p),2(s),2(u), and 2(h), which the Board found were essentially duplicative.t**
We address in a later portion of this opinion the effect of this ruling on the future course of this proceeding and on the outstanding license issued to Kerr-McGee.5 9 (concerning active mairannance, ensian, the 1000 year standard, canphance mth NRC eqgulatwy enteria, etc.).
- LBP-90 9,31 NRC at 154.
- ld at is3.
I'0NRC staft's Respmse to Manorandum and order er August 24,1989 (sept 1,1989) at 3.
I'I Kerr McGee's Response so the lloard's Questaciis (sept 8,1989) si 34 to14. at 5 (empiasts addad),
- "aromw Fmy, CIL82-26,16 NRC at I81.
'"t.BP-89-35,30 NRC at 68090,70142, tJ1P-90 9,31 NRC at 190.
I"sul#spp.149-Sa i17-i
~. -. - -, - - -
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B,
%c State and the City have a'.to 1:wed, in tim phernative, to reopen the record for further consideration by the Licensing board of the row (. velopments discussed above, We conclude that, even it the Brow ns Ferry decisiom did not compel vacation of the Licensing Board's dec4 ton oil the iqvohed issues, reopening would clearly be warntnted.
Under the Commission's Rules of Practice, a cloeed record will rict bo reopened unless the movant satisfies the following thren critert. :
(1) *Ihe motion must be timely, except that an encegncmally greve issue may be considered in the discretim of the presiding officer evm if untimely presented.
(2) 'the mutim must address a significar.: safety or enviranrnental issue.
(3) *Ihe motion rnust demonstrate that a materially different resuh wouM be or would 28' have been likely had the newly proffered evidence been considertd initially In addition,"[t]he motion must be accompanied by one or more affidavits which set forth the factual and/or technical bases for the movant's claim that tic (threc]
criteria... have been satisfied."i" He State's and the City's motion easily meets all of these requirements.
1.
De motion was clearly timely, it was filed within just three wecks of the staff's brief, in v.hich the staff confirmed for the first time through affidavits that it had, in fact, changed its position on the critical issues discussed above, Kerr-McGee complains, however, that, insofar as the PMP cvent is concerned, the motion is untimely,2*' in its view, the State only belatedly attempted to establish that a PMP event should be evaluated, and "the Licensing Board denied consideration of the matter in part on the basis that the issue should have been advanced earlier"1" Dus, Kerr McGee reasons that "[ilf the PMP issue was untimely when advanced before the Licensing Board, it obviously cannot be timely now.""" '
He problem with Kerr-McGec's argument is that the Licensing Board never rejected the PMP issue as untimely. When the Board first considered this matter on summary disposition, there is no discussion whatsoever about the timeliness of the issue "2 Rather, the Board ruled against the State on the PMP issue for essentially three reasons: (1)it believed Appendix A does not require consideration of such an event; (ii) it found the State's argument and supporting 166 10 Cf.R. 5 2.734(a).
'# 1412.734(h).
16aKert-ME,ne ogostuon at 24 2s. Nme or Kerr-MSm's aratsnents with respect to the amm to reopm a& tresses the active maintenance and vegetative cover issues. Tw its part. the NRC stafr does not chanenge the umchness or the motim to ranpen or chject to reopening tw consideratim or certaut inrarmation pnwided by KereM4ee and the stafr. staft Respmaa to Moum to Veears at 7.
1"KareM4ee opoenion at 24-25 (ciung Ieb.13 order at 4)
"Old at 21 171 see 11tP-89-35,30 NRC at 683,688-89.
I18
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affidavit insufficient to withstand summary disposition, in hght of the staff's and KernMcGec's analyses based on lesser magnitude rainfall events; and (iii) i the defmilion of " active maintenance" adopted by the Board permits minor repairs to the cell cover that might te necessary as a result of a Ph1P cvent.'"
The State sought reconsideration and supplemented its earlier affidavit with additiona! references.I" The lloard, however, reaffirmed its prior ruling, noimg that the additional documentation submitted by the State on reconsideration was available earlier and "should have been cited in connectica with Illinois'[s]
opposition to Kctr-McGec's cross motion.""4 Thus, the Board did not find the PMP issue untimely, only some additiofwl references supplied as support for the State's motion for reconsideration.
2.
The significance of the matters raised in the State's and the City's motion l
is patent.I" They go to the heart of the Commission's controlling regulatory requirements - i.e., the ability of the cell design to resist crosion, without ongoing active maintenance, and thereby to pfovide reasonable assurance that the takueiive wste thc 9under win be ischted to the catent reasonably achievable for 1(AY! years, at requited by Appendix A Criteria 1, 3, 4, 6, and 12. The staff itself acknowledged this last summer when it began its post-hearing, post liccne-issuance (re) consideration of the KemMcGee design and solicited further information and techaical annlyscs: "At the present time, it is not clear that the designs of the top and side slopes, the diversion channels, or the sedimentation basin are adequate to resist crosion to the extent that the requirements of 10 CFR 40 Appendix A are met."I'5 Consideration of the PMP event in crosion analyses, for example, is essential in order to assure compliance with the NRC's requirements established for mill tailings disposal. Although, as the Licensing Board found, Appendix A does not explicitly state that disposal systems must be designed to withstand a PMP event,"1 this necessarily follows from the 1(XX) year longevity requirement imposed by Appendix A Criterion 6. As EPA explains.
- reasonable assurance" of control of radiological haiards means use of the Pruhabk Maxi-rnum Precipitation (PMP) event in disposal cell design, since no other reference precipt.ition event (100 par,2no par storm, etc.) carries reasonable assurance (a g,,95% prchabihty)
IU M at 688 89. As will be seen. W*e pp. 119-20,10-46,14644, the 1.icensing Ibard erred on su three counta.
I"one or those refonnecs was the August 1989 versim or the STP. S<< Vre note 189.
I"Feb.13 order at 4.
I"In this regard. Kerr Mcoes argues that the staft's request for funhes mformauan and ruevakatwn of Kerr.
Meoce's ceu sksign "merely mufarces Ow vah4ty of the txensmg Board's dcasmn." that the sTP has "no bindmg entulaiery sigmricance.* and that, in any event, Kerr Meoce has now made an "unrebutted and unchallengs d showms" of the ability of its deaes to withstand a PMP event. Kerr%Ge o wei im at 25. 26 n
t l
- 28. We have already Aspeed or the first two arguments syre pp.115-16, and we addras the th rd Wra pp i
121 22 l
"* seift 14 tier. Imekuure 3 at 1.
IU.BP 89 35,30 NRC at 688.
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that a rnore severt evert will run occur with.n 1,n00 yeart. llence, to be adequatdy pro-tective of human heakh and the emituntnut, a daposal tell design should be rnodelled to withstand the PMP event."'
'Ihc staff now agrecs with and fully adopts this position in its STP and appellate brief.8"
- 3. The materiality of the staff's changes in position subsequent to the rendering of the Licensing Board's decisions has already been demonstrated in connection with ee State's and the City's motion to vacateJ' Certainly the Licensing Board was influenced by the staff's former (1) acceptance and Bpproval of the vegetative cover as the primary erosion protection for pur}mses of satisfying the Appendix A Criteria, and corresponding lack of analyses concerning the clay-cobble layer, (2) definition of " active maintenance" so as to incitxic mowing, revegetation, and minor repairs; and (3) use of less than a PMP event in its crosion analysis. IIad the current staff views been made known during the course of the proceeding below, the focus of the litigation would have been on the clay cobble intrusion barrier, instead of the vegetative cover, and the composition of the evidentiary record would have been quite different."'
"' EPA Bnef at 7. $se else the statemers of Cmaideratim for EPA's fmal rules a "Fetvirmmertal standards for Uramurn and Wnum Mdl Taihngs at tjcensed Cornnerual Procesamg saan" (whid are mhhed at 40 C F.R.
Ii192.30.43), 48 Fal. Reg 45.926. 45,93637 (19g3).
EPA also entictres, correctly in our view, Kerr-Mcoce's reliance on, and the IJcenams Board's accepance of.
precipasuon estimaica lower than e PMP event because the Departmcrs of the Intenor's Bureau ef Reclamation permits the vae of audt lower magmtude events in designmg small dama. EPA paras out that the Durcio of Reclamation permits the use oflasa than a PMP event when propeny damage is the relevant consideratim.... but allows no such modification eben there is a p<senual fa loss of hfe. As the pnncip(al] purpose of the hhlt Tailmgs standard is to
- human health and the anytrmment, not w lunit propeny damage, snahficauons to the PMP ba upon critena designed to putect agamst pmporty loss do not appear to be apprtpriate to demonstrate can@ance 3,th the standard.
EPA Bnef at 7-8. -
D'sTP at 5, NRC staff Bnef at 34, Johnson Affidavis at 4.
Isog,,,,p,, ppt g ggg7, dlCs +re Coasolifated Ed. son Co. of New York (Indi.n Puin. statim, Umt No. 2), Al.AB-2M 7 AEC 971 (1974). An intervant moved to toryn a closed record tused on a staff
- working paper" that the tmervenor alleged was "'diametncally opposed' to the posiuon [the stsfr] tad in this proceedmg." 14 at Mt. ~!he staff, however, daracterued the document as simply "'s medarusm for emplorms and formulatirg a pasaHe new approach to the regulatory pmcass/
- and resisted the nem that it "presers teaumony on the conians of the working paper in dua ad,udicatory pmceedmg" 14 at 972-73 (emphasis a4 led). We derued the mouan to reopen, fm&ng that the working paper alone had no regulatory significance.14. at 973-74. In contrast to the case at bar, we also found "no confuct between the staff empen testimmy in dus proceedmg and the c sucnt of the drah working &icummt."
14 at 975 (footnras emined) We noted in dus regant, however, that, *m die was the staff empen testimony in this proceeding appeared to be impeached by suhaequent staff empat opmion(,).. chvinualy the issue of the currinaing valuhty of the staff emport tesummy should be emphsed." 14 n.16-See also Ce...
-afah Ed. son Ce. (Byrm Nuclear Power station, Units 1 and 2), AIAB-770,19 NRC 1163 (1984), While the case was pendmg on the applicant's appeal fran a Lcensing boani dectaim that daued its beense request due to quahty assurance (QA) pmblans, the applicant cmipleted its QA reinspecuen program and l
the staff concluded its evaluatim thered We gramed apphcant's request to regen the evidenuary recced for cmaideration of this new information and for funber heanng on whether there was reasonable assuranblic, and that the protection of the piblic health, safety, and welfare and the regulation of interstate commerce require that every reasonable effort be made to provide for the stabilization, disposal, and contml in a safe and environmentally sound manner of such tailings in order to prevent or minimize radon diffusion into the envirnament and to prevent or minimite other environmental hazards from such tailmgs.N
- Ahhmgh, as KctrMOce and the staff point out, me have the authomy to hear evidence and decide maners in the 6 tut uutanca, the cuacise or that authority has always been solely a matter d our diacretim, dependent the perucular circumstances of the case and avadable numrwa.
u I85u wre p.117 & yre n.1443G N UhrrRCA Pub.1. No. 95404, t 2(s),92 stat. W122.
In explauung the need for UhrrRCA, the ihmse Repret - the only repost accesnpanyuts the legislatim -
rehed upon die description of the pubhc heahh hazard of mill tailmgs in the testimony d then NRC Osatrman.
Dr. Joseph M. Iladne:
The NRC believes that leg term release inra tailings piles may pose a radiataan health hazani it the pies are nr4 efrecuvely stahihzed to mmimum radm releases and revent unauthonzed use of the tailmgs.
l Unhke high-level radioactive waste inin the back and of the nuclear fuel cycle, whidt cunuins l
poducts of the 6ssion reaction, trull taihngs contam only naturally occurring radioneuve alcmenu, in fConamaa l
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The purposes of UMTRCA are twofold: fifst, to pfovide a remedial action program at inactive mill tailings sites;1" and second, to provide a program for the regulation of " mill tailings during uranium or thorium ore processing at active mill operations and after termination of such operations "'" Thus, Title i of UMTRCA provides a specific remedial program for a number of designated inactive and aban(kmed tailings sites under the primary direction of the Departmcrit of Energy.'" Title 11, on the other hand, establishes a comprehensive program for NRC regulation at active (licensed) mill tailings sites, by amending the AEA to include uranium and thorium mill tailings in the definition of byproduct material in section i1(c)(2), and by adding sections 83, 84, and 275 and amending sections 161 and 274 of the AEA so as to provide the Commission with broad audority to manage all aspects of mill tailings sites 2""
UMTRCA also directed EPA to promulgate " standards of general application" for both programs.58 Title 11 charged the NRC, however, with implementing and enforcing the EPA standards, in addition to establishing its own specific requirements and standards for carrying out the purposes of UM1RCA and conforming its regulations to the EPA general standards,"
smaD quantities. De radwactive decay of these elementa leads to produerwn of noon, a rediracuve gas with a halfhfe of about four days, which can d;ffuse inun a taihngr pile into the nuncephere and autwcquemly eayse persons to radiation far away fram the pile. The increased caposure crepared to espmure fnun radon almady in the aunm;+cre inwn othu sounes is eaccedmgly abght, but Qua increase is in effect permanent his is baause rude productum in miQ tailings cmtmuas for umes or the rrder of a hmdred thousand yeam,ao the tadings pie becomes a purpetual sourte injectmg a smaU annunt of radm mio the atmm;Aere, unicus some actxn is taken to keep the radm Inn escapng he health effecta d Qua ra&m production are tmy as applied to any one generanon, tot the sum of three expouses can be made larga by counung far into the future, large enegh in fact to be the dominant radauon cap =ure rmm the nuclear fuel cycle. Mether n u meanmsful to attadi a;gmficana to ra&ation caposures thousanda d years in the future, tw amvittsely, whether h is jusufiable to ignors than, are questums without casy arewers. De most sausfactory appnach la to regture every seasmahle affces to dupone d taihnga in a way that minunises radan diffusat into the sunnsphere.
IlR. Rep.No. 1480,95th Cong,2d sesa., p. 2, et 25 (1978) (elbruia in ongmall 3" Pub.1. No. 954n4, 4 2(hX1). 92 Stat 3022.
I"/d i2(bX2192 stat 3021 I"It Il 101 115,92 Stat. 3022-33.
14 li 201206,92 stat. 303341.
- /4 (206,92 stat 3040.
M(d (( 203,205,92 Sut. 30% 3(U9.
As desenbed in the llouse Report, the dual EPA and NRC standard-setung red me untrmiplaicd tha i
[t]he EPA standards and entena ahmld be developed to hmtt the capmure (:t pnumiial caposure) of the publ c and to prueet the general catvinmment fun enher ridintostcal or neradiolgical sdwtances to acceptable levela thrnugh sudi means sa aDowable cancentrations in att or water, quantiues d the substances released over a penod or time, or by specifying manimam anosable doses tr levels to individuals irt the general p5mlation.
Il R, Rep. No.1480, sryra nae 1%, p.1, at 1417. He NRC, en the aber hand, must sa au standards and requiranents relating to managanet concepts, s#c technoir,gy, mgmeenna methods, and pnxxdures to be employed to achieve demred levela d contrd for limiting pubhc esposure, and for pnxectmg the smeral envinxunem. De comrriission's standants and respiremmu should he or sudt nature as to specify, for eaample, exclusmn aree restassama on ute hourslancs. survedlance mpiro-mmta, detailed enginecrms requimnents, includmg luung ror tadmgs pmds, deph, aM typen of tail-(Conne.ed) 124 i
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As originally enxted, Uh1TRCA directed EPA to issue general standards foi inactive sites within 12 months, and for active sites within 18 months, after passage" When EPA failed to promulgate its standards within the time set by Congress, the NRC published its "Ufanium hiill Licensing Requirements," to meet its responsibilities under the Act,* 'Ihe Commission's 1980 regulations were tused upon the conclusions reached in the agency's generic environmen-tal impact statement on ufunium milling operations and management of mill tailings" and consisted of a general explanatory introduction and 12 technical criteria appearing as Appendix A to 10 C.F.R. Part 40. The regulations es-tablished a program to manage mill tailings by setting criteria for siting and disposing of mill tailings piles, controlling crosion and >tabilizing tailings, lim-iting radioactive effluents from uranium and thorium mills and mill tailings, controlling scepage of toxic materials from tailings into groundwater, provid-ing financial assurances for meeting disposal costs and long-term monitoring, and meeting the UhiTRCA ownership requirements for tailings and dis [osal sites?o*
After the Commission issued its 1980 mill tailings regulations, and primarily in response to the EPA's failure to meet the statutorily imposed deadlines of the Act for issuing general standards, Congress amended Uh1TRCA,*" The amendments set new deadlines for EPA to issue general standards " Congress also amended UhiTRCA to clarify that EPA, in promulgating general standards, and the NRC, in issuing mill tailings regulations, should consider - in addition to the risk to the public health, safety, and environment - the economic ings covers, populatim hmiuuons or insututimal arrangemems such as rmancial surety requirernems or sua accurity masures.
Il at 16.
- Pub. L No. 954M,4 206,92 stat 3MO.
" San 45 Fed. Reg 65,521 (1980).
- See NUREGo?u6, "Fuul Genenc Envtmnmental Impact stateman on Uranium MJima" (sect 1980) thereinafier Fmal oEls].
20e KerrMOes Nuclear Corgwsdon challenged the Comnussion's 1980 regulauons on wveral gmunds, includmg whaber the NRC had esceeded its statutory enthnruy in issumg regulaums pnar to the prennulgadon of EPA's geeral standards, he court d appeals upheld the regulaums. Kerr-McGee hdear Corp v. NRC.17 Env't Rep. Can. (BNA) 1537 (10th Cn 1982), vacated and rerg en basic greased (oct. 6,1982), After the Commisum issued amended mill tathngs segulauma in 1985, the court found that the 1980 reguladma had been supneded and vacated the sa basic setting.
- Act of Jan. 4,1983, Puh L No 97 415, il !8 22,96 stat 2067,2077 80 (1983)(coddied in scottered scedma of 4211s C.). In large measure, Congmas amended UhrrRCA to temolve the confusim that arose when EPA faded to meet the legisladvs deadhnes and the NRC neverthclass wet ahead and issued its mill tailmgs regulauma befwe EPA acted. See li.R, Conf. Rep No. 854,97th Cmg.,2d sess. 45 47 (19R21 20s Pub. L No.97-415, i18(a),96 sut 2trJ7.
In the ev'stt or a funher EPA Jefault in publialung standards for nave sues, the amendmenta addtumally pnwided that EPA's standarda-setung authonty would ternunate and thereafter be sacrcised by the NRC. In order to give EPA ttrne to meet the new statutory deadhnes for promulgating gecrat standants and, if necessary, to pnwide the NRC with the ogportunity to conform its regulatims to those of EPA or issue its own standards, the ernendmema suspended the Comnuaamn's 1980 mill taihngs segulauona until the begmnma of 1983, he amendments also suspnded certaut addtuonal provuions that hkely would be sfrected by I.PA's standanis until l
carly 19M. II i18(a),96 stat 2M7 78, 125 i
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costs of regulation, as well as such additional factors as the agencies consider appropriate 2* Dus, Congress adoed the language emphasized telow to the end of section 84(a)(1) of the AEA (which section had been added originally by UMTRCA):
"the Cornmission shall insure that the managemer,, of any barodua material, as defmed in secdm ill(e)(2)],is carried out in such manc.er as -
(1) the Commissian deems appupriate to potect the pubhc heahh and s.fety and the envirmment frum radiolcgical and run. radiological hazards associated with the pocessing and wkh the pussession and transfer of such material, taking hito account the risk to the public heasA, safety, and the environment, nkh due consideration of the economic costs ami l
such otherfactors as the Comminion determines to be appropriate '*
' Finally, Congress added a provision to the AEA permitting licensees to propose alternatives to the Commission's mill tailings requirements, Thus, section 84(c) provides:
In the case of sites at whid ores are processed primarily for their source material content or which are used for the disposal of byproduct material as defined in secdon lil(c)(2)], a licensee may propose alternatives to specific requirernents adopted and enforced by the Commission under this [Actl, Such ahernative pqcsals may take into account local or regional cmdidons, including geology, topography, hydrology and meteorology.
1he Cmtmission may treat such ahemadves as satisfying Cornmission requircrnents if the Commission determinea that such ahematives will achieve a level of stabilliation and cmtainment of the sites sxmccrned, and a level of protectim for public heahh, safety, and the envirmment from radiological and nonradiological hazards associated with such sites, which is equivalent to, to the catent pacticable, or more stringent than the lent which would be achieved by standards and requirements adoped and enforced by the Commission for the same purpose and any final standards promulgated by the Administrator of the Enviraunental Protection Agency in swordance with secum (275].2" Immediately after Congress enacted the amendments to UMTRCA in 1983, EPA issued its general standards for inactive sites,232 L.ater that year, EPA published its general standards for active sites, which, with the exception of those for groundwater, were essentially identical to its inactive site standards,2n 2mIt 122,96 stat. 2080.
M 42 U.s C,i2114(a)(1)(crnphasis added).
au42 U.S C.12114(c).
212 48 Fed. Reg.590 (1983) (codined at 40 C.F R. Il 192.04.23).
with one enceruun EPA's inactive site standards were upheld against numcas chalienges fan inhatry and avinxsnantal peutioners (meluding Kerr-McCze Covporation and Kerr-McGee Nuclear Corporation)in A=nesa Ening Congress v. Thomr 772 F.2d 617 (10th Cir.1985), carr. J,ai,J 476 U.s. I158 (1946) theremaher AMC
- 11. Dat excepta concemed gnmndwater, where, inetead or settmg speranc contaminant levels as the coun deemed necessary, the invahdated paruon or the EPA standant directed that smundwater contamination should be deah with on a site spectAc basa la at 638 39.
2nSee 43 Fed. Reg 45,926 (1983)(codined at 40 C.F.R. Il192.30s431 As in the case of the inacave site standards, EPA's acuve site standards also wre ur eld against numemus e
<iallenges by inhstry and envinmmental peutioners in a second case of the same name, Awnces Ma4ag Congrest (Comuaund) 126 l
f l
.- _-. -~- -. - _. ~.
Among other things, the EPA standards established radon emission limits for disposal areas and provided that such areas must assure control of radiological hatards "for one thousand years, to the extent reasonably achievable, and, in any case, for at least 200 years,"2" Subsequent to the issuance of EPA's general standards for actise sites, the Commission undertook rulemaking proceedings to bring its 1980 mill tailings regulations into conformity with ths EPA standards.2d nose proceedmgs cul-minated in the promu!gation of the Commission's 1985 regulations, amending the caflier 1980 requirements.24 Many of the 1985 criteria, again appearing as Appendix A to 10 C.F.R, Part 40, were unchanged from the 1980 version. The Commission changed other criteria to conform to the EPA standards and essen-tially duplicated the EPA regulations, Ibr example, Criterion 6 was amended to adopt both EPA's radon emission limits for disposal areas and its longevity standard, requiring waste areas to be designed to control radiological hazards "for 1,000 years, to the exten!!) reasonably achievable, and, in any case, for at least 200 years.-2n As pertinent here, the first three paragraphs of the introduction to Appendix A remained essentially unchanged from 1980. The Commission, however, added a new fourth paragraph in the 1985 regulations to implement one of the 1983 amendments to UMTRCA. As previously noted, that amendment added section 84c to the AEA in order to provid: site-specific flexibility in licensing by permitting licensees to propose alter'atives to Commission mill tailings requirements.2d ne new fourth paragraph on the introduction is virtually identical to the statute and states:
Ucensees or applicants may prtpose ahernatives to the specific requirements in this Agymdia. The alternative proposals may take into account local or regional cmditions, including geokgy, topography, hydmlogy, and metcomlogy. %e Cornmission may find that the pmposed attematives meet the Commission's requirements if the ahernatives sill achieve a level of stabilisation and amtainment of the sites cmcerned, and a level of protection for public heahh, safety, and the enviranment from radiological and nmradiologicat hasards associated with the sites, which is equivalent to, to the catent pracicable, or more stringent
- v. Thom.ar,772 F.2d Mo (10th Cir.1985), cars. deaisd. 476 U.S.1155 (1986). Many of the argumenu in the first case were repeated in the second. For example, protioners again argued that UhrrRCA and its legislative histmy m1uned EPA to and that trull taihngs plea posed a sigruticant nsk befae it could pmnulgais standards, and that EPA faded to cmaider costa in canpanaan with what peutimers perceived as the hmued nah to pubhc heahh.
De mun held, however, that in tihrrRCA Congress itself had determined that radon enussions from mill tailings posed a signi6 cant enough health nak to marrant regulatwn, and that liPA had pmtcrly considered cost-benefit rectas in piomulgating standarda. $se d at 6W 2M 40 C.F R. l192.32(b)(1)(i).
2M Sse 49 Fed Reg 46,418 (1984) (to be codtried at 10 C.FA Pan 40, Am A)(pmposed N.w 25,1984) 2M 50 Fed. Reg, 41,852 (1985). ne Canmunion's smundwater emena were further amended in 1987. See $2 Fed Reg 43.553 (1987).
2n 10 Cf.R. I%n 40, Am A, Cntenon 6 3,e 50 Fed. Reg. at 41.857-58.
2H See seres p.126.
127
- ~. - _ _ -
.-_m-
._-.-_-_.._.m__..
_ _- m _ _. -
than the level whidi would be adiieved by the requirments of this Appendix and the standards prtwnulgated by the l'.nvinnimetaallucction Agency in 40 CIR Part 192, Subparts D and li.M
'the 19h5 regulations also added a fifth paragraph to the Introduction, reiterating the 1983 amendment to UMTRCA and the AEA that was intended to clarify the factors the NRC should consider in regulating mill tailings As earlier indicated, the amendment to section 84(a)(1) of the AEA provided that, in addition to taking into account the risk to the public health, safety, and environment when regulating mill tailings, the Commission should also give "due consideration" to economic costs and any other appropriate factors,M Thus, the new fifth paragraph to the Appendix A Introduction paraphrases the UMTRCA amendment:
All site specific bcensing decisims based on the criteria in this Appendia or thernatives gwqused by bcensees or applicants will take into accamt the risk to the pubhc health and safety and the enytronment with due consideration to the econ 6xnic costs involved and any aher factors the Commission determines to be appnynate. In implementing this Appendia, the Commission will consaler " practicable" and "reanonably achievable" an equivalent tenns, Decisima involved [ sic] these terms will take into accmnt the state of tedsna,y, and the r
ectannics d impnmmens in relation to benefits to the public heahh and saft y, and other societal and socioecontwnic cmsiderations, and in relation to the utilisation d att mic energy in the pubiic interest."
Upon issuance of the Commission's 1985 mill tailings regalations, industry petitioners, including Kerr-McGee, challenged them. The court of appeals upheld the validity of the Appendix A Criteria in Quivira Mining Co. v. NRC,"
This case plays a prominent role in the assertions of the parties before us; indeed, several of their arguments are nearly identical to those made to the Quivira court.
It is thus useful brictly to review that decision, in Gulvira, the petitioners initially argued that the 1985 criteria were not supported by the cost-benefit analysis required by UMTRCA, The court held, however, that the 1983 UMTRCA amendments only required the Commission to conduct " cost-benefit rationalization" in issuing regulations and managing mill tailings, and it concluded that the Commission had done so," According to the court, that standard " requires the agency merely to consider and compare the costs and benefits of various approaches, and to choose an approach in which M10 CF.R. Part 40, App. A,inmmluctmn. See 50 Fed. Reg at 41,8%
M 5ee supre p.126.
D10 CF.R. Pan 40, Am. A, tranxtuctim, See 50 IM Reg. at 41,555.
- 166 F.2d 1246 (10th Cir.1989).
Uld at 125b58 128 l
l
~.- ---
costs and benefits are reasonably related in light of Congress' intent.""* It is significant that, in upholding the mill tailings regulations, the court determired that the 1983 amendment did not require the agency to perform "* quantitative cost itemization in dollars and benefit itemizat on in unspecified units for every i
sentence in the Appendix A criteria that might impose some burden on the indus!ry.'""5 Further, the court noted that the agency's general endeavor to take into account the '" economics of improvements in relation to tenefits to the public health and safety,'" set forth in the new fifth paragraph of the Appendix A Introduction, was sufficient to ensure that in future licensing actions the costs of regulation bear a reasonable relationship to its benefits?'
Next, the petitioners argued that the Commission's Appendix A Criteria failed to provide for the kind of site-specific flexibility in intidual licensing decisions that the 1983 addition of section 84(c) to the AEA r, quires. The petitioners also claimed that the new fourth paragraph of the Appdix A Introduction was insufficient to carry out this statutory command for flexibility, The court rejected these arguments, holding that the new fourth introductory paragraph, permitting licensees to propose equivalent alternatives to the Commission's criteria, fully met all of the statute's site-flexibility requirements?'
Finally, the Gulvira petitioners argued that UMTRCA explicitly requires the Commission to make a positive distinction between new and existing mill tail-ings sites, and that the Appendix A Criteria do not adequately make that dis-tinction. The court summarily dismissed this argument, noting that the statutory language of UMTRCA makes no such distinction and that the legislative his-tory relied upon by the petitioners indicates only that the agency is to " consider possible differences in applicability of regulations to existing versus new tail-ings sites.""8 Moreover, the court stated that, even if it accepted petitioners' premise, the site-speciGc flexibility incorporated into the fourth paragraph of the Appendix A Introduction meets any such supposed requirement.m 2.
With this background in mind, we now turn to the parties' arguments here regarding the Licensing Board's decision interpreting Criterion 1. That "4rd at 1250 (citmg A4fC 1,772 F.2d at 632). 3<< gre note 212..
In Guivers, the court then reviewed the sn:eria that remained casentially identical to the comnussim's 1980 regulaums (La,, Crtteria 2,3,4,7,8A, and partions er each or the others) and round that the Cmunission's undedying genene environmoual impact statemera ur m which the enteria were based estabbahed the necessary reammable relationship beween costs er conuols and bcnefas. 866 F.2d at 1252-57. see wre p.125 & note 205. It also reviewed the 1983 cntena that the Commtssicn revised to conrarm to I:PA's general standards (i.e.
parts or the Inuuductim. Cnteria 1. 5,6, and 8) and round Jtst the NRC's reliance on r.PA's cost-bencra analysis ror these requimnents was surficient. 866 F.2d at 1257 58.
D id at 1254.
- lbid
- 14 at 1259-60.
- It at 1260 n.17.
Did at 1260.
129
. - ~
- ~.
- - ~. _. --.. - -. - - -
Criterion sets forth the siting requirements of the Commission's mill tailings regulations, in Contention 4(a) the State asserted that, in its SFES, the staff misinterpreted the Commission's siting requirements for mill tailings disposal by concluding that Kert McGec's proposal for leaving the wastes onsite satisfies the require-ments of Criterion 1,5 Among other things, Criterion I requires that the follow-ing three site features be considered in assessing the adequacy of a disposal site:
(1) remoteness from populated areas; (2) hydrologic and other natural condi-tions that contribute to the isolation of tailings from groundwater; and (3) the potential for minimizing crosion over the long term." In light of Kerr McGee's plan to dispose permanently of 376,400 cubic meters of radioactive waste in the midst of the densely populated West Chicago area, just several meters above the water table," the Licensing Board aptly characterized Cntention 4(a) as going "to the heart of the ultimate issue to be decided: Is the West Chicago site acceptable for the disposal of the tailings?"m The Licensing Board resolved Contention 4(a) in Kerr-McGec's favor, hold-ing that the proposal for onsite disposal " satisfies the requirements of 10 C.F.R. Part 40, Appendix A. Criterion 1,"* In reaching this conclusion, it interpreted the Commission's mill 1111ings regulations as focusing on primarily two co 1-erations: economics and the difference between "new" and " existing" tai,ings sites. The Board's analysis is relatively brief and straightforward:
Ken.McGee correctly points out that the 1983 NRC Authorization Act amended i 84(aXI) to require the Cmunission to take into account risks to public health and safety and the environment while giving due consideration to econunics. De Commission respmded by
' inserting language in the Introduction to A[pendia A which requires that all site-specific decisisms take economics into account, his language goes on to state that in interpreting the terms "c,racticable" and " reasonably achievable"(which are to be considered equivalent),
considerade must be given to, among other things, "the economics of improvement
- in relation to the benefits to the phlic health.,
Ilanois is correct in its observation that Criterion I requires consideratie of r.rnoteness from population and hydrologic factors in choosing among alternatives, as well as that it directs that the site.selectim process should result in an cpimizatim of these goals. Were this proceeding concerned with the siting of a new facility so that cost differencea ammg potential sites were minor, Criterion I clearly would resalt in the disapproval of the West Oticago site because of its population density. Ilut this proceeding concerns the disposal of an existing tailings pile located on the West Chicago site. Kerr-McGee correctly points out that,like it or not, we must deal with that site. We believe that the amendments to the Introduction to Appendix A, which require that consideratim be given to ecmomics in all 8 3e4 I.BP49,31 NRC at 155.
W 10 Cf.R. Pan 40, App. A, entenon 1 m g,,,,,, p, 94.
E.DPM9,31 NRC at l$5.
l
- M. at 184,194, 130
=.
- _.. ~ _ -.- -
1 e
siting decisions and permit applicants to propose ahernatives, require that we approach this case with due regard for the fact that West Chicago is an existing sne. If those provisions were not in place, Ilhnois'isi position v.ould be correct and it wwld be neccuary to reject the West Chicago site at the outscL The requirement to consider economics as well as ahernatives means that West Chicago may be rejected mly after cmsideration is given to the costs and benefits that would be incurred by enoving the tailings to another site. Criterim I, when read in conjunction with the Intnxtuction to Appendix A, clearly requires this resuh.
Criterion 1 requires optimization of its enurnerated goals "to the maximum extent reasonably -
achievable... " The Introductson to Appendia A direcu that we inscrpret"to the maximum extent reasonably achievable" in light of the costs arid potential benefits that would be achieved by moving the taitings to another site which would qtimize those goals. tis Before us, the State and the City each argue that the Licensing Board turned Criterion 1 on its head by shifting the proceeding into one large cost benefit analysis and allowing short-term economics and design features to override the Criterion's siting features, which are intended to ensure the isolation of mill tailings for the very long term." "Ihere is no dispute that the West Chicago site cannot be considered remote from populated areas. In fact, the City points out that the site is located across the street from ni erous residences in the middle of the dense population center of West Chicago and is within 490 meters of five schools containing some 80 percent of the City's school children.237 Similarly, the State and the City contend that it is undisputed that hydrologic and other conditions at the West Chicago site do not " contribute to continued immobilization and isolation of contaminants from ground-water sources."238 Indeed, they claim that all parties agree that the West Chicago site has leached and will continue to leach into the groundwater, and that it is the only site of those studied that will not isolate the tailings from groundwater. In these circumstances, where the Commission's aiting requirements call for the selection of a disposal site that isolates contaminants from groundwater, the appellants argue that it is tota"y incongruous to rely, as the Licensing Board did, upon the great flow of groundwater und r the site to dilute the contaminants to regulatory limits at the site boundary, they further argue that the features of the West Chicago site do not contribute to minimizing erosion, so the site is not an optimization of the three siting features as required by Criterion 1. Thus, the State asserts that " West Chicago was selected as a disposal site for one reason-
- the tailings are already there - and was approved as a disposal site for one i
133 14 at 16348 (roranates emined; ellipses in arismal).
236Jee Bnef d the 15 1e ed the state nr llhrmis (Apr. 19. 1990) themnafter Elinois Brier) at 1, O,14-18; 9
west Chicago's Mcmarandum in sumort or its Appeal or the ASIFa Decum oranung 1.icense Ammament g 19,1990) themnarter West Chicago Brier) at 5-19.
l.
West Chicago Brier at 1 (citing slTs as 4-32).
21s 10 Cf R. Part 40, Am. A. Cniena 1.
13I I
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4 reason - it will cost Kerr-McGee at least 540 million to move the tailings to anodier site "*
Kerr McGec, along with the staff, arguer, that the Licensing Board correctly concluded that the onsite disposal proposal satisfies Criterion 1.5 in this connection, they both emphasize that the Licensing Board did not treat onsite disposal at the West Chicago site as a licensce-proposed alternative to the requirements of Criterion 1 pursuant to section 84(c) of the AEA and the fourth paragraph of the Appendix A Introduction, Rather, Kerr McGee and the staff assert that the Iloard found only that onsite disposal met the siting provisions of Criterion 1.*
In support of the Licensing Iloard's decision, Kerr-McGee argues, as it did below, that three guiding principles must be used in the interpretation of the Commission's mill tailings criteria, First, Kerr-McGee claims that the history of UMTRCA and the Commission's regulations "shows that the NRC has a fundamental obligation to construe the criteria so as to achieve a reasonable relationship telween costs and benefits."* Second, it recasts an argument that the court of appeals rejected in Oulvira and atscrts that, in applying the criteria, the NRC must recognize the difference between new and existing sites Finally, it attempts to revive yet anodier argument cast aside in Guivira by claiming that the criteria tr.ust be applied ficxibly on a site-specific basis to comport with the commands of UMTRCA. After reciting these "over-arching principles,"
Kerr-McGee argues that Criterion 1 does not set out rigid siting requirements; rather, it merrly articulates a general goal of permanent isolation of mill taillags and requires only that the various siting factors "*be considered' - as they demonstrably were."* Thus, it argues that, in determining that only Kctr.
McGec's onsite disposal provides a reasonable relationship between costs and benefits, the Licensing Board interpreted Criterion 1 in a fashion fully consistent with its language and the enumerated guiding principles,
- 3. Contrary to the assertions of Kerr McGec and the staff, however, the Licensing Board's interpretation of Criterion I cannot be squared with the plain language of the regulation 'Ihc starting point in interpreting any regulation is not, as Kerr McGee would have it, the consideration of "over-arching," albeit unwritten, principles. Rather, we must begin with the language and structure of the provision itself.* In undertaking this task, we must bear in mind the
- llhnais Bner at 8 (emphasis in anginal).
- Jee Dner d Kan Meoce Gemical Corporsum (May 21. 1990) thamnafter Ken Mcoce Dner] at 1&33, NRC staff nner at 1414.
- Ken Mcoes Brier at 3132 NRC stafr Dnd at 13-14.
- Kerr Meoee Bne.r at 19,
- l4 at 2s.
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elementary canon of construction that the regulation should tc interpreteel so as not to render any part inoperative; the whole of the regulation must te given effect.85 ltrther,"[a]lthough administrative history and other available guidance may te consulted for background information and the resolution of ambiguities in a regulation's language, its interpretation may not conflict with the plain meaning of the wording used in that regulation."2aa IIere, Criterion 1 must be read in concert with the appropriate portions of the introduction to Appendix A, which we have already set out."' Because Criterion 1 is central to our interpretative task, 'ac also set it forth in fall:
- 1. Technics: Cruerla Cruerion 1 - %e general goal or broad objective in siting and design decisions is permanrnt isolatim of tailings and associated contaminants by minimizing disturbance and dispersim by natural forces, and to do so without mgoing maintenance. Ibr pracdcal reasons, specific siting decisiens and design standards must involve 6 nite times (e.g., the Imgevity design standard in Criterior 6). De fotlowing site feature wludi will contribute to such a goal or objective must be considered in selecting among alternative tailings disposal sites or judging the adequacy of existing tailings sites:
Remoteness frcan poplated areas:
llydmlagic and other natural cmditions as they contribute to continued immobiliation and isolation of contaminants from ground-water sources; and Ibtential for minimizing ertsion, disturbance, and dispersian by natural forces over the long term.
'!he site selection process must be an optimindon to the maximum extent reasonably adiievabic in terms of these fear 2res, in the selection of disposal sites, primary empnasis must be given to isolation of tailings or wastes, a maner having long. term impars, as opposed to consideration udy of short.
term convenience or benefits, such as mirumintion of transportation or land acquisition coats. While isolation of tailings will be a function of both site and engineering design, entriding consideration must be given to siting features given the long-term natu s of the tailings baurds.
Tailings should be dispose <8 of in a manner that no active maintenance is require! 'o preserve cmditions of the site.
As is evident from a comparison of the language of Criterion I and the Licensing Board's decision interpreting it, the Board in effect penciled out not only key words but entire provisions, including the penultimate paragraph of the regulation. While disregarding portions of Criterion 1; undoubtedly simplifics it, such an approach is a wholly unacceptable method of construing the Commission's regulations. Rather, the regulation must be read as it is written 245,e Mowue.n Stares Tel A 7et Co. v. P=,No of Sante A=a,472 U.s. 237,249-50 (19tSh 2A sutherland, 3
syra nosa 244. I 46.06 24 egg,,ek,an, AI AB-900. 28 NRC at 288.
247g,,,,,e pp.127-28.
133 I
I
imd in its entirety? We therefore reject staff counscl's untenable suggestion i
at oral argument that, in interpretmg Crit:rion 1, we simply " ignore" certain
~
key words,2 When effect is given to all the words and provisions of Criterion I and the introduction to Appendix A, the regulations clearly require the nondiscretionary consideration of a number of explicit factors. As we explain below, the Licensing Board's interpretation not only overk>oks several of those factors, it blinks at the Commission's commands regarding the weight to be i
assigned to those fxtors in assessing a mill tailings disposal site.
Initially, we note our agreement with Kerr-McGee and the staff that the-Licensing Board did at judge permanent disposal at the West Chicago site as a licensee-proposed alternative to die requirements of Criterion 1 under section 84(c) of the AEA and the fourth paragraph of the Appendix A Introduction.
1 Rather, as they correctly assert, the Board held simply that disposal at the West Chicago facility satisfies the siting requirements of Criterion 1,* in its analysis of the mill tailings regulations, the Licensing Board several times observed that i
the regulations permit licensees to propose alternatives to the requirements of the various Criteria, Yet the Board made no mention of the statutory standard under which such alternatives must be judged, Nor did the Board analyze onsite disposal under that standard, as would be required if it were treating onsite disposal as a licensee-proposed alternative Accordingly, we need not consider disposal at the West Chicago site as a licensee-proposed alternative to the requirements of Criterion 1 in reviewing the Licensing Board's interpretation of the mill tailings regulations.
The Licensing Board made several errors in construing the first paragraph of Criterion I, First, it characterized, as mere general " goals," the threc siting features - remoteness, hydrology, und erosion minimization -- that the regulation mandates be considered in all tailings disposal siting decisions, As a consequence, these siting features played only a subsidiary role in the Board's analysis ut Before us, Kerr McGee echoes this theme, arguing that the siting features are only general goals or broad objectives and, therefore, they are not mandatory requirements,W But this interpretation is contrary to the plain language of Criterion 1 because it confuses the goal set forth in that Criterion with the requirements specified to effectuate the goal. 'The first sentence sets out the only goal identified in Criterion 1 - the " permanent isolation of tailings
... by minimizing disturbance and dispersion by natural forces, and to do 24sSee NaturalJtemrra Defeare Cosmcil v. EPA, s22 F.2d 104,113 (D C. C r.1987) See atro syra note 24s.
24 9 App. Tr.154 Windeed, in light or its argument in this regard, we assume Kerr-Meoce would han resented us with an shernauve argwnent in support of the licenams Bcerd's decisim, if below it had intended to proffer permanan onsite disposal as a licenace-proposed ahernatin to the requartments or Cntenon 1 l
D1 3,, t.BPW9,31 NRC at 10M WKerr41coce Brier at 25, 134
l l
so without ongoing maintenance." 'Ihc three siting features that the Licensing Board and Kerr McGee so readily dismiss as mere goals are instead rNuirements that the regulation states "must be considered in selecting" a disposal sitem In the words of the Criterion, w hen the three siting features are properly considered they "will contribute to such a goal or objective " i.e., the permanent isolation of tailings without active maintenance. 'Ihis trading is precisely the interpretation the court of appeals gave Criterion 1 in Quivira, and it is the only construction that is consistent with the wording and context of the regulation.*
j Second, the Licensing Board read out of the first paragraph of Criterion 1 1
the Commission's directive that the three siting features "must be considered l
in selecting among alternative tailings disposal sites or judging the adequacy j
of existing tailings sites."m Rather than heed this clear instruction, it construed j
Criterion I to differentiate between new sites and existing sites and to require j
the consideration of the thlee site features only vis a-vis the former '!hus, in its l
analysis of the regulation, the Licensing Board acknowledges that the State is j
correct that " Criterion I requires consideration of remoteness from population j
and hydrologic factors in choosing among alternatives."* But in the next breath,
{
the Board states:
k iw!cre this proceedmg concerned with the siting of a new facility so that cost differences 4
{
among potential sites were minor, Cntenon I clearly would resuh in the disarproval of the West Chicago site becaue of its population density. But this proceeding concerns the disposal of an existing tailings pile located on the West Chicago site, Kert.McGee correctly j
points out that, like it or not, we unust deal with that site.#
)
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s WAs ocatnally promulgated in 1980 Cntenon I did not stuculate this " goal" as clearly as it does now. Instead, refemn oss made simply to "the broad objective at,solating the taihngs and associated contammants from man and the environment dunna operations and for thousands of years theteaher without mgang actave mair 'mance."
45 Fed. Reg. at 65.533 (codified at to CIR. Pan 40, Am. A, Cntenon 10981)). When the Cmaission amaincJ 4rrendts A in 1985, it clanfied the first prograph of Cntenon 1 "to emphastre that it states a gast and not a st4@A and to delete any specific time frame " 50 Fed. Reg at 41,856. h also changed "shall"in the l
faimh paragraph w hld" Ibut Cntenm i now states affirmauvely and at the outset what the "smeral goal f
or broad objective" nf the Commissam's mill tathngs stung and design dectsions will be.
Kere M@c seizes on the Commisamn's bner explanatim of this clan 5 cation to support its vice that the nursry of Cnterim I now reflects simply a regulatory goal, not a standard. Kerr-McGee Hner at 25 a.31 That strained readmg of the regulatory history of the pitwision, however,is at odds wuh both the language of Cnterian I itself and logic. Quite simply, had Llw Canmission imended in 1985 to relegate the three spect6ed atting i
features to a lesser role than they had served up to that urne,it would not have directed that these featurea "must l
be considered." That the regulation rneais exactly what it says and commands that the three siting features be cmsidered in selecung a disposal site is cmrtrmed by the staternent of Considerations acccenpanying the fmal i
mt!! taihngs regulations. 'Ihere, the Commissim notes that it is adopting "the standard convention on imposing an l
obhgattm" in the regulatims, and that "'must' is used as the mandatory form whcst the subject is an inartimate l
- 50 Fed Reg at 41,860.
j 866 F.2d at 1252 vol.
M l
10 CIR. part 40 Am. A Cnterim I (em@asts added).
W LBPM9,31 NRC si 163 (emphasis added).
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Not only is this interpretation contrary to the manifest language of the fifst paragraph of Criterion 1, the Licensing floard's construction reads into the reg-ulation Kerr41cGee's assertion that UhiTRCA explicitly requires the Commis-sion's regulations to make a positive distinction between new and existing mill tailings sites But in upholding the vahdity of the NRC's mill tailings regula-tions in Guivira, the court rejected that same argument by Kerr-hicGee and it has no more currency before us,"
Moreover, as the Guivira cottrt indicated, even if Kerr hicGee's view of UMTRCA is accepted, the provisions of the fourth paragraph of the Introduction to the Appendix A Criteria, providing that licensecs may propose alternatives to
(
the Commission's requirements, fully meet any supposed UMTRCA requirement that the mill tailings regulations distinguish between new and existing sites 2n licre, of course, Kerr-McGee has not pursued that option and that situation was not before the Licensing Board.2m More ifnportant, however, the Commission i
already considered any possible differences between new and existing tailings sites in promulgating Criterion 1 As is evident from the language of the regu-I lation, the Commission determined that, regardless of any such differences, the I
three siting features - remoteness from populated areas, hydrologic conditions, and crosion resistance - are so important that they "must be considered in selecting among alternative tailings disposal sites or judging the adequacy of existing tailings sites,'St in light of this explicit instruction, the Licensing Board could not properly interject into Criterion 1 any other differentiation between new and existing sites.28 W 866 li2d at 1260 & n 17. See eyra p.12%
As the Tenth Circuit naed, no UMTRCA pnmsian enphenly tequires a disuncton between new and existeg sites, and the legislauve htsory suggans mly that the NRC consider pasWe differmcrs in the applicabdity of mpuremems to ensung versus new tadmgs am 8% F.2d at 1260 n.17. Su 11 R. Rep. No 1480, syra nae 1%, p 1, at if>
W 866 IW at 1260.
2eg,,,,,,p g34
- 10 CER. Pan 40. Am A, Cntenon 1 (emphants addedi W otwiwaly,in judgmg the adaquacy of an custmg tailmp sne against the three stung features of Cntenm 1 and then cm,partng that nie to ahernadve sites measumi against the same siung requirements, the differmces betown siten become matters of degree; they are nonetheless to be measured by the same ya:tisuck. In ignonng the requirement of Cntenon 1 that existmg sites, like new sites, must be judged against the three site features, the tumsmg Bosni ernmemsly shestened the yardsuck far ensting sacs. When the Commtssim onginsuy
{
promulgated its min tedings regulatims in 1950, it rejected suggestims that less stnct entens be developed for eustmg sace. It espiamed that the tr)egulaums were devekred recognizmg that it may not be practicable to pnwids the same measures of conservadon at custmg auen as can be done at new sites where alternauves are not hmned. Cenatn requamnents m the regulaums represent mmtmum levels of praection of pubhc heahh, safety, cnd the envirmment. These requirements can and must be met in su cues. Ihr etample, requirements for mintmum ta.hnp cover, erosion prmecum, financial surety pnmstms, and the brned requirement that no l
mgomg scuve matntenance be needed to presave the tatimgs isolaum are mandatory m au cases. h wmld t
nm be possible, m the aber hand, to ime the bonom of an caistmg Ladmgs impoundment. Also, objectives (Centwed)
I 136
1he Licensing floard's treatment of the second and third paragraphs of Criterion 1 is simitarly flawed and does nc4 comport with the plain language of the regulation, lhe second paragraph provides that the process of selecting a tailings disposal site "must be an optimization to the maximum extent reasonably achievable" of the three siting features, 'lhe third paragraph then explains the ground rules for achieving the optimization of those siting features, First, the Criterion requires that in selecting a disposal site " primary emphasis must be given to isolation of tailings" because this radioactive waste presents "a matter having long term impacts, as opposed to consideration only of short-term convenience or benefits, such as minimization of transportation or land-
)
acquisition costs" Second, although the Criterion explains that " isolation of j
tailings will be a functbn of both site and engineering design," it then commands j
that "overridhig consideration must be given to siting features given the long-l term nature of tir tailings hazards.""
In reading tir Criterion, the Licensing Board noted that the second paragraph
)
directs that the site selection process must optimize "to the maximum extent j
reasornbly achievable" the siting features, As previously indicated, however, j
the Board erreacously labeled and treated the siting features as mere goals that
(
can be disrer,arded for existing sites,* The Board also recognized that the use j
of the tettn " reasonably achievable" in the second paragraph of the criterion j
brings into play the fifth paragraph of the Introduction, which provides, inter j
alia, that specific licensing decisions involving this term "will take into account i
.,, the economics of improvements in relation to benefits to the public health l
and safety," But, as is evident from the following portion of its analysis, the Licensing Board read that provision in isolation from the third paragraph of 4
l Criterion 1:
We believe that the amendments to the Introduction to Appendix A, which require that
]
cmsideratim be given to economics in all siting decisims,
require that we approach j
this case with due agard for the fact that West Chicago is an existing site, if those provisions 1
were na in place, Illinois'[s] position would be correct and it wmld be necessary to reject I
the West Oiicago site at the mtset. %c requirement to consider economics,,. means that i
West Chicago may be rejected m!y after cmsideration is given to the costs and benefits that would be incuned by moving the tailings to another nie.*
concernmg rennteness fmn pegle, pnmdmg below grade bunal, and transfernna ownership of sacs, may rmt tw met k aAa saw degres at an esistmg site as at a new site.
At some pnmt, a determmation, bawd on how a site measures up against all of the entens, must bc made as to whether the tadings should be relocated fun an esistag to a new site,
l 45 Fed. Reg at 65,523 (emphasis added).
M j
10 C.F.R. Part 40, Arp A, Cntenm 1 (emrhans added1
- as supra pp.134 35 5
(
M tJIPM9,31 MtC at 16M4 (footnota amiued).
4 137 I
4 i
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i 1
1
'Ihe Board thus totally ignored the Criterion's provisions specifying how siting and design factors, including short term economic costs, are to be weighed
?
in judging the adequacy of a disposal site. Indeed, nowhere in the Licensing Board's analysis does it even mention the significant provisions of the third paragraph of Criterion 1, in particular, dictating that " overriding consideration rnust be given to siting features." Instead of putting its thumb on the long-term siting features side of the scale, as the second and third paragraphs of Criterion I require, the Board tipped the balanec in favor of short term economic j
considerations.
Contrary to the Licensing Board's approach, the provisions of the Criterion's I
third paragraph taust be read in conjunction with the fifth paragraph of the introduction. In promulgating that introductory paragraph, the Commission
)
incorporated the mandate of new section 84(a)(1) of the AEA into the regulations so that all licensing decisions "will take into account the risk to the public health and safety and the environment with due consideration to the economic costs involved and any other factors the Canmission determines to be appropriate.""
f As the court held in Guivira, section 84(a)(1) requires the NRC to abide by the i
cost benefit rationalization standard in issuing regulations and managing mill i
tailings.2" According to the court, that standard " requires the agency merely to consider and compare the costs and benefits of various approaches, and to l
choose an approach in which costs and benefits are reasonably related in light of Congress' intenL"* Given the Licensing Board's reading of the regulations, it bears repeating that the application of that standard does not require a precise quantitative cost-benefit itemization in dollars or some other unit for every requiren,ent in the Appendix A Criteria that imposes some burden on j
a licensec.* Rather. that standard allows a much more general relationship j
between costs and benefits. The Gulvira court hcid that the Commission met the cost-benefit rationalization standard in promulgating the mill tailings regulations;" thus, when the commands of the second and third paragraph of j
Criterion 1 are followed in assessing the adequacy of a mill tailings site, that
(
standard is necessarily met in implementing Criterion 1.
Criterion I directs that, due to the long-term impacts of mill tailings," primary emphasis" must be given to the isolation of the tailings and less importance is to be attributed to "short-term convenience or benefits, such as minimizaticti 4
- 10 C.F.R. Pan 40, App. A Introductmn (emphasis addaO. In the Sutement or Cmsiderations accompanying l
$e rmal mal taihngs rules, the Canmunion stated that it
- views the mandate in section 844(1) as applying to j
all stpects or its uranium recovery pmgram.
. he insen to the Intmduction to Agymda A that paraphrases acctxe 84a(1) wd! expbettly emr asue tha punt? 50 red. Reg. at 41,355.
e l
zo % F.2d at 123152.
S i
- l4 at 1250
- /d at 1254 M id at 125158-l 138 i
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j of transpofution or land acquisition costs." This crucial weighing is necessary because mill tailings disposal is an exeecdingly long-term waste mafugement 1
problem, As the Statement of Considerations accompanying the original 1980 mill tailings regulations states, "Illhe NRC has evaluated this problem and developed regulations considering tie inescapable fact Olat the tailings will, in j
fact, femain hantrdous for extremely long periods of time, hundreds of momands of years "m flere, for example, the half life of the major thorium element in the i
West Chicago taihngs is on the order of 14 billion years,m Or, as the flouse l
Report en UMTRCA states, the hazard will persist "r.G Sng after our existing i
institutions can be expe ted to last in their pret.at forms "m anhough Cfiterion 3
I recognins that for " practical reasons" siting decisions and design standards j
must involve finite time periods, the tailings hazard does not disappear with the j
expiration of the 1000-year longevity design standard of Criterion 6, nat being j
so, the third paragraph of Criterion 1 directs that, in judging the adequacy of a disposal site, isolation of mill tailings (through an optimization of the three f
siting features of remoteness from populated areas, hydrulogic conditions, and i
resistance to crosion) is paramount, and short term impacts like the costs of
]
transporting tailings to another site are to be accorded lesser weight?'
Furthermm, t -1 again because of the long-term nature of the mill tailings haurd, tie -
t conunands that " overriding consideration must be given to siting featt relative to " engineering design" in order to ensure the isolation 1
i 1
M 1
45 red. Reg si 65,525 (em@ad.s added) see sera note 1%
}
M srts at 212,545. In terms of c4rnemm human s'.penenca., ume penuds of this magnitude era unfati umahic.
t 1
rve the re.tauvely ahort 1016 year kmgevity design stamlard d Cmenon 6 has nudi more meamng when it is l
secogmied, fut example, that Columbus saded to Amence mly $00 yce, ago and the Umted staws became e i
natim just twer 200 yests agn M
l H R. Rqt Na 1480, syra noin 106, pi,1, et 17.
- This =mshtma nf factors m assemamg the sufficiency of a min uihngs dispanal site in Cnienm I is also d tvcn i
by the difficulty and irnpreciaum inherint in pechetmg health effecu over the very hmg term. In the statammt uf Cmsideratims of the ly&O mill tailmgs regulauons, the cantmaswn saplained this perblem in iejectmg, as unreasmahle and hkaly nusleadmg, a stnctly quanttiative, incremental cost bmern methodology in favor of a less ngomus cust-benefit retumahratim appraadi far estabhshmg tailmgs cover requirements:
j oiven the leg term nature of the mt!! tailmgs hazards, and the complestty and mccrtamty associated with per:dictmg actual levels d radm ermssions and impaan over the kmg term, it is cmcluded that the 4
pthlem of determmmg tailings contamment requirauents cannot be reduced to the pimly mathematical j
formu:stuww reymred for the quanutauve cost-benrJit npumiration methodology. 'the mathematical pnuma grosaly ovsmmphfies the pn+1em and, thus, while it appears to offer a "raunnal appmach" to donatemakmg, it can be nusleadmg and qune arbitrary.
4 one of the obvious pmNems with this methodology is that argurnents can easily be made for virtually I
orpaus pimainna (hitle or no cmtrul, versus absolute cmtml c(f] radon relenws) merely by measunng potenual health impeas over shmt or lang time periods. In feo, cunmerners dul uus. 'the monetary 4
worth of evertmg a health effed ("hfe has" at 7tfe shortenmg* due to cancer)is another highly subjective factor 3tuch can vary widely and, thus, make nwre uncenam the level of emtml which shmld be requtred.
r Whtle ar strary dectsions might te made ctmcentmg these factors, there is no pracuceMe way to conelate e
I ims term cauainment performance umquely with costs.
l 45 in Reg at 65,524 25 4
139 1
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of tailings. " Overriding" is defmed as " subordinating all others to itself"S While care must always be taken not to apply dictionary definitions mechanically i
in unintended contexts," here the purpose of the Commission's word choice seems evident. Once again, because of the execedingly long-term nature of the tailings hazard and the potential for failure of engineered features over the very long term, the Criterion directs that the three siting features are to be given j
preeminence over engineered design features in assessing the adequacy of a q
tailings disposal site. As the Commission itself put it: " siting is of paramount importance in developing optimum tailings disposal programs, The problem of l
tailings disposal cannot be approached with the attitude that inadequate siting features can be compensated for by design."2" l
As detailed above, the Licensing Board's construction of Criterion I com-pletely ignores the Criterion's third paragraph, and its interpretation of the first j
and second paragraphs cannot be squared with the plain language of the regula-tions, Accordingly. vt: reverse the Board's determinat'on that the West Chicago j
site satisfies the provisions of Appendix A, Caiterion 1, "Ihe current state of the record, as well as our determination in the next section that the Licensing Board l
crred in granting summary disposition on a number of the State's contentions, precludes us from applying the provisions of Criterion 1, properly interpreted, to j
the West Chicago site and the alternative sites. llence, we reach no conclusion on the adequacy of any site under Criterion 1.
I B.
The State also challenges the Licensing Board's grant of Kerr McOce's
}
cross-motion for summary disposition on the State's admitted contentions con-cerning the ability of the proposed disposal cell to isolate mill tailings and to resist human intrusion over the long term without active maintenance, as re-quired by the Commission's regulations." Because the Licensing Board based its grant of summary disposition of these c4 4tentions upon an erroneous defmi-tion of " active maintenance" and upon an incorrect application of the standard j
for granting summary disposition, we reverse, in its resolution of these con-i tentions, the Licensing Board combined Contentions 4(c) and 4(d) and similarly j
addressed Contentions 4(c) and 4(g) together, it then disposed of each grouping 7
without further differentiation. For ease of reference, we discuss the contentions
{
in the same manner, l.
As previously indicated, Criterion 12 requires that the final disposition of mill tailings must be such that ongoing active maintenance is not necessary to preserve isolation." Additionali a portion of the siting and design goal 4
l MWeluss/s TArdhsw /wsraatwaal Decimaary 1609 (1971).
M 5ee Farmers Rourmr & Irrisetwa Co. s. Md'omb. 337 U.s 755. 764 (1949).
l I"45 Fed Reg. at 65.524, Su aim Imal oLls at 15 C' good sitmg is or ommdmg imponance m isolating the tailings and associated hasarda; inadequate sitmg cammt be evenne by design").
MSee ISP.89-33,30 NRC at (J6 90,
}
D See nere p.10&
l j
140 l
s t
set forth in the first sentence of Criterion I provides that tailings should be permanently isolated "without ongoing maintenance." The last guragraph of that criterion further amplifies that provision, stating that "[t]allings should be disposed of in a manner that no active maintenance is required to preserve conditions of the site." "Ihc State's Contention 4(c) alleged that Kerr McGee j
failed to demonstrate that, without active maintenance, its proposed above-grade i
disposal cell provides isolation of the tailings from natural crosional forces reasonably equivalent to below-grade disposal, as Criterion 3 requires.2so Related j
Contention 4(d) alleged that the embankment and cover slopes of the proposed a
cell are not relatively flat after stabilization so as to minimize the potential for I
erosion and provide conservative factors for safely assuring long-term stability, l
as Criterion 4 requires.285 l'urther, the contention asserts that the final slopes j
will not be contoured to grades that are as close as possible to those that would j
cxist for below grade disposal. The Licensing Board characterized Contentions 1
4(c) and 4(d) as alleging that, "because the 20% slope proposed for the disposal i
cell's sides, while not prohibited, will require active maintenance over the long j
term in order to resist crosion, the cell will not provide isolation equivalent to that provided by below-gmde disposal"m
- In its resolution of these joined contentions, the Licensing Board determined that the kinds of maintenance necessary to repair the damage to the disposal cell that the State claimed would be caused by crosion - namely, burning or mowmg the top vegetative cover and making other minor repairs - did not I
constitute" active maintenance" within the meaning of Appendix A. It concluded,
]
therefore, that such anticipated maintenance activities could be performed in the j
future without running afoul of the mill tailings regulations. At the urging of f
Kerr McGec, the Licensing Board adopted the definition of the types of activitics i
that do and do not constitute " active maintenance" found in the Commission's j
regulations governing the land disposal of radioactive rste 2s3 Section 61.2 of 10 C.F.R. defines " active maintenance" as i
j any significant remedial activuy needed during the period of institutional contral to rnaintain -
l a reasable assurance that the performance objectives [of Part 61) are met. Such actisc maintenance includes ongoing activities sud as the pumping and treatment of water from a dispmal unit or onetime measures such as replacement of a disposal unit cover. Active uruir.tenance does not include castodial activuies such at repair of fencing, repair or i
replacement of monitoring equipment, revegetation, minor allitiorLr to soil cover, minor repair of daposal asnit covers, and general Japosal site upkeep such as mowing grass ***
t i
2aO f
Sss sere p.105.
2'l i
lbsd
- !.HP 89 35. 30 NRC at 68) 2s15es Kerr-MSce CnnMotion at 4M4 2s4 to Cf.R. (6L2 (emg+ans added).
141 I
h l-
l i
f According to the Board, " Illinois and Staff pose [d] no objections to this defmi-tion in their responses to [Kerr-McGee's] cross-motion" for summary disposi.
j tion.2as 'Ihus, the Board incorporated this definition into Part 40, Appendix A, "because the goal stated in 10 C.F.R. 9 61,44, elimination to the extent practi-l cable of the need for active site maintenance ollowing closure, is very similar r
l to the goal of Criterion 12."28' But in its cross-motion for summary disposition urging adoption of the section i
61,2 definition of active maintenance for use in Part 40, Kerr-McGee did not inform the Board,5 nor a[parently did the Board independently discover, that j
the immediately preceding section of the regulations, section 61.l(b), explicitly j
provides that the Part 61 " regulations... do not apply to.... disposal of uranium or thorium tailings or wastes (byproduct material as defined in s40.4(a-1)) as provided for in Part 40 of this chapter in quantities greater than 10,000 kilograms and containing more than five (5) millicuries of radium-226 "* Moreover, section 61.2 itself defines "[w]aste" for purposes of Part 61 as " low-level waste [,]... that is, radioxtive waste not classified as high-level j
radioactive waste, transuranic waste, spent nuclear fuel, or byproduct material as defined in sectian 11e.(2) of the Atomic Energy Act (uranium or thorium j
tailings and waste)."* lt is thus clear from the Part 61 regulations themselves j
that the Commission did not intend for any part thereof to be applied to mill i
tailings disposal.
l The Board was also seriously mistaken in its expressed belief that the State j
did not oppose the use of the Part 61 definition.2* Contrary to the Licensing I
l
- !SP.89 3s,30 NRC at 683.
2a6/hl sectim 61.44 provides that *(tlhe disposal facthty must be saed, designed, used, operated, and chmed to j
achieve long term staMhty of the espual sue and to cimunate to the eatent practicable the need for ongoing acuve maintenance of the disemal aue following cksure so that only survdiance, momtaring, w mins custodial care bs) taquared." In mlyms on Llus sectim, however, the Board sprwremly was unaware that 10 Cf.R. 4 61.59(b) prohibits reliance e auch survedlance or *mmor custodial care" for "more than 100 years," a period an onfer of t
magmrude ahorter than the 100tlycar longevity design standard for md1 taihngs.
2a7,, g,,,gg,, c,,,.pngio,,, 4344_
4 3
- IO CER. 6 61 l(b)(2).
2n/d 8 61.2 (an;*ases added) i As we have already mued (apre i % 147), the staf' us, et a nummam, senously rermsa in nra cathng to the i
1.icenamg Board's auentmn its view at th wamns of acuve maintenance emiamed in the draft sTP that was 1-made avadaNe for funic comment works More the staff fded its responses to the state's and KenhOce's l
mmons for summary esposition. The staff's ailence m the inapphcahday of the Commiasim's Part 61 low-level 1
wasta regulaties to oul1 taihngs governed by Part 40 is eve more pinhng in hght or several of its answers to i
cianmenia on the drah sES in which the staff specirically adnowledges this very pomt. Consider, fur casmple, the following comment on the draft sEs and question pued to the staff; iTlhe Code of Federal Regulations act by the NRC - Code 10 CIR, Vol.10, Part 61.
. in general -
states that the hcensms of any new low level nuclear dump site should not be carned out in a densely pyulated area due to the inhemu tish of possible adverse effects m the populous and the envimnment.
i l
Why, then, is the West Oticago site not covered under your agencus [me) own set of federal safesy regulations, and why the inemststecy of the NRC7 t
i sES at il 5s. la response, the staff stated that *b]he West Clucago site does not fall under the regulatima j
cmtamed m 10 CTR Part 61 because of the type of matenal involved
- 14 at 1140 See abo id at flat,1179.
2eg,, g,gp.8945,30 NRC at 683.
i 142 l
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Board's statement, the State disputed explicitly the use of the Part 61 definition in its response to Kerr McGee's cross-motion for summary disposition and the accompanying affidavit of its expert witness, Dr. niers. lie explained why Part 61 does not assist in discerning the meaning of active maintenance as used in Part 40, by contrasting Part 61 low level waste with Part 40 mill tailings.
In this regard, Dr. Thiers stated that, pursuant to Part 61, low-level wastes generally will be placed below grade or scaled in concrete vaults with a 500-year design life. lie further explained that the Part 61 regulations provide for only a 100-year period of institutional control because Class A and Class B low-level wastes have a relatively short half-life and will decay during that period, while thorium tailings include radioactive materials with half lives of many thousands of years, Next, Dr, Thiers stated that EPA's regulations for tructive mill tailings sites, 40 C.F.R. Part 192, and the tosis for those regulations set forth in the Statement of Considerations accompanying diem, provide the correct guidance for dealing with the disposal of mill tailings, lie then explained that, because of the long-term impacts of mill tailings, those regulations distinguish between active and passive controls and that passive maintenance, unlike active maintenance, includes no planned maintenance by people. Consequently, Dr. Thiers stated that a passive maintenance structure is self maintaining and designed against the probable maximum flood (PMF),
the PMP, the maximum credible earthquake (MCE), and other conceivable destructive events, with no planned human maintenance.2n In light of the explicit statements in 10 C.F.R. il61,1(b) and 61.2 of the inapplicability of Part 61 to mill tailings regulated under Part 40, we hold that the Licensing Board erred in its use of the Part 61 definition in this proceeding, If regulations are to have any meaning, express exclusions and prohibitions must be obeyed, in some circumstances, if a regulation does not define a particular term, it may be acceptable to borrow the definition of a like term from another part of an agency's regulations. But this can never be the case where, as here, there are specific prohibitions against such application?
Furthermore, the definition adopic4 by the Licensing Mrd is inappropriate for the very reasons stated by the State's expert Dr. "D1iers. By virtue of the extremely long halflives of the elements found in mill tailings and the correspondingly long times the tailings will remain hazardous and need to be isolated, the Licensing Board should have crafted a defmition for the active maintenance prohibited by Part 40 that would preclude any maintenance, even minor in nature, that is needed to ensure comphance with the design longevity 1-2H ArMavn of o.R. 'thiers [hemnafter Thiers sep. 11, 1989, Arfidavit] at 13-14, attached as F.ahibit A to I%ple's oposason to Kem McGee's Crms Mothm for Summary Dispositum (sept. 21,1989) themnaner state's witim). So alto state's o osuun at 4s-46,48,48 Fed. Reg at 597.
m Kerrhoce's mumel emceded as mudi at oral argumerst. App Tr. 83, 1
e 143 4
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standards of Part 40, Accordingly, insofar as the Licensing Board relied upon i
the Part 61 definition of active maintenance in granting Kerr McGec's motion for summary disposition of Contentions 4(c) and 4(d), we reverse, j
2.
In addition, we reverse the Board's treatment of these contentions for j
the independent reason that it misapplied the standard for granting summary i
disposition, Section 2,749 of the Commission's Rule; of Practice governs l
motions for summary disposition, Only if there are no genuine issues of material fact and the moving party is entitled to a decision as a matter of law, may I
the pn: siding officer grant the motion,* Conversely, if a disputed issue of material fact exists, the motion must fail,* In weighing the evidence, it is well-settled that all inferences must be drawn in favor of the party opposing summary disposition, Here, due to the existence of several disputed issues of material fact, the Licensing Board erred in granting Kerr-McGee's cross-motion l
for summary disposition on Contentions 4(c) and 4(d),
4 First, the Licensing Board erred in dismissing, on summary disposition, the j
State's challenges to the intrusion barrier. As the Board saw it, the purpose of
~
the clay-cobble intrusion barrier underlying the vegetative cover is "to prevent i
human and ani.nal intrusion and to provide added assurance of cell stability in the event that the topsoil layer is lost for some unspecified reason during i
the design life of the cell,"* The State, in opposing Kerr M;Gec's cross-1 motion for summary disposition, challenged the adequacy of the disposal cell design because it failed to provide certain information on the particle size and distribution of the clay <obble layer, thereby preventing the State from j
being able to determine the effectiveness of the intrusion barrier. Despite j
its acknowledgment that the intrusion barrier served some purpose, the Board j
nonetheless held that the missing infortnation was immaterial because the barrict j
was not required by Appendix A,"'
i Contrary to the Board's determinatian, however, the missing information d
regarding the particle size and distribution of the clay-cobble laycr was material, As the State's expert, Dr. Thiers, explained in his affidavit in support of the f
State's position, without the specification of the percentage of such particle size 1
- 10 CIR. I 2.749(d). See, e 3., Florida Powr & Lig & Co. Crurkey Putnt Nuclear Generaurta Plant, Units N.u.
3 and 4), A!AB-6% 14 NRC 987,1001 (1981)(citing Varrima Electnc and Powr Co. (Nceth Anna Nuclear 4
Ibwer staum, Umts 1 and 2), AIAH 584, il NRC 451,433 (1980)).
A matenal ract is me that arrects the outcune or the htigaum or tends to resolve any or the issues raised by the parties See gameralty 10A C Wright, A. Miller, & M. Kane, Federal Practica sad Procedure ( 7125, at 93 95 a
l g83).
j See, e s, PuMc servre Co. of New Hampssure (Scabnd s;aum, Units I and 2), AIAB-924,30 NRC 331, 3454 7 (1989).
s
- See, e g, Addes v. Sit Krear A Co.,398 U.s.144 (1970)
- tEP-89 3s,30 NRC at 687. As discussed supra p.111, at the time or the Board's tuling on the summary disposmna rnotims, neather Kerr4kGee nor the stafr considered the inuuswn bemer as the primary means in auure that the dispumal cea met the ernsion protecum and legevity design standards.
- l3P-89-35,30 NRC a 6A7-88, i
144 i
4 i
2 1
4 8
and the percentage of soil fines to be employed in the intrusion turrier, the
)
j ability of the material to resist the design storm cannot tie reliably evaluated,2*
The Licensing Board examined the intrusion barrier "Ib]ecause [it) is part of l
the design," and for that reason the Board sought "to determine whether it is l
likely to perform its if.nied function under conditions likely to prevail during 1
the design life of the celi. 2" In addition, the Board stated dut one of the i
intended functions of the bairict was to assure " cell stability in die event that the lopsoil layer is lost "* In such a circumstance - i,c., the absence of a " full j
self sustaining vegetative cover"- however, Appendix A Criterion 4 requires a " rock cover" like the intrusion barrier in order to reduce crosion to negligible levels," 'lhus, under the terms of its own analysis for ex,. mining the barrict, the Board could not dismiss as immaterial the particle size and distribution of the clay-cobble layer on the ground that it was not required by the regulations,"
Accordingly, the Board erred in rejecting the State's challenge by determining that the intrusion barrier was not required by the regulations, Second, the Licensing Board also crred in summarily disposing of the State's i
challenge to the flooding event used by Kerr-McGee in its etusion analyses, The l
State, through the affidavit of Dr. Thiers, pointed out that the crosion estimates of both Kerr McGee and the staff relied on flooding events ofless intensity than j
that generally accepted by the NRC, As Dr. Thiers explained:
i (ilf the tmsoit is not designed to resist the PMP a gully will form, concentrating runoff and imdmg to erode the underlying intrusion layer. Unless the intrusion layer is designed to withstand this conditim, crosim will continue downwards and back into the tailmgs, spreading those materials into the emironrnent. 'This is major damage, and wuld require active maintenance or major reconstmction to correct the spiti. Unless erosion protection 4
sufficient to resist runoff fnun the PMP is provided the design does not meet the practice generatly accepted by the NRC,"
2w niers sept. 11,1989, affidavit at54,1617. See ife pp.145-46, concernuut the desian storm.
I No party challenges tV 11uers's credenals. lie is the Pnneipal occtechnical Engineer at M K Envinmmental j
serywes, san Francisco, Cahfama, and he holds D s., M.s., and Ph D degnes m civil engmeenng famt the j
University ti Cahfomia, Berkeley, where the pnmary emphasis of his graduate atuaca was m gemechrucal cogtnemng He has suhutantial empenenm with the reclamaum of rad osctive mill tadings sites, includmg supervising the cmsohdation, acepage, and seismic anaipes for a majw tadings depioit near Uravan, Colm Jo.
5 He also has developed entena, as n.ll as design and analysts prwedures, for the design of 24 uranium repmitories t
in 10 stsics under Title 1 of UMrRCA la addition, Dr, Thiers has supervised the preparation of construction
{
drawings and specifications fm three taihngs aclamation sites and saanaged engineenng during constructim at three saes. see Affidavit of o il Thiers (heremaher Die? July 21,1989. Affidavit) at 1, anached as Euhibit C l
to People's Mouon for summary Disposition (Ady 31,1989) (hermnafter state summary Disposition Mmon].
l 2"tJlp.89-35,30 NRC at 687.
- /bi,1 i
- 10 Cf R. Part 40, Arp A, Cntenm 4(d).
(
- ne Board's ndmg in this regard is also inavisistent with its earlier rejectim of the state's challenge to the sufficiency of the vegetauve cwer. see IJIP 89-33,30 NRC at 6A&t7. As we have already seen, howewr, m i
rmeng the vegetauve emer adequate, the Doerd artuncously relied upon the defmtuon of active maintenance in sectwn 61.2.
l "Diers sept. 11,1989 AfWavi* at 5. See abo id at 7.
1 i
145 1
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lie also noted that the Department of Energy (LX)E) designs its mill tailings disposal cells to withstand crosion from a Ph1P event,"
ne Ikiard, however, dismissed Dr. Thiers's opinion as a " bare allegation" with "no technical basis for his conclusion.""511 also described the crosion dam-age that Dr. Hiers alleged would occur as "the sort that could be corrected by minor repairs "" Thereafter, in denying the State's motion for reconsideration, the Board determined that the flooding event employed by Kerr-hicGee "has a return frequency of far less than once every 200 years," so "the minimum design objective of Appendix A to assure isolation for 200 years is self evidently met by a wide margin under [Kerr hicGee's reduced flooding esnt designj.""
ne Licensing Board improperly disregarded, as a "iore allegation," Dr.
Hiers's expert opinion concerning the appropriate ilooding event." Dr. niers's affidavit unquestionably raises a disputed issue of material fact and provides an adequate technical foundation -i.e., the generally accepted ositions of both J
the NRC and DOE, as well as his own expert opinion - which the Board was not free to disregard. Rirther, the Board fails to explain how the "ma-jor reconstruction" alleged by Dr. Thiers can be characterized as " minor re-pairs " And, as previously shown, even " minor repairs" fall within the bounds of prohibited active maintenance. Finally, the Board was mistaken concerning the acceptability of a design longevity standard of 200 years, in promulgat-ing the final rule for its Part 40 regulations, the Commission recognized that
" EPA's primary design standard is 1,000 years, Accordingly, the Commission has no discretion to promulgate a different design standard for a shorter pc-riod."" he Commission also stated that "[t]he 200-year minimum longevity requirement provides relief in those unique reclamation situations where the 1,000-year criterion can be shown to impose too much of a cost hardship. The Commission views the EPA longevity standard to be 1,000 years unless site specific circumstances preclude meeting 1,000 years."S' Kerr-hicGee did not contend, let alone show, that circumstances at West Chicago preclude com-phance with the 1000-year standard. Hence, the Licensing Board mistakenly f
4 k
"It at 4.
"3
?
IJ1P-89 35,30 NRC at 689.
l "IkL i
"Feb.13 order at 8-
" As has been etmerved, "[elspert cpinion is adnusstble and may dereat suinmary judgman it it a; pears the j
ar6 ant is compeuma "a give an empest optamn and the rectual bans for the opinim is stated in the arridavit, even i
thmgh the underiytng factual detada and seaserung upon which the Tintm na based are not." Sadalues v. Resall l
Corp,789 F.2d 1315,1318 (9th Cir.1985). See also Fed. R. Evut. 70),70s.
l "so Fed. Reg at 41,836-3Nid at 41,858.
l 146 7
i
,n,,-.
4 i
used 2(X) years as the minimum design objective in granting summary disposition i
of Contentions 4(c) afv14(d).3" l
3.
The Licensing Board similarly erred in its disposition of the State's l
Comentions 4(c) and 4(g). De principal focus of the Licensing Board's i
discussion of these contentions was the State's argument that "the location of the
~
disposal cell within a densely populated area almost guarantees human intrusion absent a rigorous security program," and that such a program is inconsistent j
with the ifXX)-year longevity and "no active maintenance" criteria of Appendix j
A.3'2 The !!oard granted Kerr McGee's cross motion for summary disposition j
of these two contentions, concluding that, while "some human intrusion onto j
the site is likely[,1..
we do not believe that the site would constitute an attractive nuisance, so as to make such intrusion probable "'" Further, the Board j
determined that, "given the design of the cell so as to resist crosion, we do not believe that Dr niers has made a case that human intrusion could create q
j-damage so extensive that active maintenance would be required to co ect it as j
that term is defined in section 61.2."3'4 j
in opposing the cross-motion for summary disposition on these contentions, i
the State took issue with, among other things, Kerr McGee's position that the design of the cell'was sufficient to resist human intrusion. The State asserted that, since its deactivation, the West Chicago site has had a history of unauthorized human intrusion "despite fences, ' radioactive' warning signs, and security guards "3" Ibrther, the State claimed that, not only would such intrusion a
l continue, the cell itself would be invaded and require periodic active maintenance i
to repair it.32' in support of its position, the State offered execrpts from the l
prior testimony of a Kerr-McGee official concerning the numerous intrusions at the West Chicago site notwithstanding Kerr McGee's efforts to prevent such activitics,8l7 De State also offered the expert t.:stimony, by way of affidavit, j
of Dr. niers, lie contrasted underground disposal of mill tailings, "which i
30 Additimally, the licmsing Board granted Kerr4kOce's mmon for summary dupminon er Cmtentions 2(kk 2(pk 2(a), and 2(u) by scJytng upon its fmdmgs and reasonmg in dispoems of Comenums 4(c) and 4(d), or by fmdmg them duphcauve of %se contentions. TSP 89-35,30 NRC at 70102. In light of our revemal of the 4
Bosnre grant or summary disposition of Contendes 4(c) and 4(d),its ruhng on Contennms 2(k),2(p),2(sk and
{
2(u) must also be reversed.
g 3uld at 689. See stro Cotenon 4(d), whidt requires that fmal rock covers be designed "to amid displacemmt i
of nxk particJes by hurnan and ammal trafric; Cntenm 1, which specif.es remoteness frnm populated areas as a l
ainns feature, and Cntenat 3, whids idenufies below-grade durponal as the prefened optim.10 CER. Part 40, l
App. A Cntens 4(d),1, and 3.
l
'the cmccrn or the Canmission's reguladms that the design of tadmgs disposal sites effectively resist human intnuim can be traced, in part, to the 1.PA mill tailmgs regulatima that are miended to inhibit the " misuse" of 1
taihngs. See 40 CIR-119120(a)(1); A4fC 1. 772 F.2d at 6U-31 4
3"tEP 89 35,30 NRC at 6A9 M1 l
314 Il at 6M1 l
3" State's oppruinon at 48.
]
II'/hr i
3"Jee state's summary Disposinen Motion, Enhibit F.
147 4
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5 would reduce the temptation for unauthorized post construction excavation to j
essentially zero," with Kerr McGee's above ground design for the disposal cell at West Chicago. In the latter regard, he stated that "an unguarded 35-foot l
high,27-acre mound in a partly residential area has a nearly 100% probability of being dug into, either out of curiosity, or for ' free fill' or both "" As a result i
of such human intrusion, Dr. niers further concluded that "(cJach excavation l
cpisode would require at least maintenance level repair."m j
Once again, in granting Kerr-McGee's cross motion for summary disposition, j
the Licensing Board was not free to disregard the State's evidence concerning i
past intrusions onto the West Chicago site and the obvious inference from that j
evidence that such intrusions would continue in the future, nis evidence raised a di puted issue of material fact not amenable to summary dispnition. Indeed, the i
f Licensing Board's unexplained, unsubstantiated, and contradictory conclusions j
that, on the one hand, such intrusion is "likely" but, on the other hand, not 1
" probable" because the site is not an " attractive nuisance," only serve to highlight j
the lloard's error. Tbr one thing, in the context of the comprehensive scheme of j
multi agency federal regulation of mill tailings, the tort law concept of attractive 4
nuisance is entirely irrelevant. De Licensing Board also wmngly slighted Dr.
Thiers's expert opinion on the pmbability of intrusion into the disposal cell and 2
l the need for periodic maintenance to repair the damage. This expert opinion and the accompanying documentation were sufficient to raise a disputed issue i
of material fact concerning the likelihood of purposeful entry into the cell and j
the inadequacy of the cell design to resist it without active maintenance, so j
as to preclude the grant of summary disposition." Further, as already shown, the Board relied upon an improper definition of active maintenance to " define j
away" this disputed issue. Accordingly, we reverse the Licensing Board's grant l
of summary disposition on the State's Contentions 4(e) and 4(g).m 4,
Although the State and the City have raised a number of additional issues 1
in their appeal from the Licensing Board's decision, we emphasize that we have reviewed only those matters addressed in this decision. De absence of i
j 31sThiers July 21,1989,Afridavit at 7.
"Ibd j
"De slT3 itself casts even more doubt m the Board's rulmg:
Ahhough it is not pusthic in calculate pecessely the prehdity of human intrusion into any of the sacs,
{
the two most importars factors that are beheved to increase this prnhabdity are population density (in panicular whether there are schools and parts nearby) and degree of isolauan, he pecise trade effs or pTulauon densay vs. isolanon cannot be detenmned; however. because u is generally beheved 0 st a
mtruamn is more bhely under cmdatama of higher pondade density. the puential for human intrusim
{
uuo the sue area is cmsidered higher for the West Chicago ahernative m c<enpanson to any or the shernauve snes.
Sils at s 7. su sko a at 5-9.
I D in a sutwcquent ruhng, the facensmg Hoard granted, on the basis of us rulms an Cmtentions 4(e) and (g), Kerr-l Md'nis motim for aurnmary duposaaon of the state's Cmtention 2(h), which a'mo dealt with human intruzion.
1.llP-90 9,31 NRC at 190. Irt hght of our hohhng. that ruimg on Contentim 2(h) must also be reverscA 148 1
1 4
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discussion concerning these other issues should not be taken as our endorsement or approval of how the Licensing Board disposed of them, Indeed, we have l
considerable reservadons about the Board's treatment of several areas, e.g.,
groundwater
- and radiological impact. But the rulings set forth in this opinion, as well as time constraints and other circumstances, obviate consideration of any odier issues, and we see no purpose in thus lengthening further either this proceeding or our decision.
V.
LICENSE REVOCATION AND TERNilNATION j
OF Tile PROCEEDING i
ne Licensing Board's decision authorizing the staff to issue the requested license amendment for Kerr-htcGec's proposal was premised on that Board's resolution of all issues in Kerr hicGec's favor." Pafts III and IV of this opinion, a
g however, establish that that is no longer the case. A significant portion of l
the Licensing ik>ard's rulings must be vacated and/or reversed, and, in the j
alternative, the record warrants reopening for the consideration of new evidence on several crincal issues. There no longer being a record and decision to support authorization of the license amendment, it necessarily must be revoked as well,*
Indeed, this action arguatay should have been taken by the staff itself when it determined, several months after issuing the license amendment, that "it is not clear that the designs of the top and side slopes, the diversion channels, or the sedimentation basin are adequate to resist crosion to the extent that the i
requirements of 10 CFR 40 Appendix A are met."5 In any event, the staff's later j
requirement that Kerr-hicGee obtain a new license amendment to incorporate the addidonal design specifications requested by the stalT, in effect, amounts to in acknowledgment that the outstanding license amendment no longer provides sufficient legal authority from the NRC for Kerr-hicGee's proposal.
As noted earlier, in normal circumstances, we would remand this proceeding to the Licensing Board, both to consider the new informadon developed since the rendering of its initial decision, and to reconsider specified rulings in light i
j See lloani N,ttfwaam 904)$, ubere the staff acknowbiges that tLa envinmmental review or the impacts of j
Ken McGee's pcynaal m snund+ater maa ina.hpate i
D lllPM9,31 NRC at 1419s.
D See bag Isla=J Lg4ang Co. (sharrham Nuclear Ibwer statwn, t'mt 1), AIAB 902,21 NRC 423,434, f
rewww Jacisand, C1J tt 11,28 NRC 603 0988).
km.imns the matant decem before Se dois mi whidt the state has andmated it intenda to termmate Kerr-
{
McGee's heense (see sacra p.1011) makes it unnecessary for us to rule m Kerr McGre's mmm far a prmective enter we therefore deny the moum, mthout preplace, of cmrie, to the pursmt or other a[pmpnate rebel fnu the C untmasun D swih Ietter, l.nclcmart 3 at 1.
L 149 l
of the conclusions we have reached herein. Several facts militate against this action, however, First, the Commission has transferred its jurisdiction over mill tailings located -
within Illinois to the S. ate, And, in doing so, the Commission contemplated that there would be some future, site-specific proceeding conducted by the State involving the West Chicago facility,32' Second, the staff has determined that a new license amendment is necessary tr incorporate the design specifications supplied by Kerr McGee duririg the staff's reevaluatiori cf the proposal,uv As the State and the City correctly point out, the need for a new license amendment triggers their right to a hearing under section 189(10 of the Atomic Energy Act."8 Third, consideration of the developments since the issuance of the Licensing Board's decisions and correction of the other errors identified in those decisions would require substantial further effort. In large part, the proceeding must begin
- anew,
'Ihe appropriate remedy in these unusual circumstances, therefore, is to ferminate this NRC proceeding,5 thereby allowing consideration of Keft-(
McGec's plan to begin under the auspices of the State regulatory body now responsible for overseeing the disposal of mill tailings,* We note in this regard i
that, in any licensing pfoceeding conducted by the F-
'i regard to Kerr-McGec's disposal plan, section 274(c)(3) of the / ' '
. ires the State to j
provide procedures that include (i) an opportunity, after puhtic notice, for written comments and a [ubhc hearing, with j
a transcript, (ii) an wmunity for cross examination, and
{
(iii) a written determination which is based upon findings included in such determination and upon the evidence presented during the public cornment period and which is subject to 1
judicial reviewl.l*
i i
"See Imaois.Cl3M9,32 NRC at 21&l7;id., ClJWl1,32 NRC at 334.
1
- NRC staff Brief at 36,38; Bernem AtMavit at 4, swirt Afridavia at 9.
m 2 U.s C.12:09(s)(11 See Philadspia D<ctric Co. (Limenck Generating station, Unita 1 and 2), ALAD-j 4
j 785,20 NRC 848,884 n.lO (19s4)' id, AIAB 778,20 NRC 42,48 (1984), afd ab noat. AmAony v NRC, 770 F.2d 10r 6 Od Ctr.1985).
Duis, of course, doca not fonxiose requesta for Ccannuanon revtew of our deciaton.
- Cf. Formers l'ama Csw. ExcA. v. FERC,584 E2d 408, 410,4141 f, 421,22,424 (D C. Cir.) (in rare oi!
pipehne ratanaking prnecedmg - where them was an absence of established administrative pmxdents in that 4
area of ratemakmg, the record was found to be incomplete, and regulatory junadiction over oil prelines was
{
transferred to e,other agency while the case was pendmg on a;tcal-court granta request for remand made by i
agency now having junadiction, ao that it can begm tta regulatory duuca on a clean alate; court also cmcludea that any enammauen of issue on which record was found incomplete would be pmnature), cert demed,439 LLs.
]
995 (1978),
'
- 42 (Ls C. (2021(n)O). See state Agtcement IWy,46 Fed. Reg a 7544,10 C.FA i150.31(b)O)(i). It is intercatmg to rue that these statutcry requirementa for byproduct matenal licenseg pmmedmgs cmducted 4
by an agnement simo serrn to be more formal than those held to be required for byproduct matenal hcensing l
proceedega cmducted by the NRC. See West CA.csso, C1182 2,15 NRC at 247-56,,d"d,701 E2d at 645.
l 150 t
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of the conclusions we have reached herein, Several facts militate against this action, however, First, the Commission has transferred its jurisdiction over mill tailings located within Illinois to the State. And, in doing so, the Commission contemplated that there would be some future, site-specific proceeding conducted by the State involving the West Chicago facility,* Second, the staff has determined that a new license amendment is necessary to incorporate the design specifications supplied by Kerr-McGee during the staff's reevaluation of the proposal 5 As the State and the Clty correctly point out, the need for a new license amendment triggers their right to a hearing under section 189(a)of the Atomic Energy Act."
"Ihird, consideration of the developmen: since the issuance of the Licensing floard's decisions and correction of the v 4 i errors identified in those decisions would require subst mtial further effort, in large part, the proceeding must begin anew.
The appmpriate remedy in these unusual circumstances, therefore, is to termier this NRC proceeding," thereby allowing consideration of Kerr-McGee's plan to begin under the auspices of the State regulatory body now responsible for overseeing the disposal of mill tailings.* We note in this regard that, in any licensing proceeding conducted by the State with regard to Kerr-McGee's disposal plan, section 274(o)(3) of the AEA requires the State to provide procedures that include (i) an opprtunity, aftet public n(aice, for wntten cunments and a phlic hearing, with a transcript, (ii) an gyortunity for cross esamination, and (iii) a wntien detenninstion whidt is based upm fmdmgs included in such determination and upon the evidence presented during the pblic canment period and which is subject to judicial reviewi )m
- s** 1&=us, Clj 909,32 NRC et 21617; mi, ClJ 9011,32 NRC at 334.
M NRC staff Brief at 36,38;llernem Afridavit at 4, swift Afridavit at 9.
D 42 U.s C l."3*'s)(1), See PAliminlphia Dactne Ca. (1.imench Generstma Stauun, Umts i and 2), AIAB.
785,20 NRC s48,884 n 163 (19s4y, id., A1,AB.778,20 NRC 4148 (1954),d'd sub nosi. AarAony v. NRC, 770 F.2J livs (3d Cir.1985).
D This, of course, duca nos fareclass requesta for Cunnussion review of our deciaim
- Cf fewrs Union Cear. Es.1 v. FERC,584 F.2d 408,410,41&l7,42122,424 (D.C. Cir.) On rare oil pipcime rainsnaking pnweedmg - where there was an absence of estabbshed admimstrative precedents in that area of ratesnalung, the record was fmmd to be incomplete, and wgulatory jurisdiction over cal pipelmes was transferred to antsher agary while the case was pmdmg on egyent - court granta request fa rernand made by agency new havmg junadictwn, so that it can begm its regulatory duues on a clean stata; court also cmcludes that any esammahm of issue m which roccid was found incomplete would be premature), cert. dessd,439 U.S.
995 (1978).
- 42 U.s C, ( 2021(oK3) See State Agreennent Puhey,46 Fed. Reg at 7544,10 C.F R. { 150.31(b)(3)(i). It is interesung to note that three statutory requirements im byproduct material becnamg proceedmas cmducted by an agreement state acem to be more formal than those held to be reqmred for byproduct materiallicenamg penecedmgs emducted by the NRC, S<< wens CAwago, C1J-82 2,15 NRC at 247 56,(T'd,701 F.2d at 615.
150 l
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l VI, CONCLUSION
'Ihe Licensing 11oard's disposition of Contentions 4(c),4(d),4(c),4(g),2(k),
2(p),2(s),2(u), and 2(h), found in LDP-89 35,30 NRC 677, and LBP-90 9, 31 NRC 150, is wicated. In the alternative, the record on these contentions is reopened. In addition, the Licensing Board's disposition of these same contentions, as well as Contention 4(a), in Ll3P-89 35 and LBP-90-9 is reversed.
The Director of NMSS is directed to remke the materials license amendment authorized by LBP 90-9. This proceeding is ictminated.
it is so ORDERED.
FOR TIIE APPEAL BOARD l
Barbara A. Tompkins Secretary to tte a
,4 Appeal Board i
t i
I e
/
i i
i 1
i i
i i
151 i
3 I-,
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I I
l Atomic Sa"ety and Licensing Boarcs issuances ATOMIC SAFETY AND LICENSING BOARD PANEL g
l B. Paul Cotter,* Chief Administrative Judge 0
l Robert M. Lazo,* Deputy Chief Administrative Judge (Executive)
K Frederick J. Snon,* Deputy Chief Administrative Judge (Technical) l O
Members g
Dr George C. Anderson James P Gleason Dt E'nmeth A. Luebke l
Chartes BechhoeW*
Ot Cadet H Hand, Jr Dt kanneth A. McCollom l
Peter B. Bloch*
Ot Jerry Harbour
- Morton B. Margules*
{
l Glenn 0, Bnght Dt Davd L. Hetnck Marshall E. Miller Dr A. Otxon Callihan Ernest E. Hill Dr. Peter A. Moms James H. Carpenter
- Dr Frank F. Hooper Dr Rchard R. Panzek Dr. Rchard F. Cole
- Ehzabeth B. Johne Dr. Harry Rein 2
Dr Thomas E. Elleman Dr Walter H Jordan Lester S. Rubenstein Dr George A. Ferguson Dr Charles N. Kelber*
Dr David R. Schink Dr Harry Foreman Dr Jeny R. Khne*
Ivan W Smith
- O Dr Rchard F Foster Dr. Peter S. Lam
- Dr George Tdey John H Frye ill*
Dr James C. Lamb 111 Sheldc1 J. Wolfe d
e
- Permanent panelmembers i
I I
.. _.. _.. -, _ _.. -.. _ _ - - - - _... - -. - - - - - -. -.. - - - - - -.. - - - - - - - - - -. -,, ~, - -
1 Cite as 33 NRC 153 (1991)
LBP 914 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
i Ivan W. Smith, Chairman i
Dr. Walter H. Jordan Dr. Jerry R. Kline i
ij in the Matter of Docket Nos. 50 528-OLA 2
}
50-529-OLA-2 j
50 530-OLA-2 i
(ASLBP No. 91633-05-OLA-2) l (Allowable Setpoint Tolerance)
ARIZONA PUBLIC SERVICE l
COMPANY, et al.
(Palo Verde Nuclear Generating l
Station, Units 1,2, and 3)
February 19,1991 l_
MEMORANDUM AND ORDER-l (Ruling upon Petitions for Leave to Intervene) l I,
llACKGROUND i
i On December 27,1990, the Commission published in the Federal Register -
notice that the NRC is considering issuing amendments to the operating licenses l
of the Palo Verde Nuclear Generating Station, Units 1, 2, and 3, held by the j
Licensees, Arizona Public Service Co., er al., 55 Fed. Reg. 53,220-21. The i
notice explained that the proposed changes:
I f
would increase the allowable setpoint tolerance for the pressuriter safety valves fican 2500 pois plus or minus 1% to 2500 paia plus 3% or mines 1%; increase the allowable setpoint g
tolerance far the main steam safety valves frum 1250 psig and 1315 psig plus or minus 1%
f 153 i
a l
l i
i
. ~ _ _ _
to the same settings plus or minus 3%; reduce the minimum required feedwater flow frurn 750 gpm to 650 gpm; and redua the res[utse time for the high pressurizer pressure reactor inp from 1.15 secunds to 0.5 seumda.
Id. at $3,220.
j
%c notice also explained the opportunity for any person whose interest may j
be affected by the amendments to request a hearing and to file a petition for leave to intervene. The general provisions of the Commission's intervention I
regulation,10 C.F.R. 5 2.714, were set out in the notice. Two timely petitions I
for leave to intervene and requests for hearing were filed. This Atomic Safety and Licensing Board was established to rule on such petitions and requests i_
and to preside over any resulting proceeding by order of the Acting Chief i
Administrative Judge on January 29,1991, i
11, PETITIONERS A petition dated January 22, 1991, was filed by hiyron L Scott and l
Barbara S Bush, husband and wife, who own a home and reside in Tempe, i
Arizona. We refer to hir, Scott and his. Bush hereinafter as the " Scott / Bush l
Petitioners," recognizing that they also are petitioning in behalf of the Coalition
{
for Responsible Energy Education (CREE), which, in turn, is a project of Arizonans for a Better Environment (ABE).
Attorneys for Allan L. hiitchell and Linda E. hiitchell (hereinafter "hiitchell Petitioners") filed a petition dated January 28,1991. De hiitchells reside within
]
5 miles of the Palo Verde Station and hits, hiitchellis an employee of Arizona Public Service Company at the Palo Verde Station, Both petitions seek leave to intervene and request a hearing pursuant to the a
provisions of 10 C.F.R, 5 2.714, Licensecs and the NRC Staff 2 oppose the i
petitions, i
Ill, Tile INTERVENTION RULE 1
nc NRC intervention rule,10 C.F.R. 52,714, as pertinent to the initial l
petition stage of an NRC proceeding provides:
4 1
3IJcensees' Answer in otrosamn to f%uuons forleave to Intervene and Requesta for lleanng.Fet= vary 6.1991.
2NRC staff Respense to Peutions fa leave to intervene Iiled by Allan L Mitchell. tinda E. Machell. Mytun L scott. Harbars S. Bush and the Cushtion for Responsible Energy rducauon (Staff Response). February 11,1991 i
it wmid be helpful to the Boani and parues, who must cite to the pleadegs if the parties would use succinct titjes fm thmr rdmgs. Tales need only idenufy the pleadings. ma summanze them.
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(aX2). 'the petitim shall set fonh with particularity the interest or the petitimer in the i
proceeding, how that interest may be afleded by the resuhs of Oc proceeding, includmg the ressms why pentimer should be permitted to intervene, with particular reference to the factors in paragraph (dXI) of this section, and the specif6e aspect or aspects of the subject i.
matter of the proceedmg as to which peutumer wishes to intervene.
a..
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(dXI), l'lhe presidmg officer shall, in ruling on al petitim for leave to intervene or a j
request for a heanng, cmsider die fotlowing factors, arnong other things:
j (i)1he riature of the petitimer's right under the Act to be made a pany to the proceedmg.
j (ii)1he riature and extent of the petitioner's propeny, fmancial, or uhcr interest in the j
pracedmg.
(iii)'the possible effect of any order which rnay be entered in the proceedmg m the l
petitimer's interest.
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Other provisions of the rule provide for the filing of amended petitions and supplements listing contentions as we discuss below.
i IV. STANDING TG INTERVENE Contemporaneous judicial concepts of standing will be applied in determining w hether a petitioner has sufficient interest in an NRC proceeding to be entitled to intervene, it has been generally recognized that these judicial concepts involve a showing that "(a) the action will cause ' injury in fact' and (b) the injury is l
i arguably within the ' zone of interests' protected by the statutes governing that j
proceeding." Florida Powr and Light Co. (St. Lucie Nuclear Power Plant, j
Units 1 and 2), CL1-89 21,30 NRC 325,329 (1989); citing Portland General i
Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76 27,4 NRC 610,614 (1976); Metropolitan Edison Co. (Three Mile Island Nuclear Station, i
Unit 1), CLI-83-25,18 NRC 327: 332-33 (1983).
Most often in NRC proceedings, but not always, whether a petitioner would j
sustain an " injury-in-fact" as a result of an action covered by a proceeding has
]
been determined by whether the petitioner lives or engages in activities near the nuclear plant in question. Thus a petitioner may demonstrate the potential for 3
injury if the petitioner, or its members, live, work, or play, for example, in an area that might be affected by the release of nuclear radiation from the plant.
A leading case on this point is Virginia Electric and Power Co. (North Anna Power Station, Units I and 2), ALAB-522, 9 NRC 54, 56-57 (1979), where the proceeding involved a proposed operating license amendment that would l
authorize the expansion of the spent fuel pool capacity. There the Appeal Board j
would not rule cut as a matter of law derivative standing where a member of the petitioning organization lived about 35 miles from the facility, and where j
ar,other member lived 45 miles away but engaged in canoeing in close proximity to the plant. Id. at 57.
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Also, in North Anna, the Appeal lloard noted that it had newr required a petitioner in close proximity to a facility in question to specify the:
c.usal relatimship between injury to an interest of petitioner and possitde resuhs of the proceedmg. IFuotnde omitted.] Rather, close prominuty has always been deemed to be enough, standing alone, to estabbsh the requisite interest.
Id. at $6, citing, e.g., Gulf States Utilitics Co. (River Bend Strdon, Units I and 2), ALAU 183,7 AEC 222,223-24 (1974), and cases there cited. See also Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Pacillty),
ALAB-682,16 NRC 150,154 (1982).
It is especially noteworthy that the Scou/ Bush Petitioners, living in Tempe, Arizona, are said by the Licensees to live some $2 miles from the station. The Staff notes that portions of Tempe are more than 50 miles from the station.
Dese are estimates from map measurements. The Scott / Bush Petitioners have not specified the distance, Coincidentally, proximity of"approximately 50 miles" from a nuclear facility is the greatest distance, as far as we can find in NRC case law, that might support standing to intervene on proximity alone, Even that precedence is a rather weak finding by the Appeal Board that approximately 50 miles "is not so great as necessarily to have precluded a finding of standing...." Tennessee Valley Authority (Watts Bar Nuclear Plant, Units I and 2), ALAB-413,5 NRC 1418, 1421 n.4 (1977).
Since the Watts Bar decision, supra, licensing boards have routinely cited the 50-mile distance involved then: as the outer limit for proximity based standing to intervene.
E.g., Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-791,9 NRC 73,78 (1979); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LDP-82-43A,15 NRC 1423,1433 (1982).
The NRC Staff would have us distinguish between a situation where the proceeding is for the construction or operation of a nuclear plant compared to an amendment of an existing operating license Staff Response at 8, in support of its argument the Staff (and Licensecs) cite to the Commission decision in St.
Lucie, CL189 21, supra,30 NRC at 329 30:
It is true that in the past, wt have held that living within a specific distance from the plant is enough to cmfer standmg on an individual or group in proceedings for cmstruction permits, operating licenses, or significant amendments thereto such as the capansion of the capacity of a spent fuel pool. See, e.g., Varginia flectric and Power Co. (North Anna Power Station, Umts 1 and 2), At.AB.522, 9 NRC 54 (1979). Ilowever, those cases involved the connruction or operation of the reaaor itself, with clear implicatims for the offsite environment, or major alteratims to the facility with a clear potential for offsite j
cmsequences. See, e g., Gulf States Ulitisies Co. (River Bend Station, Units 1 and 2),
At.AH.lB3,8 AEC 222,226 (1974). Absent situations involving such obvious potential for I
4 l
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offute amequenas, a ytiti<mer masi allege some speific *mjury in fact" that will result imm Ove acton taken.
Staff Response at 8.
The Staff is correct; St. I,ucie is instruedve. ilut, unfortunately for the l
Staff's argument, that decision instructs us that, even in a narrow issue operating licensing amendment proceeding, as in North Anna (cited in St. Lucie and supra),
proximity alone in the case of an operating license amendment proceeding can suppon standing to intervene, i
As the Commission noted in St. Lucie, supra, the proposed amendment involved plant-worker protection - air purifying respirators in particular. The petitioner there was a member of the general public, not a worker. The proposed l
amendment had no potential for offsite conseqtsences, thus no injury-in-fact to the petitioner. Id.,30 NRC at 329-30.
As we are about to address whethsr the proposed changes at Palo Verde can support proximity-based standing to intervene, it should be noted that the only information we have about the proposed amendnacnts is set out in the Federal Register notice and is cited above. Supra pp.153 54. Ibr the purpose l
of establishing injury-in-fact to a petitioner's interest, we need not find that the pedtioner's concerns are well foun&d. North Anna, ALAB 522. supra,9 NRC at 55 56. liis responsibility to explain his concerns and to provid ' ?he bases for them will arise later at the contention-filing phase.
Ihr now it is sufficient to observe that the proposed amendm(. 's involve l
changes to at least four systems that are important to safety; pressuriwr safety i
valves, main steam safety valves, reactor heat removal via steam generator feedwater flow, and rextor trip. The quantity of change seem:, to us at this time to be significant in exh case. Whether the changes increase, or decrease, the potential for offsite consequences, they most assuredly imolve such potential.
See St. Lucie, CL1-89-21, supra, 30 NRC at 329-30. According!y, we rule that standing in this proceedmg can be established by proximity to the Palo Verde Station alone, 3i Mitchel! Standing The Mitchell Petitioners have easily established their standing by virtue of their residence within 5 miles of the station. In addition, the fact that Mrs.
Mitchell is an onsite worker at the station is an even stronger factor invohing injury-in-fact to her personal safety interests if the proposed amendments increase the risk of an accidental release. We need not address the other claims of standing set out in their petition.
157
l Scott!Ilush Standing 11 would seem that the Scott / Bush lttitioners live about 50 miles from the Palo Verde Station. As noted above, in the Watts Bar decision, the Appeal Board explained that "approximately 50 miles" is not so far as to rule out standing based upon proximity - nor do we rule it out. On the other hand we do not fmd from the petition that residing somewhere in Tempe in itself establishes standing. The 50-mile ruling was already very liberal and we are not inclined to extend it. We will hold the question of proximity-based standing in abeyance until the Scott / Bush Ittitioners provide further information in an amended petition, if they so cimose.
%c Scott / Bush Ittilloners also assert standing by virtue of their status as mernbers and officers of CREE and ABE, They state that a majority of CREE's members and directors reside in Maricopa County "at varying distances" from the palo Verde Station.
Organizations can intervene in NRC proceedings in their own right or derive standing as the representative of their members, llouston lighting and Power Co. (South Texas Project, Units I and 2), ALAB-549,9 NRC 644 (1979). But, the petitioning organization must explain why it or its members have standing.
llomton lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1977). De Scott / Bush Petitioners do not explain any better than they explained for themselves how the interests of the CREE members are affected by the proceeding as a matter of proximity to the Palo Verde Station. We cannot discern how close to the station the CREE members live or whether any engage in activitics near the station. Moreover, as a matter of proximity, the Petitioners do not explain how the CREE and ABE organizations might have standing in their own right. At minimum, if Mr.
Scott and Ms. Bush, on behalf of CREE, claim standing because one or more of CREE's members live or engage in activitics in close proximity to the Palo Verde Station, those members should be identified by name and exact location of the members' residence or activitics with respect to the station.
The Scott /ilush Ittitioners also claim stand:ng for themselves and for CREE members as customers of the Palo Verde owners. This claim, however, will not establish standing to intervene. It has been long estab 'shed that economic interests as rate payers do not fall within the " zone of lotcrests" protected by the Atomic Energy Act. Febble Springs, CL1-76-27, supra,4 NRC at 614. See also Three Mile Island, CLI-83-25, supra,18 NRC at 332 n.4 The Scott / Bush Ittitioners also assert that as citizens of the State of Arizona and of the United States they have an interest in the proposed amendments.
%cre is, however, no causal connection between their political status as citizens and the proposed changes it;volved in this proceeding.
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1 Accordingly, the Board rules that the Scott / Bush Petitioners, either for th:mselves or for CREE and ABE, have so far failed to establish standing to j
intervene in this proceeding. We will hold any ruling as to their final status i
to participate in the proceeding until they file their amended and supplemental j
petitions, if they choose to do so. He Board cautions Mr. Scott and Ms. Bush j
that any additional arguments in support of their claim of standing to intervene must be specific and sufficient to carry the burden of establishing the right to l
panicipate in the pmeceding. Rey will not be given a third chance to establish j
standing without meeting much more difficult pleading requirements relating to j
nontimely petitions. See 10 C.F.R. 5 2.714(a)(3).
V.
TIIE " ASPECT" REQlJIREMENT i
ne intervention rule tcAuires petitioners to state the " specific aspect or j
aspects of the subject matter for the proceeding as to which petitioner wishes to intervene." 10 C.F.R. 6 2.714(a)(2). Licensecs and the NRC Staff would have us deny both petitions on the gmunds that neither meets the " aspect" requirements.
Licensecs' Answer at i1 13; Staff Response at 9. As the Licensees acknowledge, they have little guidance from NRC case law for their position. Licensecs' Answer at Il-12.
l ne Board believes that the objection is misdirected in this case Section
' 714 is 'he general interventien rule controlling intervention in all proceedings under Subpart G. nus, in a full scope operating license proceeding, for exam-I plc, petitioners might be expected to explain that they wish to intervene in, say, j
the ingestion pathway emergency planning aspects, or perhaps financial qual-j ifications, or management competence, or whatever broad category of interest
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concerns them.
l In this proceeding the aspects of the operating license proposed for amend.
ment are already clearly set out in the Federal Register notice. Simply by peti-tioning to intervene, a person whose interest may be affected by the proceeding I
has indicated the aspects as to which that person wishes to intervene. Petition-crs necd not be more particular until they file their list of contentions. Most important, the Licensecs and the NRC Staff are well informed by early notice what any proceeding on the proposed amendments would be about. The Board l
believes that the "aspct" objections tended to be hypertechnical, unnecessary, and inconsistent with Licensecs' stated interest in " expediting the resolution of this proceeding...." Licensecs' Answer at 4-5 n.4 l
e Amended and Supplemental Petitions j
_ ne intervention rule provides that any person who has filed a petition for leave to intervene pursuant to the rr'c may amend his or her petition without l
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t prior at proval of the presiding officer (i.e., l.ieeniing thiard). 'the mie also states, as gettinent, that the amendment may be made at any time up to 15 days prior to the holding of the first Fehearing conference.10 C.F.R. 5 2.714(a)(3).
In addition, section 2.714(b)(1) povides, as pertinent here, that not later than fifteen (15) days prior to the holding of the first prehearing conference, the petitioner shall file a supplement to his or her petition to intervene that must include a list of the contmions that petitioner seeks to have litigated in the hearing.
As is often the case, the sequence and timing for the filing of amended and supplemental petitions under the rule must be changed by order of a presiding officer to provide for the efficient and rational management of the proceeding. In thiri case de Board sees no purpose to te sefved in calling a prehearing conference unic as and until it has been established by the filing of at least one facially acceptabc contendon by a petitioner that a hearing might be required. Moreover, if the petitioners wait until 15 days before the first prehearing conference to file amended and supplemental pedtions, the answers to diose petitions would not le in the hands of the Board and parties until the very day of the prehearing conference at the earliest, and possibly several days later than the gehearing conference depending upon the mode of service, in short, the Board and parties would not be prepared to attend to the very business for whkh the prehearing conference id convened if the schedule set out in the tule is followed. ~1herefore the Board suspends d'at provision and sets its own f
schedule below.
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1he Mitchell Peutioners, having already established standing to intervene, need only file a supplement to their petition with at least one acceptable l
f contention to le admitkd as parties to the goceeding, The Scott /Dush Peutioners, having failed to establish standing to intervene, need to amend their petition if they wish to establish standing. They also need l
to supplement their petitions with at least one acceptable contention in order to be admitted as parties to the poceeding.
The federal Register notice explained in detail the requirements for filing contentions in NRC poceedings.51he Board recommends that the Petitioners I
3 As tertinent, samm 1714(b) pnwidce; (2) fach emtstim must sensist or a spemfic staianent or the tasue or law or fact to te ta sed a sisstnwerwd in addaum the peutueier shall pnmde the fullowtrig mrmmatim with respect to cad 7
setevnust:
L (i) A tvief esplansunn d the bene of the emtenuan.
(u) A necise statemens of the surged facts or empen wmm whuh support the cornenuun and on ubch the peuunner intends to rely m prming the contmum at the hraring, together with references to thcee spenfic amrra and donmets d wbd the peuuoner is aware and an which the petitioner intends to reJy to estahhsh cume rects or espert opnian.
p (ai) surricimt informauan (wtue eney irnlude infurmatum pun ant to parsgraphs (b)(7Xi) and (6) or i
this section) to show that a persume depute etuts with the appluant an a outenal issue or lae or fact.
(Conumsed)
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l study the contention requirements of the rule carefully since the rule provides that a petitioner who fails to satisfy the fequirements will not le admitted as a party.10 C.F.R.12,714(b)(1).
Yl. ORDER Pleadings shall be filed in accordance with the following schedule:
Each petidoner may file no later than March 11 an amended peddon and a supplement to petitions that include a list of contentions that petidoner seeks to have litigated in a hearing.
Licensees may file answers to afnended petidons and supplements to petibon withia
- days after service of the amended petidons or supplements.
C Staff shall file answers to amended peddons and supplements within 13.
dowing their service.
'Ihe plearlings are to te in the hands of the Board and other parties on the date due. The !!oard anticipates that the pafticipants will use overnight express mail or facsimile service to accomplish dmely service.'
'Ihc Board intends to schedule a prehearing conference to take place ap-proximately 10 to 20 days following the NRC Staff's answers. If necessary, J
his showing anut include rufennces to the spect6c puunna af de smhcauan (metuding the opphcant's envirmmental uport and safery repeut) that the peutime dapnes and the suryst'ng seasons for sad dapuis, or,if b petineer behaves that uw opphcauan fails to enntam informauan en a relevara matter as i
nquired by law, Gw idesirwathm d each failure and de sulpeting ressms (tw tne pctitionse's beher. on issues anstng under the Natumal Imvinnmental Putry Act, the poudaner shall rde meenuuns based on
% ambcars's owinavnental nyst. De pedtioner can amend three cnntenuovo te file new contennans if there are data or concluaanse in Gw NRC drafi or Anal envinrunental tnpact statsunas, envunnmental assessman, or any sumlanerna relating theresn, that dttfer signifwantly fasn the data er omchuions in de smhcant's dinuman.
d d l%uunnars and perucipants should nais that Board manbar Dr. waher IL Jordan ahnuld be served at sst w, outer IMve, oak Ridge Tennessee 37830,1 AX Numter fte dw licensing Scard is 0 01) 492 728s.
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l'etitioners ruay respond to answers orally at the prehearing conference on as otherwise provided by floard ortler.
Tile ATOMIC SAFETY AND LICENSING llO ARD Walter 11. Jordan (by 1.W.S.)
ADMINISTRATIVE JUDOE g
Jerry R. Kline ADMINISTRATIVE JUDGE f
Ivan W. Smith, Chairman j
ADMINISTRATIVE LAW JUDGE i
l Hethesda, Maryland liebruary 19,1991 I
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i Cite as 33 NRC 163 (1991)
LBP 915 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judge:
1 0
James P. Gleason, Presiding Officer j
in the Matter of Docket No. 40-08027 MLA (ASLBP No. 91823-01 MLA) -
(Source Material License No. SUB 1010)
]
SEQUOYAH FUELS CORPORATION January 24,1991 t
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MEMORANDUM AND ORDER j
(Requests for Hearing and l'etitions for Leave to Intervene) 1.
REQUESTS FOR llEARING
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A.
llackground I
An application by the Sequoyah Pucts Corporation (hereinafter SIC) for 1
renewal of a source material license, and filed on August 29,1990 (License i
No. SUll.1010), is pending before the U.S. Nuclear Regulatory Commission.
l Requests for an adjudicatory hearing on the matter, pursuant to 10 C.F.R. 62.1205, were received by the Commission: Native Americans for a Clean i
Environment (hereinafter NACE) on September 28,1990 (its request was supplemented on December 20, 1990); Earth Concerns of Oklahoma, Inc.
l (hereinafter ECO) on October 1,1990; and 'Ihe Native Toxics Campaign j
(hereinafter TNTC) on Octobet 8, 1990.8 A communication of September 28, 1990, was also received from the Carlile Area Residents Association (CARA) i d
i in. nouce [twersaer i3,'4990, fro me for a kanns wahar. n.
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8 I-163' I
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k espressing an intent to ble as an intervenor at a subsequent date. 1his memorandum and order considers the remaining peutions of N ACli and TN IC.
In a November 20,1990 filing, the Staff opposed the requests but advised that pursuant to the prmisions of 10 C.F.R. 6 2.1213 it would participate in any hearing granted. Subsequently, af ter reuewing N ACli's supplemental petition filing, the Staf f withdrew its opposition to NACli's request.8 Under the Commission's regulations, this member of the Atomic Safety and 1.icensing floard Panel has tren designated to rule on the requests for hearing and any petitions for leave to intervene and to serve as the Presidmg Ofheer in a hearing if granted. See $$ Fed. Reg. 46,744 (Nov. 6,1990).
II.
NRC Regulations lhe U.S. Nuclear Regulatory Commission has provided informal pnw;cdures
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for adjudicatay hearings in material licensing proceedings. See 10 C.F.R. Part i
2, Subp:irt L. Requests for a hearing in such a proceedmg must desenbe in detail:
(1) The requestor's interest in the proceediag; i
(2) llow the requestor's interest may be affected by the results of the proceeding, including reasons why the requestor should be permitted a hearing with particular reference to factors set forth in 10 C.F.R.
l 6 2.1205(g);
I
- 0) The requestor's area of concern about the licensing activity that is i
the subject matter of the proceeding; and i
(4) The circumstances establishing that the request is tituely filed in accordance with 10 C.F.R, i 2.1205(c).
It is the Presiding Officer's responsibility to determine that petitioners' areas of concern are germane to the subject matter of the proceeding, the petition has teen timely submitted, and judicial standards for standing have been met.
The standards for informal adjudications are similar to those for formal hearing pnicedures and include among other factom (1) The nature of the requestor's right under the Act to be made a party to the proceedmg; (2) The nature and extent of requestor's pnperty, rinancing, or other interest in the proceeding; and (3) The possible effect of any order that may be entered in the proceeding upon the requestor's interest. Sec 10 C.F.R. I 2.1205(g).
Judicii concepts of standing, in addition to being codified in section 2.1205(g), are enumerated in a number of NRC decisions. Sce, e.g., Metropoli.
tan Edimn Co. (1hree Mile Island Nuclear Station, Unit 1), CL1-83 25,18 2 sta!! Rrevue to suppemen':1 Reymt, January 7, W91.
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NRC 327, 332 (19S3). These concepts require a showing that (a) the action
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complained of will cause an injury in fact, and (b) die injury is arguably widun i
de ione of interests protected by statutes covering the proceeding. Niagara Afohawk rowr Corp.. (Nine Mile Ibint Nuclear Station, Unit 2),1.llP-83-45, 18 NRC 213,215 (1983).
1 In de esent an organtiation files a petition for hearing, in order to meet 2
Standing requirements that entity must show injury in fact to its orgardrational interests or the relevant interest of members who authorlic it to act for them, i
Vcrmont Yanlee Nuclear Power Corp. (Vetmont Yankee Nuclear IUwer Station),
j LilP.87 7,25 NRC i16. I18 (1987)).
i C.
Petitions l
1, NACE is an organitation with at least several merntcrs residing within l
10 miles of Oc SIC nuclear licensed operation at Gore, OLlahoma. Affidavits j
furnished by two mernters of NACE, authorizing NACE 10 represent them in de proceeding, cite, inter alla, previous contamination incidents at the plant
+
j and allege threats to their families' health and environment through cont'nued j
operations? lhe alliants cite specific threats to water supplies, fishing, hunting, recreational activities, and travel habits near die facility.
l 1he NACE organization also alleges, intcr alla, prior safety violatkms and j
accidents at the SIC facility including soll and groundwater contamination, the extent of which is currently being reviewed by the NRC Staff, Cidng
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a Novemter 5,1990 NRC Demand for Information served on the Applicant j
concerning scepage of uranium contaminated water NACE questions whether s
l NRC safety and health standards are being met. The organiration also claims j
that the health and ecorumic well being of some of its members are threatened I
by possible contamination of the Atlansas River through the discharge of 4
effluents from the SFC plant.1hc petition also raises a question w hether, in light 4
of alleged past and present safety violations, the best interests of public health and safety require the facility's decommissioning in lieu of a license renewal.
I 2.
Tie TNTC request for a hearing is brief and submits no specific basis for its opposition. Although expressing a disapproval of SFC's lleense renewal, l
Oc peution merely states an intention to file a supplement to its request at a later date, i
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Appbcats Hallant nai&e suhin 2 miles d de $60 plara and Doenneater agyniaunsieJy* la Although Ow comnuasmn has sejncind etnct d steme nqmreness tot stenens in inrunnat adpdnatnry maianals htenti.ca
.I cases, u may sull be e nmenal rector 'The pounan is to be judged by all Ow *ctrewnstanna" in Ow s e,e See $4 I ed, Reg 1772 (1 eh 28,1989) (staiemord or considerstmn).
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1).
11ttision i
t j
in applying NRC procedural requirements to die pending requests for a j
heanng, it is clear that NACE's petition cornplies with regulatory requirernents and 1NTC's does not.
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l Standing i
j NACE purports to be an Indian. controlled and 4taffed organization which aims to raise the consciousness of the public to environmental and nuclear related j
issues, lhe organizadon meets NRC's standards for standing. Allegations that i
soil and water contamination at the facility present violations of NRC health and safety standards is certainly an issue alleging some injury in fact and is within die j
zone of interests protected by statute. NACE obtains standing through affidavits j
submitted by several of its inembers who allege specific threats of contamination
]
as injurious to their lives and property. Not only do these members, who have i
authorized NACE to represent them live in close proximity to tic facility at l
Gore, Oklahoma, but NACE has other memters allegedly living in the general J
area of 0 e plant, and memlets who are citizens of the Cherotec Nation of l
Oklahorna which owns the riverbed of a river flowing within a half mile of the i
facility. The river may receive effluents from the SIC plant and tie health and
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the environmental interests of these individuals allegedly will be affected by contaminating materials in tic river.'
it is clear that NACE has a right through its rnemters' interest to be made j
a party to Oc proceeding, that property, and safety and lwalth interests of its members are involved, and that any order involving the application could have 4
an adverse effect on these memters' interests, In regard to the TNTC petition, no addithmal supporting supplementary I
material has been received, and the organization's request is deficient in other
]
respects in meeting NRC standing requirements. Accordingly, TNTC's request f
for a hearing must te denied.
i 1
i Arras of Concern l
1he rules of practice for informal materials licensing adjudications also call j
for a determination that requests for hearings be timely and that petitioners' l
specified areas of concern be germane,,to the subject matter of the proceeding.
10 C.F.R. 6 2.120$(g).
i
" A staft ejects that NAG has not hem authanied to act m behalt at the Chen&ee Natam appears to k j
rutaduerted, since NAG seoks nely to repreent the envinvunental interests of dose gweteular citizens or the J
Oensee Natum oho are also manhers of NACL i
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l NACE's petition was sutenitted widiin 30 kys of de filing of the tianse j
renewal application and therefore qualitics on die timchness nyuirement. Arc 10 C.F.R. I2.1205(c)(2). T!c matter is moot on Oc petition filed by 'INTC since NRC's standing requirernents have not leen met. supra.
N ACE's petition $ cts fordi a numlet of areas of concern found to be germane j
to de poceedmg and others that are not. Summarited, the relevant allegations i
are that (1) prior accidents, and incidents of soil and water contamination l
under current review by NRC, raise serious question whether health and safety j
standards can be met; (2) present contamination should be evaluated and ternoved prior to any license renewal; (3) the causes of SIC's "por" safety l
and environmental record must be addressed and rer,olved to prevent a repetidon
]
of these inatters; (4) SfC's pogosed changes in its managernent structure may not provide assurance that adequate compilance with safety and envinomental i
j requirements will be provided; (5) the cumulative impact of permitted discharges j
to the alt, water, and land during ten (10) more years of operation may j
Iose an unacceptable risk to the public healdi and environment; and (6) the envininmental and safety irnpacts of the saffinate fertillict program require review.
j
- Ihe Petitioner also incorgrates, among its areas of concern, matters raised 3
by the Staff in its Ostober 5,1990 Order for Modification of License and a 1
Demand for Information dated Novernber 5,1990. Since the Staff has indicated
{
that the inf(rmaticwi sought by the Staff tears directly on license renewal, the relevancy of this nonspecific concern must be presumed at this point.
Not relevant or germane to the proceeding is NACE's request that the Staff hiok at decommissioning rather than operation of Oc facility.
.l s
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II. PETITIONS FOR 1. EAVE TO INTERVENE
]
'Ihe regulations pmvide that if a hearing request is granted, petitions for leave to imervene in the pmceeding must be filed within thirty (30) days of the a
i notice of hearing being published in the federal Register. Petitions to intervene j
must c(unply with the same interest and standing obligations of petitioners for a hearing. Ser 10 C.F.R. 6 2.1205(j). Representatives of interested state, county, municigut governments, or agencies thereof also may request during the same j
30-day period an opgertunity to participate in these informal proceedings. Tlese j
requesters must state their areas of concern with reasonable specificity, An i
opportunity will also be provided in this poceeding for persons not parties to j
it to make limited appearance statements for the purpose of stating deir views j
on the issues.
(
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167 i
I 1
Ill. OltDl'.R liv the reasons stated, it is, this 24th day of January IWl, ORDERiiD:
1.
'lle request for a hearing by the Native Aineticans f(r a Clean linviron.
,f ment is granted; the request by 'Ihe Native Toxies Campaign is denied.
2.
A hearing on the Application of the Sequoyah 1uels Corinvation for renewal of its Source Material License will te held and the time and other details concerning the hearing will be pubbshed at a future date.
3.
Petitions to intervene in this proceeding must te fded within 30 days of this Order's appearance in the federal Register. 'lhe A[plicant aix! Staff will hase ten (10) days to resiend af ter service of any petition.
4 An appeal from this Order may be filed with the Atornic Safety and Licensing ikurd pursuant to the terms of 10 C.F.R. 62.120$(n). Any appeal ruust be filed within ten (10) days of service of this Memorandum and Order and may be supported or opposed by any party by filing a counter 4taternent within fifteen (15) days of service of the appeal brief.
i James P. Gleason. Presiding Officer l
ADMINISTR ATIVi! JUDGli i
liethesda. Maryland l
l l
l 168 l
Cne as 33 NRC 109 (1991)
LDP 916 UNITED STATES OF /sMERICA NUCL E AR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING DOARD Defore Administrative Judges:
Charles Dechhceler, Chairman Dr. James H. Carpenter Dr. Emmoth A. Luebke in the Matter of Docket Non. 50-424 0LA 50425-OLA (ASLBP Ho,90-617 03-OLA)
(Facility Operating Licenses NPF-68 and NPF-81)
GEORGIA POWER COMPANY, et al.
(Vogtle Electric Generating Plant, I
Units 1 and 2)
February 28,1991 4
i i
"Ihe Licensing Board denies an NitC Staff motion for reconsideration of an order posing certain safety questions to the parties prior to the 1kurd's ruling on contentions and the institution of a formal hearing. 'Ihc Board rules that, contrary to the position of the Staff, the Board is authori/cd to ask questions of timt sort, in an effort to resolve issues informally, 5
{
LIC10NSING llOARDS: JURISDICTION l'rior to authorizing a hearing, licensing boards invc authority to ask questions in order to clarify whether seeming areas of concern may be resolved informally, without resort to a formal hearing, i
i 169 i
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HUI.I'N Ol' pR ACI101:: lilSCOYl.RY Although discoscry may not tale place tvior to the grant of a hearing, questions gused by a licensing txurd prior to the ; rant of a hearing in order to (larify areas of concern do not amount to discovery.
Hl't.l:S Ol' pit ACIICl; INI'Olthl Al, pitOCI:l)UHl3 Licensing teards are ergouraged to utillie informal uocedures to tcsolve l
?
issues before them.10 Cf.R. I 2.7%
MEMOlt ANDUM AND OltDElt (Staff Motion for linonsklerationi lly Memonndum and Ordet dated January 22,1991 (unpublished), which confirmed a telephone conference call earlier that same day, the Liecasing Ikurd posed several clarifying questions to Georgia Ibwer Company (Applicants) and die NRC Staff concerning previous filings of those parties. On I ettuary 4,1991, I
the NRC StafI filed a motion for reconsideration of those questions, claiming in essence that we la L jurisdiction to ask them.
In response to our invitadon, the Applicants and Georgians Agalmt Nuclear linergy (GANE) each fded responses. 'Ihe Applicants took the position diat the Staff's mMion was misplaced, that the Ikard's limited questions to clarify the record were reasonable, and they expressed their intent m answer the questions posed to them. Ibr its gurt, G ANE reiterated die importance of the safety issues raised by the proposed bcense araendment.
'lhe questions arose as a result of the ikiard's attempt to understand and resolve several gutentially serious safety issues informally - in order to preclude Vic necessity of a full hearing, with all the additional expense that would entail for all the parties, including Oc Staff. &e 10 C.F.R. 6 2.756. 'Ihe Applicants early had suggested that we attempt to resolve issues in this manner. Ibr reasons set forth telow, we are not withdrawing the questions that we asked. Ilecause we believe that die Applicants can furnish sufficient information to lead to an informal resolution of issues, however, we will permit the Staff to decline to answer any of Oc quesdons propounded to it.
1.
The Applicants are secking to amend die te<hnical specifications of die Vogtle Electric Generating plant, Units 1 and 2, to permit the bypass, in emergency start conditions, of the jacket water high. temperature trip of the emergency diesel generators (EIKis). 'Ihc change, which was sought to minimite the gutential for spurious EDO trips m the emergency start mode, was favored by the NRC Staff but opposed by GANE.
170
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l 1hc amendment application was hied on May 25, 1990. By leuct of the same date (which conhrmed a telephone call cather diat same day), the 1
Staff, without any apparent review of most of the safety questions involved in the amendment, including those underlying the Board's questions, grunted a temporary waiver of the technical specification in question On effect, granting the requested amendment gending its completwn of the paperwork involved, 4
including the requisite Safety Evahtation Report (SER)).1hereafter, the notice of opportunity for hearing and ojportunity to file corntnents on a proposed "no signihcant hat.ards condition" finding was published on June 22,1990 (55 Fed.
Reg. 25,756), and the SER (and formal license amendment) were issued on July I
- 10. 1990 (55 Fed. Reg. 32,337, Aug. 8,1990).
1he Board has not yet completed its review of O ANE's request for a hearing.
Although finding that GANE has standing, we have not yet ruled upon any of their proposed contendons.
2.
The questions posed by the Board relate to whether, if the trip were bygussed (as proposed), an operator would have sufficient time to react to a startup of the EDGs. 1 hey become relevant as a result of the regulatory guide under whic; the Applicants are purporting to act in seeking the license amendment 1hus, in pertinent part, Regulatory Guide 1.9, Rev. 2 (December 1979), Position 7, states that "a trip may be bypassed under accident conditions, provided the operator has sufficient time to react a;propriately to an abnortnal diesel generator unit condillon."
1hc sufhciency of operator response time was not one of the explicit contentions filed by GANE. But through the Board's review of the general safety issues espoused by GANE, as evidenced by the six proposed contentions on which we have not yet ruled, and the authority cited by G ANE, it became apparent that operator response time was a key unanswered question. Technical information subsequendy furnished by GAbE, together with the dacumentathm referenced by them in their initial filings, creates the issue in questkin and demonstrates a serious unresolved safety question as to whether sufficient operator response time (as required by Regulatory Guide 1.9) would exist.
3.
1he Staff's motion treats the Board questions as a form of discovery and not permissible until a formal hearing has tan authorized. On the other hand, the Applicants perceive our questions as permissible inquiry by a Board to clarify whether seeming areas of concern may be resolved informally, without resort to a formal hearing.
1he Applicants are correct. Indeed, our review of the record to date relkyts a paucity of information on operator response time, notwithstanding its importance I t ester dam! May 25.19W. rnen use Anatstani Dmtiv, Regmn 11 Ecact<ra, NRR, NRC to the senne Vice 1% tent Nudcar operaturis. omgie IWr Cnmpany. sub;cct Temporary Wawer or Cumiaance - Vestle I tr4tne onmaung Plard LVIUP). onna 1 and 2 171
to tic regulatory guide criteria under which the Applicants are seeking their amendment. Thus, the applicatkm for arneintmerit, dated May 25, lWO, states only that "[I]nwn the tirne of de high jacket water temperature alartn, the operator will have sufficient dme to react approgriately to abnormal diesel generator condition "8 No further data on this matter are set forth. In granting de temgorary waiver on the same day, the NRC StafI states that "[y]our request includes your analysis and jusnjication as to uhy this gwposed change does not involve a significant hazards consideration" and "[wle have reviewed your request and the supporting analysis and find dem acceptable [ emphasis added)."
No additional analysis of operator response time appears in the SER, issued on July 10, 1990. Only in its January 11, 1991 comments on supplemental information provided by the Applic:mts does the Staff ack!ress this question, and it is to these comments that our quesdons to the Staff were directed.
4, 11e legal authority cited by the Staff in supjust of our asserted lack of jurisdiction is not persuasive. Although discovery may not take place prior to the grant of a hearing, we (ki not regard our questions to be discovery. Radier, Owy are desigred to assist us in determining wirther sufficient informatkm is available to determine whether there is warrant for holding a hearing on any of the matters raised or suggested by CANE or on serious issues that may te raised t y us sua sponte, or alternatively w heller any or all of those matters may te resolved informally.
7hc two decisions relied on by the Staff do not govern the situation presented here. Both I'erry and Waterford4 involved motions to reopen the record, where 5
tie standards are quite different from those applicable here and where a gurty has an extremely heavy burden of demonstrating that a hearing that has teen completed should be reogwned to roccive further issues or information. 10 C.F.R. 5 2.734. In those situations, the Appeal Board had improperly authorhed a hearing to determine whether sufficient information was available to w.trant reopening the record, licie, however, the matter of Oc sufficiency of operator response time is a clear, unresolved safety issue. NRC rules encourage the settlement or compromise of safety issues, where possible.10 C.F.R. 62.759, Moreover, licensing txnrds are also encouraged to utillic informal procedures to resolve 1
issues before them. 10 C.F.R. 9 2.756. liere, we are attempting to resolve informally, at the tchest of the Applicants in particular, a matter that is inherent in the safety questions raised by GANE and which in any event may le of sulficient seriousness to warrant a@ption of an issue sua sponte. Tic apparent failure of the Staff initially to have addressed an issue as central as this to the i
8 laster fnrn cargie l\\mu Company la NRC detr<l May 25.19% I-abmrs 2. at 1.2-1 3
i Ciewla=Jllectnc filmwear.as Co. (Ivary Nuclear her Plant. Unas I sad 2). CtJ r47,23 NRC 233 (1986).
i i lome au faiwr an,Iligk Co (Waiertoed swam lhtnc stauun. Umi 3), C1] $41,23 NRC 10956).
i 172 l
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l approval of the proposed amendment, together with ambiguities in its subsequent leview that we are attempting to clarify, are also factors leading to our atteinpt to resolve the issue informally, in that connection, we are not attempting to control the manner or schedule of the Staff's carrying on its assigned functions but, instead, are attempting to correct what appears to have been an obvious Staff oversight - a rnatter clearly within our authority. Cf. Pennsylumla Power and IJglu Co. (Susquehanna Steam Electric Station, Units 1 and 2), LilP-8Ckl8, 1I NRC 906,9(9 (1980), ag'd, ALAll-612,12 NRC 317 (1980).
Order Rt these reasons, the Staff's ruotion for reconsideration is denied. Ilowever, consistent with its lack of adequate participation on this issue, we will permit the Stali to decline to answer the questions posed to 11.8 IT IS SO ORDERED.
FOR Tile ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Dethesda. Maryland Fettuary 28,1991 Sn. sarr.ixmw.an u iwnon wnuns. i.y no 1.u oan ow 4.= on.wh tu mim. m q w mia
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