DRC-2001-001181 - 0901a06880ef6a0e

NUCLEAR REGULATORY COMMISSION
ISSUANCES
OPINIONS AND DECISIONS OF THE
NUCLEAR REGULATORY COMMISSION
WITH SELECTED ORDERS
July 1, 2001 — December 31, 2001
Volume 54
Pages 1 – 539
Prepared by the
Office of the Chief Information Officer
U.S. Nuclear Regulatory Commission
Washington, DC 20555–0001
(301–415–6844)
COMMISSIONERS
Richard A. Meserve, Chairman
Greta J. Dicus
Nils J. Diaz*
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
William D. Travers, Executive Director for Operations
Karen D. Cyr, General Counsel
G. Paul Bollwerk III, Chief Administrative Judge,
Atomic Safety & Licensing Board Panel
*Mr. Diaz began serving a second term as Commissioner on October 4, 2001.
ii
ATOMIC SAFETY AND LICENSING BOARD PANEL
G. Paul Bollwerk III,*Chief Administrative Judge
Vacant,*Deputy Chief Administrative Judge (Executive)
Vacant,*Deputy Chief Administrative Judge (Technical)
Members
Dr. George C. Anderson Dr. David Hetrick Thomas D. Murphy
Charles Bechhoefer* Dr. Frank F. Hooper Dr. Harry Rein
Dr. Robin Brett Dr. Charles N. Kelber* Alan S. Rosenthal
Dr. Richard F. Cole* Dr. Jerry R. Kline Lester S. Rubenstein
Dr. Thomas S. Elleman Dr. Peter S. Lam* Dr. David R. Schink
Michael C. Farrar* Dr. James C. Lamb III Ivan W. Smith
Dr. Harry Foreman Thomas S. Moore* Ann M. Young*
*Permanent panel members
iii
PREFACE
This is the fifty-fourth volume of issuances (1 – 539) of the Nuclear Regulatory
Commission and its Atomic Safety and Licensing Boards, Administrative
Law Judges, and Office Directors. It covers the period from July 1, 2001, to
December 31, 2001.
Atomic Safety and Licensing Boards are authorized by Section 191 of the
Atomic Energy Act of 1954. These Boards, comprised of three members conduct
adjudicatory hearings on applications to construct and operate nuclear power
plants and related facilities and issue initial decisions which, subject to internal
review and appellate procedures, become the final Commission action with
respect to those applications. Boards are drawn from the Atomic Safety and
Licensing Board Panel, comprised of lawyers, nuclear physicists and engineers,
environmentalists, chemists, and economists. The Atomic Energy Commission
first established Licensing Boards in 1962 and the Panel in 1967.
Beginning in 1969, the Atomic Energy Commission authorized Atomic Safety
and Licensing Appeal Boards to exercise the authority and perform the review
functions which would otherwise have been exercised and performed by the
Commission in facility licensing proceedings. In 1972, that Commission created
an Appeal Panel, from which are drawn the Appeal Boards assigned to each
licensing proceeding. The functions performed by both Appeal Boards and
Licensing Boards were transferred to the Nuclear Regulatory Commission by the
EnergyReorganizationActof1974. AppealBoardsrepresentthefinallevelinthe
administrative adjudicatory process to which parties may appeal. Parties,
however, are permitted to seek discretionaryCommission review of certain board
rulings. The Commission also may decide to review, on its own motion, various
decisions or actions of Appeal Boards.
OnJune29,1990,however,theCommissionvotedtoabolishtheAtomicSafety
and Licensing Appeal Panel, and the Panel ceased to exist as of June 30, 1991. In
the future, the Commission itself will review Licensing Board and other
adjudicatory decisions, as a matter of discretion.See 56 Fed. 29 & 403 (1991).
The Commission also has Administrative Law Judges appointed pursuant to
the Administrative Procedure Act, who preside over proceedings as directed by
the Commission.
The hardbound edition of the Nuclear Regulatory Commission Issuances is a
final compilation of the monthly issuances. It includes all of the legal precedents
for the agency within a six-month period. Any opinions, decisions, denials,
memoranda and orders of the Commission inadvertently omitted from the
monthly softbounds and any corrections submitted by the NRC legal staff to the
printed softbound issuances are contained in the hardbound edition. Cross
references in the text and indexes are to the NRCI page numbers which are the
same as the page numbers in this publication.
Issuances are referred to as follows: Commission—CLI, Atomic Safety and
Licensing Boards—LBP, Administrative Law Judges—ALJ, Directors’ Deci-
sions—DD, and Decisions on Petitions for Rulemaking—DPRM.
The summaries and headnotes preceding the opinions reported herein are not
to be deemed a part of those opinions or to have any independent legal
significance.
v
CONTENTS
Issuances of the Nuclear Regulatory Commission
CONNECTICUT YANKEE ATOMIC POWER COMPANY
(Haddam Neck Plant)
Docket 50-213-OLA
Memorandum and Order, CLI-01-25, December 5, 2001 . . . . . . . . . . . . . 368
CONSOLIDATED EDISON COMPANY OF NEW YORK and
ENTERGY NUCLEAR INDIAN POINT 2 LLC, and
ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point, Units 1 and 2)
Dockets 50-003-LT, 50-247-LT (consolidated)
Memorandum and Order, CLI-01-19, August 22, 2001 . . . . . . . . . . . . . . . 109
DOMINION NUCLEAR CONNECTICUT, INC.
(Millstone Nuclear Power Station,Units 2 and 3)
Dockets 50-336-LA, 50-423-LA
Memorandum and Order, CLI-01-24, December 5, 2001 . . . . . . . . . . . . . 349
DUKE COGEMA STONE & WEBSTER
(Savannah River Mixed Oxide Fuel Fabrication Facility)
Docket 070-03098-ML
Memorandum and Order, CLI-01-28, December 28, 2001 . . . . . . . . . . . . 393
DUKE ENERGY CORPORATION
(McGuire Nuclear Station, Units 1 and 2;
Catawba Nuclear Station, Units 1 and 2)
Dockets 50-369, 50-370, 50-413, 50-414
Order, CLI-01-20, October 4, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Memorandum and Order, CLI-01-27, December 28, 2001 . . . . . . . . . . . . 385
FLORIDA POWER & LIGHT COMPANY
(Turkey Point Nuclear Generating Plant, Units 3 and 4)
Dockets 50-250-LR, 50-251-LR
Memorandum and Order, CLI-01-17, July 19, 2001 . . . . . . . . . . . . . . . . . 3
INTERNATIONAL URANIUM (USA) CORPORATION
(White Mesa Uranium Mill)
Docket 40-8681-MLA-8
Memorandum and Order, CLI-01-18, July 30, 2001 . . . . . . . . . . . . . . . . . 27
Docket 40-8681-MLA-9
Memorandum and Order, CLI-01-21, November 14, 2001 . . . . . . . . . . . . 247
vii
POWER AUTHORITY OF THE STATE OF NEW YORK and
ENTERGY NUCLEAR FITZPATRICK LLC,
ENTERGY NUCLEAR INDIAN POINT 3 LLC, and
ENTERGY NUCLEAR OPERATIONS, INC.
(James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3)
Dockets 50-333-LT, 50-286-LT (consolidated)
Memorandum and Order, CLI-01-16, July 19, 2001 . . . . . . . . . . . . . . . . . 1
PRIVATE FUEL STORAGE, L.L.C.
(IndependentSpent Fuel Storage Installation)
Docket 72-22-ISFSI
Memorandum and Order, CLI-01-22, November 14, 2001 . . . . . . . . . . . . 255
Memorandum and Order, CLI-01-26, December 28, 2001 . . . . . . . . . . . . 376
U.S. ENRICHMENT CORPORATION
(Paducah, Kentucky Gaseous Diffusion Plant)
Docket No. 70-7001 (Certificate GDP-1)
Memorandum and Order, CLI-01-23, November 14, 2001 . . . . . . . . . . . . 267
Issuances of the Atomic Safety and Licensing Boards
CONNECTICUT YANKEE ATOMIC POWER COMPANY
(Haddam Neck Plant)
Docket 50-213-OLA
Memorandum and Order, LBP-01-21, July 9, 2001 . . . . . . . . . . . . . . . . . . 33
Memorandum and Order, LBP-01-25, September 17, 2001. . . . . . . . . . . . 177
Order, LBP-01-36, December 10, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . 474
CONSOLIDATED EDISON COMPANY OF NEW YORK and
ENTERGY NUCLEAR INDIAN POINT 2 LLC, and
ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point, Units 1 and 2)
Dockets 50-003-LT, 50-247-LT (consolidated)
Order, LBP-01-28, October 4, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
DOMINION NUCLEAR CONNECTICUT, INC.
(Millstone Nuclear Power Station, Unit 3)
Docket 50-423-LA-3
Memorandum and Order, LBP-01-29, October 5, 2001 . . . . . . . . . . . . . . . 223
DUKE COGEMA STONE & WEBSTER
(Savannah River Mixed Oxide Fuel Fabrication Facility)
Docket 070-03098-ML
Memorandum and Order, LBP-01-35, December 6, 2001 . . . . . . . . . . . . . 403
viii
DUKE ENERGY CORPORATION
(McGuire Nuclear Station, Units 1 and 2;
Catawba Nuclear Station, Units 1 and 2)
Dockets 50-369-LR, 50-370-LR, 50-413-LR, 50-414-LR
Memorandum and Order, LBP-01-31, October 31, 2001 . . . . . . . . . . . . . . 242
MAINE YANKEE ATOMIC POWER COMPANY
(Maine Yankee Atomic Power Station)
Docket 50-309-OLA
Order, LBP-01-27, October 2, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
MOAB MILL RECLAMATION TRUST
(formerly ATLAS CORPORATION)
(Moab, Utah Facility)
Dockets 40-3453-MLA-4,40-3453-MLA-5
Memorandum and Order, LBP-01-33, November 15, 2001 . . . . . . . . . . . . 291
PRIVATE FUEL STORAGE, L.L.C.
(IndependentSpent Fuel Storage Installation)
Docket 72-22-ISFSI
Memorandum and Order, LBP-01-22, August 1, 2001 . . . . . . . . . . . . . . . 155
Memorandum and Order, LBP-01-23, August 1, 2001 . . . . . . . . . . . . . . . 163
Memorandum and Order, LBP-01-24, August 21, 2001 . . . . . . . . . . . . . . 174
Memorandum and Order, LBP-01-26, September 20, 2001. . . . . . . . . . . . 199
Memorandum and Order, LBP-01-30, October 30, 2001 . . . . . . . . . . . . . . 231
Memorandum and Order, LBP-01-34, November 30, 2001 . . . . . . . . . . . . 293
Memorandum and Order, LBP-01-37, December 13, 2001 . . . . . . . . . . . . 476
Memorandum and Order, LBP-01-38, December 19, 2001 . . . . . . . . . . . . 490
Memorandum and Order, LBP-01-39, December 26, 2001 . . . . . . . . . . . . 497
Memorandum and Order, LBP-01-40, December 28, 2001 . . . . . . . . . . . . 526
U.S. ARMY
(Jefferson Proving Ground Site)
Docket 40-8838-MLA
Memorandum and Order, LBP-01-32, November 7, 2001 . . . . . . . . . . . . . 283
Issuances of Directors’ Decisions
ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point, Unit 2)
Docket 50-247
Director’s Decision, DD-01-5, November 26, 2001. . . . . . . . . . . . . . . . . . 340
ix
ENTERGY NUCLEAR OPERATIONS, INC. and
ENTERGY NUCLEAR INDIAN POINT 2 LLC
(Indian Point, Unit 2)
Docket 50-247
Director’s Decision, DD-01-4, November 21, 2001. . . . . . . . . . . . . . . . . . 326
U.S. ENRICHMENT CORPORATION
(Paducah, Kentucky Gaseous Diffusion Plant)
Docket No. 70-7001
Director’s Decision, DD-01-3, June 14, 2001 . . . . . . . . . . . . . . . . . . . . . . 305
Indexes
CaseNameIndex ...............................................I-1
LegalCitationsIndex............................................I-5
Cases.......................................................I-5
Regulations.................................................I-27
Statutes ....................................................I-45
Others.....................................................I-49
SubjectIndex .................................................I-51
Facility Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-65
x
Cite as 54 NRC 1 (2001)CLI-01-16
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket Nos. 50-333-LT
50-286-LT
(consolidated)
POWER AUTHORITY OF THE
STATE OF NEW YORK and
ENTERGY NUCLEAR FITZPATRICK LLC,
ENTERGY NUCLEAR INDIAN
POINT 3 LLC, and
ENTERGY NUCLEAR OPERATIONS, INC.
(James A. FitzPatrick Nuclear Power Plant;
Indian Point, Unit 3) July 19, 2001
MEMORANDUM AND ORDER
On June 21, 2001, the Commission issued CLI-01-14,53 NRC 488, approving
the transfer of both ownership and operation of the FitzPatrick and Indian Point 3
nuclearpowerplantsfromthePowerAuthorityoftheStateofNewYorktovarious
subsidiaries of Entergy Corporation. In CLI-01-14, we rejected all arguments of
Intervenor Citizens Awareness Network concerning the adequacy of Entergy’s
financialqualificationsanddecommissioningplan. Wewereconcerned,however,
that we might have inadvertently included in CLI-01-14 proprietary information
the public release of which might be harmfulto Entergyor PASNY. We therefore
withheld the order from public release so that they could review CLI-01-14 and
advise us of any information they considered confidential.See CLI-01-14, 53
NRC at 561.
1
Today, we release that order with appropriate redactions on pages 17, 25, 26,
and31oftheslipopinion(53NRCat518,523,and527). Eachredactionaddresses
a proprietary concern raised by Entergy. We further direct those parties who
received the proprietaryversion of CLI-01-14not to publicly disclose, discuss, or
otherwise make use of the redacted material.
IT IS SO ORDERED.
For the Commission
ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 19th day of July 2001.
2
Cite as 54 NRC 3 (2001)CLI-01-17
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket Nos. 50-250-LR
50-251-LR
FLORIDA POWER & LIGHT
COMPANY
(Turkey Point Nuclear Generating
Plant, Units 3 and 4) July 19, 2001
The Commission reviews and affirms an Atomic Safety and Licensing Board
decision that denied a request for hearing and leave to intervene in a license
renewal proceeding.
LICENSE RENEWAL PROCEEDINGS: SCOPE (NRC SAFETY
REVIEW)
Part 54 centers license renewal reviews on the most significant overall safety
concern posed by extended reactor operation — the detrimental effects of aging.
The NRC’s license renewal review focuses upon those potential detrimental
effects of aging that are not routinely addressed by ongoing regulatory oversight
programs.LicenserenewalreviewsarenotintendedtoduplicatetheCommission’s
ongoing review of operating reactors.
LICENSE RENEWAL PROCEEDINGS: SCOPE (NRC SAFETY
REVIEW)
Each nuclear power plant has a ‘‘current licensing basis,’’ a term of art
comprehending the various Commission requirements applicable to a specific
3
plant that are in effect at the time of the license renewal application. The current
licensing basis represents an evolving set of requirements and commitments
for a specific plant that are modified as necessary over the life of a plant to
ensure continuation of an adequate level of safety. It is effectively addressed
and maintained by ongoing agency oversight, review, and enforcement. In
establishing its license renewal process, the Commission did not believe it
necessary or appropriate to throw open the full gamut of provisions in a plant’s
current licensing basis to re-analysis during the license renewal review.
LICENSE RENEWAL PROCEEDINGS: SCOPE (NEPA REVIEW)
Under 10 C.F.R. Part 51, the NRC completes an environmental review for
license renewal, focusing upon the potential impacts of an additional 20 years of
nuclear power plant operation. Part 51 divides the environmental requirements
for license renewal into generic and plant-specific components.
LICENSE RENEWAL PROCEEDINGS: SCOPE (NEPA REVIEW)
Part 51 refers to generic issues, applicable to all existing nuclear power plants,
as Category 1 issues. Because Category 1 issues involve environmental effects
that are essentially similar for all plants, they need not be assessed repeatedly
on a site-specific basis, plant-by-plant. However, there must be a plant-specific
review of all environmental issues for which the Commission was not able to
make environmental findings on a generic basis. Our rules refer to such issues as
Category 2 issues.
LICENSE RENEWAL PROCEEDINGS: SCOPE (NEPA REVIEW)
Part 51’s use of generic findings that address impacts common to all nuclear
powerplants,supplementedbya narrowerreviewof plant-specificissues, reflects
a commonplace NEPA approach.
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
The Commission should not be expected to sift unaided through earlier briefs
filed before the Licensing Board in order to piece together and discern the
Intervenors’ particular concerns or the grounds for their claims.
4
MEMORANDUM AND ORDER
I. INTRODUCTION
This case arises out of an application by the Florida Power & Light Company
(‘‘FPL’’ or ‘‘the Applicant’’) to renew for an additional 20-year period the
operating licenses for its two Turkey Point nuclear plant units. Today we review
an Atomic Safety and Licensing Board Memorandum and Order, LBP-01-6, 53
NRC 138 (2001), that denied two petitions for leave to intervene and requests for
hearing in the Turkey Point license renewal proceeding. The Licensing Board
foundthatbothPetitionershadstandingto intervenebutthatneitherhadsubmitted
an admissible contention. The Board therefore denied their requests for hearing.
Pursuant to 10 C.F.R. §2.714a, one of the Petitioners, Mr. Mark P. Oncavage,
has appealed the Board’s decision. FPL and the NRC Staff support the Board’s
decision. We affirm.
II. BACKGROUND
On September11, 2000,FPL filed a license renewalapplicationforthe Turkey
Point Nuclear Plant, Units 3 and 4, located in Miami-Dade County, Florida. The
current operating licenses for these units expire on July 19, 2012, and April 10,
2013, respectively. License renewal would authorize an additional 20 years of
operation.
The NRC Staff published a notice of an opportunityfor hearing in the Federal
Register on October 12, 2000. 65 Fed. Reg. 60,693 (2000). In a letter dated
October 24, 2000, Mr. Oncavage stated that he resides approximately 15 miles
from the Turkey Point facility and wished to intervene in the renewal proceeding.
Along with his letter, Mr. Oncavage submitted seven contentions challenging
the license renewal. The Commission referred Mr. Oncavage’s petition to the
LicensingBoard,andexpresslyoutlinedthescopeoflicenserenewalproceedings.
See CLI-00-23,52 NRC 327 (2000);see also 10 C.F.R. §54.4 (outliningscope of
safety review); 10 C.F.R. §51.95(c) (outlining scope of environmental review).
The Licensing Board subsequently issued its own order, directing the
Petitioners to ‘‘take care to ensure’’ that each of their proffered contentions was
adequately supported and fell ‘‘within the limited scope of this [license renewal]
proceeding.’’See Memorandum and Order at 3 (Dec. 1, 2000) (unpublished).
The Board advised Mr. Oncavage that he still had the opportunity to amend his
contentions, and that directly following each separately numbered contention, he
needed to ‘‘set forth the basis or bases for that contention.’’Id.
Mr. Oncavage filed a revised set of contentions on December 22, 2000. His
new submission contained only two contentions. The first alleged that aquatic
5
resources of Biscayne National Park will become contaminated with radioactive
material, chemical wastes, and herbicides during the license renewal term, and
consequently will endanger those who consume aquatic food from the area. The
second alleged that at the Turkey Point plant there are ‘‘severe and unusual
challenges to the safe storage of high level radioactive spent fuel whether in
spent fuel pools or in dry cask storage.’’See Amended Contentions of Mark P.
Oncavage (Dec. 22, 2000) (‘‘Amended Petition’’) at 2. Mr. Oncavage pointed to
the possibility of a catastrophic radiological accident involving spent fuel. His
contentionreferredin particular to risks posed by aircraft crashes, hurricanes,and
a possible terrorist attack by the Cuban Air Force.Id.at 3.
1
In LBP-01-6, the Licensing Board rejected Mr. Oncavage’s request for
intervention, and found both of his contentions inadmissible. Both contentions,
the Board ruled, raised issues that fall beyond the scope of license renewal
reviews and renewal proceedings.See generally 53 NRC at 163-66. The Board
viewed Mr. Oncavage’s contentions as impermissible challenges to established
NRC regulations on license renewal.Id.
In a short brief filed on March 19, 2001, Mr. Oncavage appealed the
Board’s decision. He claims the Board erroneously found his contentions
inadmissible.See generally Petitioner Mark P. Oncavage’s Notice of Appeal
(‘‘Appeal Brief’’) (Mar. 21, 2001). He also claims that the decision violates the
National Environmental Policy Act (‘‘NEPA’’).See id.at 2. Both the NRC Staff
and FPL support the Board’s decision. We affirm the Board’s decision, for the
reasons given by the Board itself and the reasons we give below.
III. OVERVIEW OF NRC LICENSE RENEWAL RULES
Before we address Mr. Oncavage’s specific arguments on appeal, we begin
with a general overview of the NRC’s license renewal rules. At the heart of
the Licensing Board’s decision is its reasoning that Mr. Oncavage’s contentions
fall beyond the scope of license renewal proceedings. We take this opportunity
to outline, in some detail, what safety and environmental issues fall inside (and
outside)our license renewalrules, andwhy. Our goalis notonlyto provideuseful
background for today’s decision, but also to give helpful guidance for future
license renewal adjudications.
Two sets of regulatory requirements govern the agency’s review of license
renewalapplications. Pursuantto10C.F.R. Part54,the NRCconductsa technical
review of the license renewal application to ensure that public health and safety
requirements are satisfied. Pursuant to 10 C.F.R. Part 51, the NRC completes an
1 Later in the proceeding, Mr. Oncavage dropped the Cuban Air Force attack claim.SeeTranscript of Proceedings
(Jan.18, 2001) (‘‘Transcript’’) at 43.
6
environmental review for license renewal, focusing upon the potential impacts
of an additional 20 years of nuclear power plant operation. Both sets of agency
regulations derive from years of extensive technical study, review, interagency
input, and public comment. Below, we discuss Parts 54 and 51 separately.
A. Public Health and Safety Review Under Part 54
Initial NRC reactor operating licenses last 40 years, and may be renewed for
termsofupto20years.See 42 U.S.C. §2133; 10 C.F.R. §§50.51, 54.31. In
anticipationofpotentiallicenserenewalapplications,theNRC beganin the 1980s
a program to develop license renewal regulations and associated guidance. We
sought to develop a process that would be both efficient, avoiding duplicative
assessments where possible, and effective, allowing the NRC Staff to focus its
resourcesonthe mostsignificantsafety concernsatissue duringthe renewalterm.
The issues and concerns involved in an extended 20 years of operation are not
identical to the issues reviewed when a reactor facility is first built and licensed.
For example, many safety questions related to plant aging will become important
only during the extended renewal term.
Incontrast, other safetyissues were thoroughlyreviewedwhen the facility was
first licensed, and now are routinely monitored and assessed by ongoing agency
oversightandagency-mandatedlicensee programs. To requirea fullreassessment
of these issues at the license renewal stage, the Commission found, would be
both unnecessary and wasteful. Accordingly, the NRC’s license renewal review
focuses upon those potential detrimental effects of aging that are not routinely
addressed by ongoing regulatory oversight programs. License renewal reviews
are not intended to ‘‘duplicate the Commission’s ongoing review of operating
reactors.’’See Final Rule, ‘‘Nuclear Power Plant License Renewal,’’ 56 Fed.
Reg. 64,943, 64,946 (Dec. 13, 1991).
1. The Detrimental Effects of Aging and Related Time-Limited Issues
Part 54 centers the license renewal reviews on the most significant overall
safety concern posed by extended reactor operation — the detrimental effects of
aging. By its very nature, the aging of materials ‘‘becomes important principally
during the period of extended operation beyond the initial 40-year license term,’’
particularly since the design of some componentsmay have been based explicitly
upon an assumed service life of 40 years.See id.;see also Final Rule, ‘‘Nuclear
Power Plant License Renewal; Revisions,’’ 60 Fed. Reg. 22,461, 22,479 (May 8,
1995). Adverse aging effects can result from metal fatigue, erosion, corrosion,
thermal and radiation embrittlement, microbiologically induced effects, creep,
and shrinkage. Such age-related degradation can affect a number of reactor and
7
auxiliarysystems,includingthereactorvessel,thereactorcoolantsystempressure
boundary, steam generators, electrical cables, the pressurizer, heat exchangers,
and the spent fuel pool. Indeed, a host of individual components and structures
are at issue.See 10 C.F.R. §54.21(a)(1)(i). Left unmitigated, the effects of aging
can overstress equipment, unacceptably reduce safety margins, and lead to the
loss of required plant functions, including the capability to shut down the reactor
and maintain it in a shutdown condition, and to otherwise prevent or mitigate the
consequences of accidents with a potential for offsite exposures.
Accordingly, Part 54 requires renewal applicants to demonstrate how their
programs will be effective in managing the effects of aging during the proposed
period of extended operation.See generally 10 C.F.R. §54.21(a). This is a
detailed assessment, conducted at ‘‘a component and structure level,’’ rather
than at a more generalized ‘‘system level.’’ 60 Fed. Reg. at 22,462. License
renewal applicants must demonstrate that all ‘‘important systems, structures, and
components will continue to perform their intended function in the period of
extended operation.’’Id.at 22,463. Applicants must identify any additional
actions, i.e., maintenance, replacement of parts, etc., that will need to be taken
to manage adequately the detrimental effects of aging.Id.Adverse aging effects
generally are gradual and thus can be detected by programs that ensure sufficient
inspections and testing.Id.at 22,475.
In addition, some safety reviews or analyses made during the original term of
the license may have been based upon a particular time period, such as, perhaps,
an assumed service life of a specific number of years or some period of operation
defined by the original license term, i.e., 40 years. Before the NRC will grant any
license renewal application, an applicant must reassess these ‘‘time-limited aging
analyses,’’and(1)showthattheearlieranalysiswill remainvalidfortheextended
operation period; or (2) modify and extend the analysis to apply to a longer term,
such as 60 years; or (3) otherwise demonstrate that the effects of aging will be
adequately managed in the renewal term.See 60 Fed. Reg. at 22,480; 10 C.F.R.
§§54.21(c), 54.29(a)(2).
2. The NRC Regulatory Process and the Current Licensing Basis
The Commission has the ongoing responsibility to oversee the safety and
security of operating nuclear reactors.Thus, the NRC maintains an aggressive
and ongoing program to oversee plant operation. For license renewal, the
Commission found that it would be unnecessary to include in our review all
those issues already monitored, reviewed, and commonly resolved as needed by
ongoing regulatory oversight.
When the Commission issues an initial license, it makes a ‘‘comprehensive
determinationthat the design, construction,and proposed operationof the facility
satisfied the Commission’s requirements and provided reasonable assurance of
8
adequate protection to the public health and safety and common defense and
security.’’ 56 Fed. Reg. at 64,947. Each nuclear power plant also has a
‘‘current licensing basis,’’ a term of art comprehending the various Commission
requirements applicable to a specific plant that are in effect at the time of the
license renewal application. The current licensing basis consists of the license
requirements, including license conditions and technical specifications. It also
includes the plant-specific design basis information documented in the plant’s
most recent Final Safety Analysis Report, and any orders, exemptions, and
licensee commitments that are part of the docket for the plant’s license, i.e.,
responses to NRC bulletins, generic letters, and enforcement actions, and other
licensee commitments documented in NRC safety evaluations or licensee event
reports.See 10 C.F.R. §54.3. The currentlicensing basis additionally includes all
of the regulatory requirements found in Parts 2, 19, 20, 21, 30, 40, 50, 55, 72, 73,
and 100 with which the particular applicant must comply.Id.
In establishing its license renewal process, the Commission did not believe
it necessary or appropriate to throw open the full gamut of provisions in a
plant’s current licensing basis to re-analysis during the license renewal review.
The current licensing basis represents an ‘‘evolving set of requirements and
commitments for a specific plant that are modified as necessary over the life of
a plant to ensure continuation of an adequate level of safety.’’ 60 Fed. Reg. at
22,473. It is effectively addressed and maintained by ongoing agency oversight,
review, and enforcement.
Just as these oversight programs help ensure compliance with the current
licensing basis during the original license term, they likewise can reasonably be
expected to fulfill this function during the renewal term. In short, the regulatory
process commonly is ‘‘the means by which the Commission continually assesses
the adequacy of and compliance with’’ the current licensing basis. 60 Fed. Reg.
at 22,473.
For an example of how the ongoing regulatory process works to maintain
safety, we can look at the issue of emergency planning. The Commission
has various regulations establishing standards for emergency plans.See 10
C.F.R. §§50.47, 50.54(s)-(u); Appendix E to Part 50. These requirements are
independent of license renewal and will continue to apply during the renewal
term. They include provisions to ensure that the licensee’s emergency plan
remains adequateand continuesto meet sixteen performanceobjectives. Through
mandated periodic reviews and emergency drills, ‘‘the Commission ensures that
existing plans are adequate throughout the life of any plant even in the face of
changing demographics, and other site-related factors. . . . [D]rills, performance
criteria, and independent evaluations provide a process to ensure continued
adequacy of emergency preparedness.’’ 56 Fed. Reg. at 64,966. Emergency
planning,therefore,is oneofthesafety issuesthatneednotbe re-examinedwithin
the context of license renewal.
9
Issues like emergency planning — which already are the focus of ongoing
regulatoryprocesses— donotcomewithin theNRC’s safetyreviewat thelicense
renewal stage:
The Commission cannot conclude that its regulation of operating reactors is ‘‘perfect’’ and
cannot be improved, that all safety issues applicable to all plants have been resolved, or that
all plants have been and at all times in the future will operate in perfect compliance with
all NRC requirements. However, based upon its review of the regulatory programs in this
rulemaking, the Commission does conclude that (a) its program of oversight is sufficiently
broad and rigorous to establish that the added discipline of a formal license renewal review
against the full range of current safety requirements would not add significantly to safety,
and (b) such a review is not needed to ensure that continued operation during the period of
extended operation is not inimical to the public health and safety.
Id.at 64,945.
In sum, our license renewal safety review seeks to mitigate the ‘‘detrimental
effects of aging resulting from operationbeyondthe initial license term.’’ 60 Fed.
Reg. at 22,463. To that effect, our rules ‘‘focus[] the renewal review on plant
systems, structures, and components for which current [regulatory] activities and
requirements may not be sufficient to manage the effects of aging in the period of
extended operation.’’Id.at 22,469 (emphasis added).
2 Adjudicatory hearings in
individual license renewal proceedingswill share the same scope of issues as our
NRC Staff review, for our hearing process (like our Staff’s review) necessarily
examines only the questions our safety rules make pertinent.
Our rules nonetheless recognize and provide for the possibility of exceptional
situations. On a case-by-case basis, if warranted by ‘‘special circumstances,’’ the
Commissionmay waive applicationof oneor moreofour license renewalrulesor
otherwise make an exception for the proceeding at issue.See 10 C.F.R. §2.758;
3
56 Fed. Reg. at 64,961. Absent such a Commission ruling under section 2.758,
however, ‘‘the scope of Commission review determines the scope of admissible
contentions in a renewal hearing.’’ 60 Fed. Reg. at 22,482 n.2. It bears noting,
additionally, that any change to a plant’s licensing basis that requires a license
amendment — i.e., a change in the technical specifications — will itself offer an
opportunityforhearingin accordancewith section 189of the Atomic EnergyAct.
2 Some aging-related issues are adequately dealt with by regulatory processes and need not be subject to further
review during the license renewal proceeding. An example might be those structures and components that already
must be replaced at mandated, specified time periods.
3 The key passage in section 2.758 provides: ‘‘The sole ground for petition for waiver or exception shall be that
special circumstances with respect to the subject matter of the particular proceeding are such that the application
of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was
adopted.’’ 10 C.F.R. §2.758(b).
10
B. Environmental Review Under Part 51
The Commission in 1996 amended its environmental protection requirements
in Part 51 to establish environmental review requirements for license renewal
applicants. As with our Part 54 health and safety review, the Commission sought
to develop license renewal requirements in Part 51 that were both efficient and
more effectively focused. Part 51 divides the environmental requirements for
license renewal into generic and plant-specific components. Underlying Part 51
is an extensive, systematic study of the potential environmental consequences
of operating a nuclear power plant for an additional 20 years.See NUREG-
1437,‘‘GenericEnvironmentalImpactStatementforLicenseRenewalofNuclear
Plants,’’ Final Report, Vol. 1 (‘‘GEIS’’) (May 1996).
As part of its study, the Commission evaluated environmental and safety data
on the operating experience of all the light-water nuclear power reactors licensed
to operate in 1991.See GEIS at 1-4;see also Final Rule, ‘‘EnvironmentalReview
for Renewal of Nuclear Power Plant Operating Licenses,’’ 61 Fed. Reg. 28,467,
28,468(June5,1996).NumerousinterestgroupsparticipatedintheCommission’s
study through public workshops and by written public comments.See GEIS at
1-4. The resulting GEIS identified a number of possible environmental impacts,
genericand plant-specific,that couldresult froman additional20 yearsof nuclear
power plant operation.
On many issues, the NRC found that it could draw generic conclusions
applicable to all existing nuclear power plants, or to a specific subgroupof plants.
Part 51 refers to these generic issues as ‘‘Category 1’’ issues.See 10 C.F.R. Part
51, Subpart A, Appendix B. Because Category 1 issues involve environmental
effects that are essentially similar for all plants, they need not be assessed
repeatedly on a site-specific basis, plant-by-plant. Accordingly, under Part 51,
license renewal applicants need not submit in their site-specific Environmental
Reportsananalysisof Category1 issues.See 10C.F.R. §51.53(c)(3)(i).For those
issues, the applicant instead may reference and adopt the generic environmental
impact findings codified in Table B-1, Appendix B to Part 51.
Applicantsmust,however,provideaplant-specificreviewofallenvironmental
issues for which the Commission was not able to make environmental findings
on a generic basis. Our rules refer to these as ‘‘Category 2’’ issues.See 10
C.F.R. Part 51, Subpart A, Appendix B. In other words, if the severity of an
environmental impact might differ significantly from one plant to another, or, if
additional plant-specific measures to mitigate the impact should be considered,
then the applicant must provide a plant-specific analysis of the environmental
impact. Inaddition,evenwheretheGEIShasfoundthataparticularimpactapplies
generically (Category 1), the applicant must still provide additional analysis in
its Environmental Report if new and significant information may bear on the
applicability of the Category 1 finding at its particular plant.
11
An example of an issue Part 51 declares ‘‘generic’’ (Category 1), and not
subject to plant-specific analysis, is the noise impact from operation expected
during the license renewal term. The principal noise sources (cooling towers
and transformers) will not change appreciably during extended operation. Noise
impacts generally have been small at all plants, and thus no site-specific analyses
are necessary for license renewal. Part 51 declares various other environmental
issues ‘‘plant specific’’ (Category 2). For example, the impact of extended
operationon endangeredorthreatenedspecies variesfromonelocation to another
and this fits within Category 2. It requires a plant-specific analysis.
There are several aspects to the NRC Staff’s environmental review. Initially,
the Staff will independentlyassess the adequacyof the applicant’sEnvironmental
Report. The Staff sets out its conclusions in a draft Supplemental Environmental
Impact Statement (‘‘SEIS’’), which is a site-specific supplement to the GEIS;
the Staff then seeks public comment.See 10 C.F.R. §§51.70, 51.73-.74. The
final SEIS will adopt any applicable Category 1 environmental impact findings
from the GEIS.See 10 C.F.R. §§51.71(d), 51.95(c). The final SEIS also takes
accountof publiccomments, includingplant-specificclaimsand new information
on generic findings.See 61 Fed. Reg. at 28,470. Part 51 requires the final SEIS to
weigh all oftheexpectedenvironmentalimpactsoflicenserenewal,boththosefor
which there are generic findings and those described in plant-specific analyses.
4
The Commission recognizes that even generic findings sometimes need
revisiting in particular contexts. Our rules thus provide a number of opportunities
for individuals to alert the Commission to new and significant information that
might render a generic finding invalid, either with respect to all nuclear power
plantsorforoneplantinparticular. Inthehearingprocess,forexample,petitioners
with new information showing that a generic rule would not serve its purpose at
a particular plant may seek a waiver of the rule.See 10 C.F.R. §2.758;see also
note 3,supra,and accompanying text. Petitioners with evidence that a generic
finding is incorrect for all plants may petition the Commission to initiate a fresh
rulemaking.See 10 C.F.R. §2.802. Such petitioners may also use the SEIS
notice-and-comment process to ask the NRC to forgo use of the suspect generic
finding and to suspend license renewal proceedings, pending a rulemaking or
updating of the GEIS.See 61 Fed. Reg. at 28,470; GEIS at 1-10 to 1-11.
Finally, quite apart from individual license renewal proceedings, the
Commissionitselfwillreview(andreviseas needed)thelicenserenewalrulesand
GEIS environmental analyses every 10 years, beginning approximately 7 years
after completion of the last review.See 61 Fed. Reg. at 28,468. The Commission
again will provide opportunity for public comment. If Part 51 or any of its
underlying generic findings need modification, the Commission will institute a
4 See 10 C.F.R. §51.95; GEIS at 1-9 to 1-10; 61 Fed. Reg. at 28,485; 61 Fed. Reg. at 66,541.
12
new rulemaking. There are, in short, a number of avenues through which generic
environmentalfindings may be waived or changed.
IV. ANALYSIS
A. Mr. Oncavage’s Attack on the License Renewal Rules
We begin with Mr. Oncavage’s arguments on appeal. Mr. Oncavage devotes
most of his appeal brief to challenging the Commission’s license renewal rules.
He suggests that our renewal rules violate NEPA by centering the agency’s Part
54 safety inquiry on aging issues and by allowing the incorporation of generic
findings under our Part 51 environmental inquiry:
Are 10 C.F.R. Part 51, 10 C.F.R. Part 54 and theNational Environmental Policy Act mutually
exclusive? If Petitioner Mark P. Oncavage were to precisely follow all the rules set forth in Part
51 and 54, would he find his rights under NEPA unduly abridged? If he were to request that
all provisions of NEPA be utilized in license renewal procedures, would he incur a violation
of Commission rules?
See Petitioner Mark P. Oncavage’s Notice of Appeal (Mar. 19, 2001) (‘‘Appeal
Brief’’)at2. Mr.OncavageapparentlybelievesthatbothourPart54safetyreview
and our Part 51 environmental review are incompatible with NEPA. We do not
find his arguments persuasive.
The Commission’s AEA review under Part 54 does not compromise or limit
NEPA. The AEA and NEPA contemplate separate NRC reviews of proposed
licensing actions.See Limerick Ecology Action v. NRC,869 F.2d 719, 729-31(3d
Cir. 1989). The AEA ‘‘endows the NRC with significant discretion to determine
the information that is necessary to support the factual findings of the agency
during the licensing process.’’Kelley v. Selin,42 F.3d 1501, 1516 (6th Cir.),
cert. denied,515 U.S. 1159 (1995). The Commission reasonably chose to focus
its AEA-based Part 54 safety review on the potential detrimental effects of aging,
instead of treating license renewal as the occasion for a broad-basedreassessment
of all operational safety issues. While the aging issues the NRC considers in
its Part 54 safety review may overlap some environmental issues it considers
in its Part 51 review, the two inquiries are analytically separate: one (Part 54)
examines radiological health and safety, while the other (Part 51) examines
environmental effects of all kinds. Our aging-based safety review does not in
any sense ‘‘restrictNEPA’’ or ‘‘drastically narrow[]the scope of NEPA,’’ as Mr.
Oncavage maintains.See Appeal Brief at 2-3.
Our reliance on generic environmental findings in Part 51 also comports with
NEPA.NEPArequiresfederalagenciesto(1)‘‘considereverysignificantaspectof
theenvironmentalimpactof[the]proposedaction’’and(2)‘‘informthepublicthat
13
it has indeed considered environmentalconcerns in its decisionmaking process.’’
Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc.,462
U.S. 87, 97 (1983) (citations and internal quotations omitted). Agencies need not
‘‘elevate environmentalconcerns’’over other considerations,but they must show
that they have taken a ‘‘hard look’’ at environmental consequences.Id.Our Part
51establishesamechanismfortakingtherequired‘‘hardlook.’’ Itsuseofgeneric
findings that address impacts common to all nuclear power plants, supplemented
by a narrower review of plant-specific issues, reflects a commonplace NEPA
approach.See, e.g.,40 C.F.R. §1508.28 (Council on Environmental Quality
Regulations addressing ‘‘tiering’’ of NEPA documents). By longstanding
practice, repeatedly upheld on judicial review, the Commission has considered
and addressed generically through rulemaking specific environmental (or safety)
issues that otherwise would have been addressed in an individual licensing
proceeding.See generally Baltimore Gas & Electric,462 U.S. 87;Kelley v. Selin,
42 F.3d at 1512;Minnesota v. NRC,602 F.2d 412 (D.C. Cir. 1979).
In Baltimore Gas & Electric,the Supreme Court expressly upheld the
Commission’s adoption of a series of generic NEPA rules evaluating the
environmental effects of a nuclear power plant’s fuel cycle. 462 U.S. at 91.
The Court stressed the NRC’s broad discretion to structure its NEPA inquiries:
NEPA does not require agencies to adopt any particular internal decisionmaking structure.
Here, the agency has chosen to evaluate generically the environmental impact of the fuel
cycle and inform individual licensing boards,through the Table S-3 rule, of its evaluation.
The generic method chosen by the agency is clearly an appropriate method of conducting the
hard look required by NEPA. . . . [T]he Commission has discretion to evaluate generically
the environmental effects of the fuel cycle and require that these values be ‘‘plugged into’’
individual licensing decisions.
Id.at 100-01. When there are environmental effects that would be essentially
similar for all or a commonly identifiable subcategory of nuclear plants,
‘‘[a]dministrative efficiency and consistency of decision are both furthered by a
generic determination of these effects without needless repetition of the litigation
in individual proceedings, which are subject to review by the Commission in any
event.’’Id.at 101 (citations omitted).
Similarly, in Kelley v. Selin,the court of appeals endorsed the NRC’s generic
resolution of NEPA questions. ‘‘Although NEPA requires the NRC to undertake
‘careful consideration’ of environmental consequences,’’ the court said, ‘‘the
NRC may issue a rulemaking to address and evaluate environmentalimpacts that
are ‘generic;’ namely, neither plant-specific nor site-specific.’’ 42 F.3d at 1512
(citations and brackets omitted). ‘‘[E]ven where an agency’s enabling statute
expressly requires it to hold a hearing, the agency may rely on its rulemaking
authoritytodetermineissuesthatdonotrequirecase-by-caseconsideration....
A contrary holding would require the agency continually to relitigate issues that
14
may be established fairly and efficiently in a single rulemaking proceeding.’’Id.
at 1511 (internal quotations and brackets omitted).
Resolving an environmental issue generically does not reduce its importance.
In making a final decision on license renewal, the NRC will still weigh all
of the different environmental impacts from extended operation, whether those
impacts occur generically at all plants or on a plant-specific basis.
5 The NRC
ultimately determines whether all adverse environmentalimpacts, taken together,
‘‘are so great’’ that the renewal option would be unreasonable.See 10 C.F.R.
§51.103(a)(5). And while it is true that ‘‘Category 1’’ generic issues normally
are beyond the scope of a license renewal hearing, the Commission provides
mechanisms for a petitioner to alert the Commission to generic findings that are
incorrect or do not pertain to a particular site.See supra pp. 12-13.
The thrust of Mr. Oncavage’s appeal, in short, is ill-conceived. Neither the
NRC’s aging-driven safety inquiry nor its use of generic environmental findings
violates NEPA.
B. Mr. Oncavage’s Contentions
We turn now to Mr. Oncavage’s two specific contentions. Interwoven among
hisvariousclaimschallengingourlicenserenewalrules,Mr.Oncavage’sappellate
brief makes just a few statements directly bearing on his actual contentions in
this case. As we have said before, ‘‘[t]he Commission should not be expected to
sift unaided through . . . earlier briefs filed before the Presiding Officer in order
to piece together and discern the Intervenors’ particular concerns or the grounds
for their claims.’’Hydro Resources, Inc.(P.O. Box 15910, Rio Rancho, NM
87174), CLI-01-4, 53 NRC 31, 46 (2001). Mr. Oncavage, therefore, ‘‘bear[s]
responsibility for any misunderstanding of [his] claims.’’Id.Given that Mr.
Oncavage is a pro se intervenor, however, the Commission has made a special
effort to review the contentions he made in his Amended Petition before the
Board. We find them inadequate to justify a hearing.
1. Contention 1
Mr. Oncavage’s first contention alleges that ‘‘[t]he aquatic resources of
Biscayne National Park will become contaminated with radioactive material,
chemical wastes, and herbicides during the license renewal term which will
endangerthe health and safety of the membersof the publicwho consumeaquatic
food products that originate in the waters of Biscayne National Park.’’ Amended
5 See 10 C.F.R. §51.95; GEIS at 1-9 to 1-10; 61 Fed. Reg. at 28,485; 61 Fed. Reg. at 66,541.
15
Petition at 1. Essentially, this is a water contamination claim, focused on public
health.
The Licensing Board found that Contention 1 fell beyond the scope of
licenserenewalhearings,andimpermissiblychallengedtheCommission’slicense
renewal regulations.See 53 NRC at 164. We agree with this conclusion. ‘‘[A]
petitioner in an individual adjudication cannot challenge generic decisions made
by the Commission in rulemakings.’’North Atlantic Energy Service Corp.
(Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 217 n.8 (1999) (collecting
cases). But our review of Mr. Oncavage’s arguments leads us also to find
his contention inadmissible for lack of sufficient foundation.See 10 C.F.R.
§2.714(b)(2).Below, we discuss both of Contention 1’s defects.
a. Contention 1 Falls Beyond Scope of Parts 54 and 51
The Licensing Board correctly concluded that Contention 1 falls outside of
the scope of license renewal reviews and proceedings. As the Board found,
the contention ‘‘does not raise any aspect of the Applicant’s aging management
review or evaluationof the plant’ssystems, structures, and componentssubjectto
time-aging analysis.’’See LBP-01-6, 53 NRC at 164. It does not, then, identify
any issue encompassed by the NRC safety review for license renewal, conducted
under 10 C.F.R. Part 54, that focuses on aging.
Insofar as Contention 1 raises NEPA, or Part 51, claims, it fails as (in effect) a
collateral attack on Part 51 and its underlying GEIS. Contention 1 only involves
topics discussed in the GEIS and codified in Part 51 as generic ‘‘Category 1’’
issues. As we indicated earlier, these issues are not subject to site-specific review
and thus fall beyond the scope of individual license renewal proceedings.
Contention 1 maintains that renewing Turkey Point’s license will result in
aquaticcontaminationaffectingpublichealth. ButtheGEISprovidesanextensive
analysis of radiological impacts, including a discussion of radiation exposures
fromaquaticpathways,i.e., eatingfishcaughtnearthepointofdischargeofliquid
effluent. Its evaluation extends to all nuclear power reactors in operation in 1996
when the GEIS was issued, including Turkey Point.See GEIS at 4-84. Indeed,
the GEIS’s conclusions rest on site-specific data on effluents obtained from all
the reactor facilities.See generally id.Appendix E;see also id.at 4-84 to 4-95.
As part of its discussion, the GEIS assesses how well nuclear power plants
havemetapplicableNRCradiologicaldoselimits,designobjectives,orguidelines
(found under Appendix I to 10 C.F.R. Part 50, 10 C.F.R. Part 20, and 10 C.F.R.
§50.36a). As the GEIS describes, data collected on all nuclear power plants
‘‘demonstrate[d] that the ALARA [’’As Low As Reasonably Achievable’’]
process has been effective at controlling and reducing radiation doses to the
16
public.’’6 See id.at 4-95 (citations omitted);see also id.at 4-92 to 4-95 and
Appendix E. The GEIS study found that renewing reactor operating licenses
would not increase radioactive effluents in nearby waters:
Radiation doses to the members of the public from current operation of nuclear power plants
have been examined from a variety of perspectives and the impacts were found to be well
within design objectives and regulations in each instance. No effect of aging that would
significantly affect the radioactive effluents has been identified. Both maximum individual
and average doses are expected to remain well within design objectives and regulations. In
about 5 percent of the plants, maximum individual doses are approximately 20 percent of
the Appendix I design objective. All other plants [including Turkey Point] are operating far
below this level. Because no reason was identified to expect effluents to increase in the period
after license renewal, continued operation well within regulatory limits is anticipated. . . .
No mitigation measures beyond those implemented during the current term license would
be warranted because current mitigation practices have resulted in declining public radiation
doses and are expected to continue to do so.
Id.at 4-95.
The GEIS thus declared radiological exposure from power reactor operation
a ‘‘Category 1 issue.’’Id.This classification covers all public exposure
pathways—gaseousandliquideffluents,includingthebuildupandconcentration
of radioactive materials in soils and sediment, which could in turn impact
radionuclide levels in bottom-feeder fish.See GEIS at 4-85 to 4-86. The GEIS
containsdetailed supportforits conclusionson the radiologicalimpactsof license
renewal.See, e.g., id.at 4-84 to 4-95, 4-126, 3-26 to 3-42, Appendix E.
Contention 1 also vaguely refers to ‘‘chemical wastes’’ and ‘‘herbicides.’’
Again, these topics fall within the GEIS study. For instance, the GEIS discusses
thedischargeofchlorineandotherbiocides,thedischargeofmetalsinwastewater,
and the discharge of sanitary wastes and minor chemical spills; the GEIS finds
these discharges of small significance for all plants.See id.at 4-53 to 4-56,
4-58. The GEIS specifically considered additional mitigation measures to curtail
these discharges, but found mitigation unwarranted.See id.at 4-55 to 4-56. Part
51, therefore, characterizes these as Category 1 issues.See 10 C.F.R. Part 51,
Appendix B (Table B-1). They are not subject to litigation in a license renewal
hearing.
Mr.OncavageseekstosalvageContention1bycharacterizingitasanongeneric
‘‘groundwater conflict’’ issue.See, e.g.,Appeal Brief at 3. A ‘‘groundwater
conflict’’ concerns competing uses of the same water — for example, a reactor’s
useofwaterneededforirrigation. Ourrulesdiscussseveraltypesof‘‘groundwater
6 ALARA criteria appear in Appendix I to 10 C.F.R. Part 50. In addition, 10 C.F.R. §50.36a imposes license
conditions in the form of technical specifications on effluents from nuclear power reactors. These specifications are
intended to maintain all releases of radioactive materials to unrestricted areas during operations to ALARA levels.
17
conflicts,’’ some of which are Category 2 issues that must be addressed on a
site-specific basis.See Table B-1, 10 C.F.R. Part 51, Appendix B.
The Licensing Board rejected Mr. Oncavage’s depiction of his first contention
as a ‘‘groundwater conflict’’ claim, noting that ‘‘all the Category 2 groundwater
conflict issues deal with the issue of withdrawal of groundwater by an Applicant
when there are competing groundwater uses — a situation far different from Mr.
Oncavage’s allegation.’’ LBP-01-6, 53 NRC at 164. We agree with the Board.
Theexpression‘‘groundwateruse conflicts’’refersto‘‘conflicts’’or‘‘competing
water uses’’ arisingamong‘‘neighboringgroundwaterusers’’ becauseof reduced
quantities of available water.See GEIS at 4-115 to 4-116;see also id.at 4-53
(discussing ‘‘water use conflicts’’). For instance, if a facility is located by a small
river and withdraws large amounts of water from the river for its cooling towers,
this ‘‘could impact an alluvial aquifer during periods of low flow.’’Id.at 4-117;
see also id.at 4-52 to 4-53. Similarly, ‘‘[n]uclear power plants that withdraw
makeup water for cooling ponds from small bodies of water may need to curtail
operations during drought periods or may experience future conflicts with other
water users.’’Id.at 4-53.
In addition, the GEIS and our rules refer to three different types of Cate-
gory 2 groundwater use conflicts that could arise, but each applies only to certain
types of facilities: (a) those using cooling towers that withdraw makeup water
from small rivers, (b) those using more than an annual average of 100 gallons of
groundwaterper minute,or (c)those using so-called‘‘RanneyWells’’ forcooling
tower makeup water.
7 See id.at 4-115 to 4-118. If a particular environmental
issue does not apply to a facility, the applicant need only describe why it does
not.8
Here, FPL’s Environmental Report addresses each potential groundwater use
conflict, and states why each is inapplicable to the Turkey Point facility. FPL
notes that the Turkey Point plant does not withdraw makeup water from a river or
offsite surface waterbodies, use cooling towers or Ranney wells, or pump more
than 100 gallons of groundwater per minute.See Applicant’s Environmental
Report at 4.1-1, 4.5-1, 4.6-1, 4.7-1. Turkey Point instead obtains potable and
service water frommunicipalsuppliers. Mr. Oncavagedoesnotrebutany ofthese
statements. We therefore find the ‘‘groundwater use conflict’’ issue inapplicable
7 A Ranney Well collects water from sedimentary aquifers. It is constructed of a central caisson sunk to a depth
below the water table. Several ‘‘screens,’’ i.e., slotted collection pipes, extend radially from the bottom of the
caisson. The bottom of the caisson serves as a collection point for groundwater. A pump located at the top of the
caisson structure above the surface draws water from the bottom and forces it through overland pipe runs to the point
of service.
8 SeeSupplement1toRegulatoryGuide4.2,‘‘PreparationofSupplementalEnvironmentalReportsforApplications
to Renew Nuclear Power Plant Licenses’’ (Sept. 2000), Chap. 4, ‘‘General Guidance.’’
18
to Turkey Point, and reject Mr. Oncavage’s attempt to characterize Contention 1
as a ‘‘groundwateruse conflict’’ claim.
9
In sum, Contention 1 lies in its entirety outside Part 54, and raises only topics
that are codified in Part 51 as generic Category 1 issues. The contention therefore
advances no dispute material to the NRC’s license renewal decision at Turkey
Point. Hence, Contention 1 is not litigable.
b. Contention 1’s Lack of Foundation
To trigger a full adjudicatory hearing, petitioners must be able to ‘‘proffer at
least some minimal factual and legal foundation in support of their contentions.’’
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49
NRC 328, 334 (1999);see also 10 C.F.R. §2.714(b)(2)(ii). As the Commission
described at length in Oconee,the NRC toughened its contention-pleading rule
in 1989, to avoid the admission of contentions based on ‘‘little more than
speculation.’’Id.Prior to the amended rule, it was possible for intervenors to be
admitted to hearing after merely ‘‘copying contentions from another proceeding
involving another reactor.’’Id.(citation omitted). Hearings should serve the
purpose for which they are intended: ‘‘to adjudicate genuine, substantive safety
and environmental issues placed in contention by qualified intervenors.’’Id.
(citing H.R. Rep. No. 97-177, at 151 (1981)). While intervenors need not be
technical experts, they must knowledgeably provide some threshold-level factual
basis for their contention.
A contention must show a ‘‘genuine dispute . . . with the applicant on a
material issue of law or fact.’’See 10 C.F.R. §2.714(b)(2)(iii). To do so, the
contention should refer to those portions of the license application (including the
environmental report and safety report) that the petitioner disputes and indicate
supporting reasons for each dispute.Id.If a petitioner believes that the license
application simply fails to consider some information required by law, he or she
then may indicate that failure and supporting grounds.Id.Contentions arising
under NEPA should be based upon the Applicant’s EnvironmentalReport.
Even if Mr. Oncavage’s environmental claims were not barred as a collateral
attack on Part 51, his Contention 1 does not come close to meeting the
specificity requirements of our contention-pleading rule. While he raises several
environmental issues, Mr. Oncavage makes only broad-brushedreferences to the
Applicant’sEnvironmentalReport,whichwaspubliclyavailable. Heprovidesnot
a single reference to any particular portion of the Environmental Report. Indeed,
9 There is a Category 2 ‘‘groundwater quality degradation’’ issue involving cooling ponds that must be addressed
on a site-specific basis. It does not apply, however, to plants located adjacent to or in salt marshes.See GEIS at
4-121 to 4-122; Table B-1 to Appendix B to 10 C.F.R. Part 51. Turkey Point’s cooling canals are located in a salt
marsh.SeeGEIS at 4-122. The GEIS explicitly finds that for Turkey Point ‘‘this is a Category 1 issue.’’Id.
19
the EnvironmentalReportoftenexplicitly contradictsMr. Oncavage’sarguments,
suchas, forexample,his‘‘groundwateruseconflicts’’claim.Seesupra pp.18-19.
Mr.OncavagedoesmentiontheGEISandtheoriginal1972FinalEnvironmen-
tal Statement (FES) for Turkey Point. But he does nothing more than quote select
passages which in themselves indicate no deficiency in FPL’s license renewal
application or EnvironmentalReport. Mr. Oncavage’s ‘‘alleged facts’’ in support
of his contention amount to no more than his own predictions and speculation. In
claimingunhealthfulwatercontamination,forinstance,Mr.Oncavageraiseswhat
he calls ‘‘massive seepage, up to 89,000 gallons per minute, into Biscayne Bay
and Card Sound.’’ AmendedPetition at 1. This claim does not come from Turkey
Point’s license renewal documents, but from a page in the 1972 FES discussing
estimated groundwater‘‘seepage losses’’ to the east, rangingfrom ‘‘50 to as high
as 200 cfs [cubic feet per second].’’See 1972 FES at V-3. The 1972 discussion,
however, refers to controlling the impacts of groundwater flow on water salinity
andtemperature,nottothe radiologicalandchemicalcontaminationconcernsthat
Mr. Oncavage raises in Contention 1.
As another basis for Contention 1, Mr. Oncavage cites a passage from the
GEIS on the subject of ‘‘radionuclide deposition.’’See Amended Petition at 1.
‘‘Radionuclidedeposition’’refersto the potentialformarine organismsto receive
relatively higher radiation doses than terrestrial organisms. Fish that are bottom
feeders might ‘‘ingest worms and other biota that may remobilize radioactive
materials accumulated in the sediment.’’ GEIS at 4-86. Mr. Oncavage views
this discussion in the GEIS as a ‘‘warning of a health problem that may require
reexamination.’’See Amended Contentions at 1. But he raises no specific
indication that the Turkey Point facility has had any significant problems with
radionuclidedeposition. Nordoesheallege thatradiologicaldosestothepublic—
throughaquaticfoodpathwaysor anyother— haveexceededNRC requirements.
Mr. Oncavage’s Amended Petition does nothing more than cite to a general
passage in the GEIS outlining how radionuclide deposition is monitored. He
offers no evidence that a problem may exist at Turkey Point.
The short of the matter is that Contention 1, even if we were somehow to find
it within the scope of our license renewal inquiry (which it is not,see pp. 16-19,
supra), is so thinly supported and rationalized that it could not possibly justify a
full hearing under our contention-pleadingrule.
2. Contention 2
Mr. Oncavage’s second contention concerns the storage of radioactive spent
fuel. He claims that at Turkey Point there are ‘‘severe and unusual challenges to
the safe storage of high level radioactive spent fuel whether in spent fuel pools or
in dry cask storage.’’ Amended Petition at 2. Mr. Oncavage’s apparent concern
is the risk of a catastrophic accident —due to hurricanes or an aircraft crash
20
— involving the additional spent fuel stored in the pool (from more years of
reactor operation).See Amended Petition at 2-3. The Licensing Board found
the contention inadmissible, noting that Part 51 characterizes onsite spent fuel
storage impacts as a generic Category 1 issue, not subject to litigation in a license
renewal proceeding.See 53 NRC at 165. The Licensing Board also found that
Mr. Oncavage’s spent fuel contention raises none of the aging-related issues that
are the focus of NRC’s safety review. We agree with both conclusions.
a. Onsite Storage of Spent Fuel Is a Category 1 Issue
Our rules explicitly conclude that ‘‘[t]he expected increase in the volume of
spent fuel from an additional 20 years of operation can be safely accommodated
on site with smallenvironmentaleffectsthroughdryor poolstorageat allplantsif
a permanent repository or monitored retrievable storage is not available.’’ Table
B-1, Subpart A, Appendix B to Part 51.See Oconee,CLI-99-11, 49 NRC at
343-44. The GEIS provides the background analyses and justification for this
generically applicable finding.See GEIS at 6-70 to 6-86. It finds ‘‘ample basis
to conclude that continued storage of existing spent fuel and storage of spent
fuel generated during the license renewal period can be accomplished safely and
without significant environmental impacts.’’Id.at 6-85. The GEIS takes full
account of ‘‘the total accumulated volumes of spent fuel after an additional 20
years of operation.’’Id.at 6-79;see also id.at 6-80 to 6-81.
TheGEIS’sfindingencompassesspentfuel accidentrisks andtheir mitigation.
See GEIS, at xlviii, 6-72 to 6-76, 6-86, 6-92. The NRC has spent years studying
in great detail the risks and consequences of potential spent fuel pool accidents,
and the GEIS analysis is rooted in these earlier studies. NRC studies and
the agency’s operational experience support the conclusion that onsite reactor
spent fuel storage, which has continued for decades, presents no undue risk
to public health and safety. Because the GEIS analysis of onsite spent fuel
storage encompasses the risk of accidents, Contention 2 falls beyond the scope of
individual license renewal proceedings.
Mr. Oncavage argues, however, that a ‘‘catastrophic radiological accident at
a spent fuel facility would be a severe accident which is a category 2 issue.’’
Amended Petition at 2. Part 51 does provide that ‘‘alternatives to mitigate
severe accidents must be considered for all plants that have not considered such
alternatives.’’See Appendix B to Subpart A of Part 51;see also GEIS at
5-106 to 5-116. But Mr. Oncavage’s Contention 2 says nothing about mitigation
alternatives. And, in any event, Part 51’s referenceto ‘‘severe accident mitigation
alternatives’’appliestonuclear reactor accidents,notspentfuelstorageaccidents.
NotonlyMr.Oncavage,butalsotheNRCStaffandFPL,apparentlywasconfused
onthispoint, fornooneraisedthe importantdistinctionbetweenreactoraccidents
and spent fuel accidents. As we have seen, the GEIS deals with spent fuel
21
storage risks (including accidents) generically, and concludes that ‘‘regulatory
requirements already in place provide adequate mitigation.’’ GEIS at 6-86, 6-92,
xlviii;see also id.at 6-72 to 6-76.
On the issue of onsite fuel storage, then, the GEIS rejects the need for further
consideration of mitigation alternatives at the license renewal stage.Id.Indeed,
for all issues designated as Category 1, the Commission has concluded that
additional site-specific mitigation alternatives are unlikely to be beneficial and
need not be considered for license renewal.See 61 Fed. Reg. at 28,484; GEIS at
1-5, 1-9.
The NRC customarily has studied reactor accidents and spent fuel accidents
separately. For instance, our ‘‘Policy Statement on Severe Reactor Accidents
Regarding Future Designs and Existing Plants’’ discusses only reactor accidents
and defines ‘‘[s]evere nuclear accidents [as] those in which substantial damage is
done to the reactor core whether or not there are serious offsite consequences.’’
50 Fed. Reg. 32,138 (Aug. 1985) (emphasis added). Similarly, the various NRC
studies on severe accidents typically focus upon potential damage to the reactor
core of nuclear power plants.
10 A different set of studies altogether is devoted to
spentfuelpoolaccidents,andhasconcludedthattheriskofaccidentsisacceptably
small.11 Hence, Part 51 and the GEIS treat the matter generically. Indeed, the
events that could lead to a severe reactor accident vary significantly from plant to
plant, therebyrequiringplant-specific consideration,whereasaccidents involving
spent fuel pools or dry casks are more amenable to generic consideration.
Part51notwithstanding,Mr.OncavagemaintainedbeforetheLicensingBoard
that the possibility of catastrophic hurricanes at Turkey Point justified his plant-
specific contention on spent fuel accidents.See 53 NRC at 165. Again, however,
astheBoardheld,Part51treatsallspentfuelpoolaccidents,whatevertheircause,
as generic, Category1 eventsnotsuitable for case-by-caseadjudication.Id.In the
past, the NRC has consideredthe effect of hurricaneson reactorsgenerally.
12 And
the Staff quite recently examined their effect on spent fuel pools in particular;
it found the risks ‘‘very low’’ or ‘‘negligible.’’
13 Mr. Oncavage did not seek a
10See, e.g.,NUREG-1150, ‘‘Severe Accident Risks: An Assessment for Five U.S. Nuclear Power Plants (Dec.
1990) (examining core meltdown risks); NUREG/CR-5042,‘‘Evaluation of External Hazards to Nuclear Power
Plants in United States’’ (Dec. 1987) (examining the risk of core damage from external events).
11See, e.g.,NUREG-1353, ‘‘Regulatory Analysis for the Resolution of Generic Issue 82, ‘Beyond Design Basis
Accidents in Spent Fuel Pools’ (April 1989); NUREG/CR-4982, ‘‘Severe Accidents in Spent Fuel Pools in Support
of Generic Safety Issue 82’’ (July 1987); NUREG/CR-5281, ‘‘Value/Impact Analyses of Accident Preventive
and Mitigative Options for Spent Fuel Pools’’ (Mar. 1989); NUREG/CR-5176, ‘‘Seismic Failure and Cask Drop
Analysis of the Spent Fuel Pools at Two Representative Nuclear Power Plants (Jan. 1989). A recent study of spent
fuel storage risks at decommissioning reactors finds the risk of accident somewhat greater than originally believed,
but still very low.See NUREG-1738, ‘‘Technical Study of Spent Fuel Pool Accident Risk at Decommissioning
Nuclear Power Plants (Feb. 2001).12See, e.g.,NUREG/CR-5042, ‘‘Evaluation of External Hazards to Nuclear Power Plants in the United States
(Dec. 1987) (hurricane risk assessed in section on ‘‘high winds/tornadoes’’).13See NUREG-1738, at 3-25 (cited in note 10,supra).
22
waiver of the Category1 determinationfor spentfuel issues, nor did his hurricane
discussionsraiseanyinformationthatmightrendertheGEIS’sCategory1finding
inapplicabletothe TurkeyPoint facility. Nothingin Mr.Oncavage’s‘‘hurricane’’
claim renders it litigable under our license renewal rules.
In short, Part 51’s license renewal provisions cover environmental issues
relating to onsite spent fuel storage generically.
14 All such issues, including
accident risk, fall outside the scope of license renewal proceedings.
b. Onsite Storage of Spent Fuel Raises No Safety Question for
License Renewal
Mr. Oncavage’s spent fuel storage concerns (Contention 2) do not raise any
admissible safety issues under the NRC’s Part 54 safety review.
15 His concerns
do not relate to managing the aging of systems, structures, and components or
to any time-limited aging analyses, the safety inquiries contemplated by Part 54.
There are in fact a number of spent fuel pool structural components and related
systems subject to the Part 54 aging management review for license renewal.
FPL’s license renewal application provides extensive information on these spent
fuel storage materials and components, and on the spent fuel cooling system. At
no point does Mr. Oncavage identify any deficiency in the renewal application’s
discussion of spent fuel storage and handling. He never even refers to any part of
the license renewal application.
Mr. Oncavage does refer to ‘‘inadequate construction practices’’ and lack
of ‘‘defense in depth’’ at the Turkey Point facility,
16 but these claims go to the
adequacyoftheplant’scurrentlicensingbasis, whichisnotwithinthescopeofthe
licenserenewalreview. Hurricaneandtornadowindsaswellashurricane-induced
flooding are among the design-basis events for the Turkey Point facility. If Mr.
Oncavage genuinelyknows of a serious current safety problemresulting from the
design of the Turkey Point facility, he should petition under 10 C.F.R. §2.206 for
NRC action on the Turkey Point license.
14The Board, as well as the NRC Staff and FPL, apparently views our ‘‘Waste Confidence Rule,’’ 10 C.F.R.
§51.23(a), as an additional generic environmental finding precluding Mr. Oncavage’s spent fuel pool contention.
See 53 NRC at 165. But that rule, by its own terms, applies only to the storage of spent fuel after a reactor ceases
operation. It does not speak to the NEPA question at issue here: whether Mr. Oncavage may obtain a hearing on
spent fuel pool risks arising duringa reactor’s operating life. As we hold in the text, it is Part 51, with its underlying
GEIS, that precludes litigation of that issue.15It should be noted that during the licensing of the spent fuel pools under the current Turkey Point license, the
operation of the pools was previously evaluated and found safe for operation up to the approved capacity. If, in the
future, Turkey Point were to seek to expand the capacity of the pools or to construct dry cask storage, its action
would be subject to separate environmental and safety evaluation by the NRC, with associated license amendments
and hearing opportunities. If additional capacity is not required, it is possible that the spent fuel pools will never
operate differently as a result of license renewal. This highlights that the concerns raised by Mr. Oncavage with
respect to the spent fuel pools are not inherent in license renewal itself and are not within the scope of this renewal
proceeding.16See Amended Petition at 3.
23
Mr. Oncavage raises an additional point. He claims that the Safety Evaluation
Report for the renewal of the Turkey Point license is ‘‘fatally flawed’’ because it
relies upon an incorrect NRC Staff safety assessment of a planned international,
commercial airport to be located 4.9 miles away from the Turkey Point site.
Amended Petition at 2;see also Oncavage Appeal Brief at 4. But, as the
Board stated, Mr. Oncavage’s claim is ‘‘obviously flaw[ed]’’ because the Safety
Evaluation Report has yet even to be issued.
17 See LBP-01-6, 53 NRC at 166.
Moreover, the Commission notes that this international airport appears no longer
planned for the area. The Air Force has issued a Record of Decision in which it
states that, given environmental considerations, a commercial airport will not be
allowedat the site.See 66Fed. Reg. 12,930(Mar.2001). This Recordof Decision
was discussed at the prehearing conference, and a copy of the decision was made
available to the Licensing Board and the parties.See Transcript at 35-36, 57-58.
Thus, the latest information about the airport in the record before us pertains to
this final Air Force decision explicitly disallowing the use of its surplus property
as an airport. The Commission therefore believes that any assumption that a
commercial airport will be built on the planned site is speculative.
18
In any event, noneof Mr. Oncavage’sclaims in Contention 2 — nothis airport
claim, not his hurricane claim, not his spent fuel accident claim — raises any
aging issue under our Part 54 safety review. Thus, the Board correctly refused to
admit Contention 2 for a safety hearing.
C. Final Observations
We concludebyaddressinga fewadditionalcommentsmadebyMr.Oncavage
inhisappealbrief. Heclaimsunwarranted‘‘difficulty’’becausetheNRCStaffhas
not yet issued its SER and SEIS. Appeal Brief at 4. He believes his rights ‘‘have
been unduly abridged’’ because the Licensing Board dismissed his contentions
‘‘many months before the SEIS and SER’’ were due for publication.Id.He
asks, ‘‘[i]f the SER contains information that goes beyond the scope of Parts 51
and 54, how can a petitioner question or litigate those issues?’’Id.at 5. Mr.
Oncavage seems to believe that the Licensing Board dismissed his contentions
simply because the SEIS and SER were unavailable to him.See id.at 4.
None of this is persuasive. Contentions must be based upon the applicant’s
(here FPL’s) license application and Environmental Report. Petitioners have
17Mr. Oncavage apparently assumed that the Safety Evaluation Report had been issued and that it had relied upon
the Staff’s safety assessment of aircraft crash risk, prepared in connection with the proposed airport.
18If a tangible plan for a nearby commercial airport again emerges,see Reuters English News Service (June 4,
2001) (Defense Department reportedly reviewing Air Force’s decision to ensure the decision is consistent with
establishedpolicy), the potential safety impacts the airport may have on the TurkeyPoint facility must be considered,
and any needed measures to maintain the safety of the facility will be undertaken. If Mr. Oncavage finds that the
airport poses an unaddressed safety concern, he may bring his concerns to the NRC’s attention, or if timely and
appropriate, he may submit a late-filed contention.See 10 C.F.R. §§2.206, 2.714(a).
24
an ‘‘ironclad obligation’’ to examine the application and publicly available
documents to uncover any information that could serve as a foundation for a
contention.Oconee,49 NRC at 338 (citing Final Rule, ‘‘Rules of Practice for
Domestic Licensing Procedures — Procedural Changes in the Hearing Process,’’
54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989). ‘‘[I]t is the license application, not
the NRC Staff review, that is at issue in our adjudications.’’
19
Intervenors may amend contentions later if data or conclusions in the SER or
SEIS differ significantly from the license application or Environmental Report.
See 10 C.F.R. §2.714(a). ‘‘[M]uch of what those reports will bring to light
[however] will . . . not be new issues,but [merely] new evidence on issues that
were apparent at the time of application.’’Union of Concerned Scientists v.
NRC,920 F.2d 50, 55 (D.C. Cir. 1990) (emphasis in original). In the event that
either the SER or SEIS indeed does contain new and significant information,
NRC rules permit a petitioner to submit a late-filed contention.See 10 C.F.R.
§2.714(b)(2)(iii).
The Licensing Board dismissed Mr.Oncavage’s contentions because they
raised issues beyond the scope of a license renewal proceeding, not because the
Board ‘‘viewed the absence of [the SEIS and SER] as a flaw in the Petitioner’s
contentions,’’ as Mr. Oncavage claims.See Appeal Brief at 4. His contentions
also lacked foundation, as we explained earlier in this opinion. Mr. Oncavage
states that he is ‘‘challenging the environmental documents’’ and ‘‘challenging
the safety documents.’’See Transcript at 21. Although he had available to
him the Turkey Point license application and Environmental Report, he provides
not a single reference to any specific portion of either, and indeed indicates no
familiarity with either.
Our contention-pleading rule bars ‘‘anticipatory’’ contentions, where a
petitioner seeks to have NRC ‘‘Staff studies as a sort of pre-complaint discovery
tool.’’Oconee,49 NRC at 338 (citing Union of Concerned Scientists,920
F.2d at 56). The courts repeatedly have upheld NRC contention procedures on
judicial review.See, e.g., Union of Concerned Scientists v. NRC,920 F.2d 50
(D.C. Cir. 1990);see also National Whistleblower Center,208 F.3d 256. Mr.
Oncavage, however, appears unwilling to ‘‘commit to this type of procedure.’’
See Transcript at 20. He seems not to understand that it was his obligation
to formulate contentions based upon FPL’s license renewal application and
Environmental Report, and that, if he submitted admissible contentions, he then
could amend them if necessary once the NRC Staff issued its SER and SEIS.
Having failed to submit a single admissible issue, Mr. Oncavage complains that
the dismissal of his petition ‘‘abrogates any legitimate opportunity for [him]
19Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325,
350 (1998),aff’d sub nom National Whistleblower Center v. NRC,208 F.3d 256 (D.C. Cir.),cert. denied,121 S. Ct.
758 (2001).
25
to amend the contentions upon the issuance of the SEIS and SER.’’ Appeal
Brief at 4-5. There is, though, no right to later ‘‘amend’’ arguments that were
inadmissible to beginwith. If the SEIS and SER bringto lightnew andsignificant
dataorconclusions,whichdiffermateriallyfromwhatwasavailableinthelicense
renewal application and Environmental Report, Mr. Oncavage will still have an
opportunity to submit late-filed contentions.See 10 C.F.R. §2.714(a)(1).
The Commission recognizes that under our rules individuals concerned about
a licensing action must work within a limited time frame to examine the license
application and related documents, and that this may be especially difficult for
pro se petitioners. ‘‘But it has long been a ‘basic principle that a person who
invokes the right to participate in an NRC proceeding also voluntarily accepts
the obligations attendant upon such participation.’’’Oconee,49 NRC at 338-39,
citing Duke Power Co.(Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17
NRC 1041, 1048 (1983).
Mr.Oncavageseemsto believethat simply becausetheLicensingBoardfound
he had standing,he automaticallyshouldalso be allowed to interveneas a partyin
theproceeding.20See AppealBriefat4(‘‘[t]heLicensingBoardhas,ineffectsaid,
yes you have an interest to defend, but we won’t let you defend your interest’’).
To gain admission as a party, however, a petitioner must profferat least one valid
contention for litigation. 10 C.F.R. §2.714(b). This Mr. Oncavage has not done.
V. CONCLUSION
For the reasons given in this decision, the Commission hereby affirms
LBP-01-6.
IT IS SO ORDERED.
For the Commission
ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 19th day of July 2001.
20FPL and the NRC Staff contest Mr. Oncavage’s standing to intervene.See 10 C.F.R. §2.714(a)(2) (intervenors
must demonstrate how their own ‘‘interest may be affected by the results of the proceeding’’). The Licensing Board
determined that Mr. Oncavage had failed to show the ‘‘traditional elements of standing,’’ but nonetheless the Board
concluded that Mr. Oncavage’s residence 15 miles from the Turkey Point facility was sufficient to accord him
standing.See LBP-01-6, 53 NRC at 146-50. The Board applied a ‘‘proximity presumption’’ — a presumption of
standing for those residing within 50 miles of the reactor that sometimes has been applied in NRC reactor licensing
cases. Because the Commission has found Mr. Oncavage’s contentions inadmissible, we do not decide whether the
Board’s application of a proximity presumption was correct.See Oconee,CLI-99-11, 49 NRC at 333 n.2.
26
Cite as 54 NRC 27 (2001)CLI-01-18
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Edward McGaffigan
Jeffrey S. Merrifield
In the Matter of Docket No. 40-8681-MLA-8
(Source Material
License Amendment)
(License No. SUA-1358)
INTERNATIONAL URANIUM (USA)
CORPORATION
(White Mesa Uranium Mill) July 30, 2001
RULES OF PRACTICE: STANDING TO INTERVENE
To demonstrate standing in a Subpart L materials licensing case, a petitioner
must allege ‘‘(1) an actual or threatened, concrete and particularized injury,
that (2) is fairly traceable to the challenged action, (3) falls among the general
interests protected by the Atomic Energy Act . . . and (4) is likely to be
redressed by a favorable decision.’’Sequoyah Fuels Corp.(Gore, Oklahoma Site
Decommissioning), CLI-01-2, 53 NRC 9, 13 (2001).
ATOMIC ENERGY ACT: SECTION 11e(2)
As long as source material is processed to extract either uranium or thorium,
the resulting tailings are 11e(2) byproduct material, regardless of whether, prior
to processing, the material contained more of a mineral that was not extracted
than the thoriumor uraniumthatwas extracted.See InternationalUranium(USA)
Corp.(Request for Materials License Amendment), CLI-00-1, 51 NRC 9, 15-16
(2000).
27
RULES OF PRACTICE: STANDING TO INTERVENE (INJURY
IN FACT)
A claim that the applicant has violated or will violate the law does not create a
presumption of standing, without some showing that the violation could harm the
petitioner.
RULES OF PRACTICE: STANDING TO INTERVENE
The Commission generally defers to the Presiding Officer’s determinations
regarding standing, absent an error of law or an abuse of discretion.See
International Uranium (USA) Corp.(White Mesa Uranium Mill), CLI-98-6, 47
NRC 116, 118 (1998);Georgia Institute of Technology (Georgia Tech Research
Reactor), CLI-95-12, 42 NRC 111, 116 (1995).
RULES OF PRACTICE: STANDING TO INTERVENE (INJURY
IN FACT)
Inchallengingalicenseamendment,apetitionermustshowthattheamendment
will cause a ‘‘distinct new harm or threat’’ apart from the activities already
licensed.Commonwealth Edison Co.(Zion Nuclear Power Station, Units 1 and
2), CLI-99-4, 49 NRC 185, 192 (1999).
RULES OF PRACTICE: STANDING TO INTERVENE (INJURY
IN FACT)
The mere increase in the traffic of low-level radioactive material on a highway
near the petitioner’s residence, without more, does not constitute an injury
traceable to a license amendment that primarily affects a site hundreds of miles
away.See, e.g., Northern StatesPower Co.(PathfinderAtomic Plant), LBP-90-3,
31 NRC 40 (1990).
MEMORANDUM AND ORDER
Petitioner Sarah Fields has filed an appeal,pro se,of the Presiding Officer’s
decision denying her request for a hearing in this license amendment proceeding.
See LBP-01-8, 53 NRC 204 (2001). Finding no error in the Presiding Officer’s
ruling that Fields has not demonstrated standing, we affirm.
28
I. BACKGROUND
InternationalUranium(USA)Corporation(IUSA)seekstoamendNRCSource
Material License SUA-1358 to allow IUSA to receive and process up to 2000
cubic yards of alternative feed material at its White Mesa Uranium Mill near
Blanding,Utah. The alternativefeedmaterialis‘‘monazitesand’’whichhasbeen
processed by Heritage Minerals, Inc., to remove minerals, particularly titanium,
and which still contains uranium and thorium. IUSA intends to process the
material to extract uranium, and dispose of the remainder onsite.
If the license amendment is approved, the material will be shipped from New
Jersey by truck through Moab, Utah, on Utah State Highway 191 on its way to
White Mesa. Petitioner Fields lives in Moab, one block from Highway 191, and
also works one block away from the highway on the other side. She contends
that she will be affected by radioactive emissions from the trucks passing by. In
addition, should there be an accident, she contends that high winds could spread
the material all over the neighborhoodwhere she lives and works.
AfterconsideringFields’spetitionanditsaddenda,aswell as IUSA’sresponse
and supporting expert opinion, and after conducting a telephone conference
with all parties, the Presiding Officer concluded that Fields had not shown that
the requested amendment could cause her a concrete and particularized injury.
IUSA’s undisputed statements indicated that about ten trucks per week for 1-3
months would be carrying Heritage material through Moab.See 53 NRC at
210. The Presiding Officer found, based on uncontroverted expert opinion, that
the radiological emissions from the material were minute and that any potential
exposure, even in the case of an accident, would be negligible.Id.at 219-20.
In addition, the Presiding Officer found that Fields had not shown that any
danger presented by the Heritage material was different from or greater than that
presented by the material IUSA is already licensed to receive and process at
White Mesa.Id.at 220. Concluding that the Heritage materials would not present
a new or increased danger to Fields, the Presiding Officer found that Fields had
not shown any injury traceable to the license amendment.Id.The Presiding
Officer therefore concluded that two elements of standing — injury-in-fact and
traceability to the requested amendment — were lacking.Id.
29
II. DISCUSSION
1
A. Allegation of a Violation of Law Does Not Create Presumption
of Standing
To demonstrate standing in a Subpart L materials licensing case, a petitioner
must allege
(1) an actual or threatened, concrete and particularized injury, that (2) is fairly traceable to the
challenged action, (3) falls among the general interests protected by the Atomic Energy Act
...and(4)islikelytoberedressedbyafavorabledecision.
Sequoyah Fuels Corp.(Gore, Oklahoma Site Decommissioning), CLI-01-2, 53
NRC 9, 13 (2001).
Fields’s appeal fails almost entirely to address the threshold issue of standing,
i.e., how the amendment could injure her personally. For standing, she relies
on a merits-based argument that the proposed license amendment would be
unlawful,and that this unlawfulnessgivesrise to a presumptionof standing. If we
understandher merits argument correctly, Fields claims that because the Heritage
material contains more thorium than uranium, it is primarily ‘‘thorium source
material’’ rather than ‘‘uranium source material.’’ Because the thorium is not
to be extracted, Fields claims, the material left after processing at White Mesa
will not be ‘‘byproduct material,’’ as that term is defined in section 11e(2) of
the Atomic Energy Act (‘‘11e(2) material’’),
2 and hence not licensable at White
Mesa. She thereforeconcludesthat if IUSA receivesand disposesof the monazite
sand at White Mesa, it will be in violation of the AEA.
The Commission has never held that a claimed violation of law creates a
presumption of standing, without some showing that the violation could harm
the petitioner. In support of her standing argument, Fields cites Energy Fuels
Nuclear Inc.(White Mesa Uranium Mill), LBP-97-10, 45 NRC 429 (1997),
which involved a similar license amendment to allow processing additional feed
material. The Presiding Officer in that case found that the petitioner, an adjacent
1 As an initial matter, we note that our regulations give Fields the right to appeal from an initial decision denying
her hearing request in its entirety.See 10 C.F.R. §2.1205(o). She was not required, as IUSA has argued, to
meet the standards for discretionary Commission review set forth in 10 C.F.R. §2.786. IUSA points to 10 C.F.R.
§2.1253, which requires a party to meet the section 2.786 standardswhen petitioning for review of an initial decision
following an informal hearing. The Presiding Officer’s order here, however, wholly denied Fields’s hearing request
and therefore section 2.1253 does not apply.
2 ‘‘The term ‘byproduct material’ means . . . (2) the tailings or wastes produced by the extraction or concentration
of uranium or thorium from any ore processed primarily for its source material content.’’ AEA §11e(2), 42 U.S.C.
§2014(e)(2).
30
property owner, had failed to show a ‘‘mechanism for injury’’ for the disputed
materialstoenterhisproperty.InthepassageFieldsquotestosupportherstanding
argument,thePresidingOfficernotedthat‘‘if...thereisalawpreventing[a]
particular material from being stored pursuant to the amendment, then there may
also be a presumption of . . . standing.’’Energy Fuels Nuclear,45 NRC at 431.
But taken in context, it is clear that the Presiding Officer was merely suggesting
that if the materials were stored improperly, it could be presumed that they might
escape onto the Petitioner’s property, causing the injury requisite for standing. In
contrast,Fields doesnotliveneartheWhite MesaMill, butnearthetransportation
route. There is no reason to presume that any alleged unlawful processing or
storage at the mill could injure Fields. The Presiding Officer’s ruling in Energy
Fuels Nuclear does not endorse a general theory that a violation by a licensee
gives standing to any person who is offended in principle, but not injured in fact,
by the violation.
Further, without delving deeply into Fields’ argument that the license
amendment would be unlawful, we observe that even though the monazite sand
may contain more thorium than uranium, as long as it is, in fact, processed to
extract either uranium or thorium, the resulting tailings will be 11e(2) byproduct
material.See InternationalUranium (USA) Corp.(Request for Materials License
Amendment), CLI-00-1, 51 NRC 9, 15-16 (2000).
B. Presiding Officer’s Finding of No Injury Was Not Abuse
of Discretion
The Commission generally defers to the Presiding Officer’s determinations
regarding standing, absent an error of law or an abuse of discretion.See
International Uranium (USA) Corp.(White Mesa Uranium Mill), CLI-98-6, 47
NRC 116, 118 (1998);Georgia Institute of Technology (Georgia Tech Research
Reactor), CLI-95-12, 42 NRC 111, 116 (1995). Here, the Presiding Officer
reasonably found that Fields failed to show how the amendment of this license
would affect her. While on appeal Fields voices some complaints about the
Presiding Officer’s choice of words in her opinion, none of these complaints
addresses standing questions, and therefore none shows an error of law or abuse
of discretion in the denial of the hearing request.
Inchallengingalicenseamendment,apetitionermustshowthattheamendment
will cause a ‘‘distinct new harm or threat’’ apart from the activities already
licensed.Commonwealth Edison Co.(Zion Nuclear Power Station, Units 1 and
2), CLI-99-4, 49 NRC 185, 192 (1999). The evidence before the Presiding
Officer showed that the potential radiological consequences to Fields from the
transportation of the Heritage material, even in the case of an accident on the
highway, are negligible.See LBP-01-8, 53 NRC at 218-19. Similarly, Presiding
Officersinthepasthavedeclinedtofindthatthemereincreaseinthetrafficoflow-
31
level radioactive material on a highway near the Petitioner’s residence, without
more,constitutes an injurytraceableto a license amendmentthat primarilyaffects
a site hundreds of miles away.See, e.g., Northern States Power Co.(Pathfinder
Atomic Plant) LBP-90-3, 31 NRC 40 (1990). Fields did not present any evidence
that this material differs from material IUSA is already authorizedto receive with
respect to the type of hazard presented. On the contrary, much of the material
IUSA is already authorized to ship to White Mesa through Moab on Highway
191 has equal or higher concentrations of uranium and thorium.See LBP-01-8,
53 NRC at 222-23.
For the reasons stated, the Commission affirms LBP-01-8.
It is so ORDERED.
For the Commission
ANDREW L. BATES
Acting Secretary of the Commission
Dated at Rockville, Maryland,
this 30th day of July 2001.
32
Cite as 54 NRC 33 (2001)LBP-01-21
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
Ann Marshall Young,Chair
Dr. Peter S. Lam
Thomas D. Murphy
In the Matter of Docket No. 50-213-OLA
(ASLBP No. 01-787-02-OLA)
CONNECTICUT YANKEE ATOMIC
POWER COMPANY
(Haddam Neck Plant) July 9, 2001
In this license termination proceeding under 10 C.F.R. §50.82(a)(9), (10),
the Licensing Board finds that Petitioners Citizens Awareness Network and the
Connecticut Department of Public Utility Control have both established interests
sufficient to confer standing and submitted admissible contentions, and therefore
grants in part the hearing requests of both.
RULES OF PRACTICE: STANDING TO INTERVENE;
INTERVENTION
REGULATIONS: INTERPRETATION (10 C.F.R. §2.714(a)(2),
2.714(d)(1), 2.715(c))
Judicial concepts of standing provide the following guidance in determining
whether a petitioner has established the necessary ‘‘interest’’ under 10 C.F.R.
§2.714(d)(1): To qualify for standing a petitioner must allege (1) a concrete
and particularized injury that is (2) fairly traceable to the challenged action
and (3) likely to be redressed by a favorable decision, criteria commonly
referred to, respectively, as ‘‘injury in fact,’’ causality, and redressability. The
33
injury may be either actual or threatened, but must lie arguably within the
‘‘zone of interests’’ protected by the statutes governing the proceeding — here,
either the Atomic Energy Act (AEA) or the National Environmental Policy Act
(NEPA). An organization may satisfy these standing criteria either by showing
organizationalstanding, based upon the licensing action’s effect upon the interest
of the petitioning organization itself; or by showing representational standing,
based upon the interest of at least one of its members who has authorized the
organization to represent him or her. In addition, 10 C.F.R. §2.715(c) provides
that a presiding officer may offer states, counties, municipalities, and/or agencies
thereof a reasonable opportunity to participate in a proceeding.
RULES OF PRACTICE: STANDING TO INTERVENE;
INTERVENTION
A publicinterest grouppetitionerestablishedstandingto beadmittedas a party
by demonstrating that the proposed license amendment could cause the requisite
injury to members within the AEA or NEPA zone of interests, redressable by a
favorable decision in this proceeding,through three affidavits of members who
own property abutting or near the plant site, in which it is alleged that the health
and safety of members would be affected by contamination through drinking
water taken from a well close to the site and through continuing exposure to
radioactive waste both above- and belowground, and that property values would
be affected.
RULES OF PRACTICE: STANDING TO INTERVENE;
INTERVENTION
A state agency petitioner, responsible for overseeing the health, safety,
environmental, and economic interests of local citizens who live, work, and
travel near a plant site, established standing to be admitted as a party by showing
the requisite redressable injury within the AEA or NEPA zone of interests.
RULES OF PRACTICE: CONTENTIONS
REGULATIONS: INTERPRETATION (10 C.F.R. §2.714(b)(2), (d)(2))
Thefailureofa contentiontocomplywithanyoftherequirementsof10C.F.R.
§2.714(b)(2) and (d)(2) is grounds for dismissing the contention. A petitioner is
notcalledupontomakeitscaseatthecontentionstageoftheproceeding,butmust
indicate what facts or expert opinions, be it one or many, of which it is aware at
thetime, providethe basis forits contention. Noris a petitionerrequiredtoproffer
facts sufficient to withstand a summary disposition motion, but must present
34
sufficient information to show a genuine dispute, and reasonably indicating that
further inquiry is appropriate. A contention must directly controvert and actually
and specifically challenge the application in order to be admitted; and additional
information corroborating the existence of an actual safety problem, in the form
of documents, expert opinion, or at least a fact-based argument, is necessary,
as is specific reference to specific portion(s) of a licensee’s application. It is
the petitioner’s obligation to formulate a contention and provide the information
necessary to satisfy the basis requirement of the rule, and mere reference to a
documentisnotasufficientbasis. Norisanexpertaffidavitwithnoparticularized,
reasonablyspecificfactsoropinionsufficienttosupportanadmissiblecontention.
Norare contentionscognizableunlesstheyraise issues germaneto the application
pending before the licensing board, and are material to matters that fall within the
scope of the proceeding for which the board has been delegated jurisdiction.
RULES OF PRACTICE: CONTENTIONS; ALLEGED LACK OF
INFORMATION IN APPLICATION
REGULATIONS: INTERPRETATION (10 C.F.R. §§50.82(a)(9)(ii)(D),
2.714(b)(2)(ii))
Althoughpetitionerswhoallegethatanapplicationlacksnecessaryinformation
are not required to fill the ‘‘gap’’ with their own detailed alternative, they must
provide a concise statement of the alleged facts or expert opinion that support
the contention and on which they rely; mere reference to the document (here a
License Termination Plan (LTP)) itself, or to ‘‘possible’’ recontamination and
expressions of ‘‘concern,’’ without more, is insufficient to support the admission
of such a contention.
RULES OF PRACTICE: CONTENTIONS; USE OF GUIDANCE
DOCUMENTS
LICENSE TERMINATION PLAN: SITE CHARACTERIZATION
REGULATIONS: INTERPRETATION (10 C.F.R. §50.82(a)(9)(ii)(A))
In considering and ruling on a contention relating to the adequacy of an
LTP’s site characterization, and interpreting what constitutes an adequate site
characterization under 10 C.F.R. §50.82(a)(9)(ii)(A), it is appropriate, in the
absence of any specific definition in the rule, to look first to the meaning of the
words, to seek furtherguidancein the Commission’sStatementof Considerations
(SOC) for the rule, and also to seek assistance in guidance documents such as
NUREGs, provided they do not conflict with the plain meaning of the wording
of the regulation. Even though they do not carry the binding effect of regulations
35
or prescribe requirements, so that nonconformance with them does not equate to
noncompliancewith regulations, and they do not necessarily prevent a party from
arguing that other or alternative considerations should be taken into account in
makingan ultimate rulingon the merits of a contention,guidancedocumentsmay
assist in resolving any ambiguity in a regulation’s language.
RULES OF PRACTICE: CONTENTIONS; USE OF RAIs
Staff requests for additional information (RAIs) may be relevant in the
adjudicatory process, and may be used to support contentions, provided a
petitioner does more than just rest on their mere existence.
RULES OF PRACTICE: CONTENTIONS
REGULATIONS: INTERPRETATION (10 C.F.R. §2.714(b)(2)(ii))
FindingsofanAdministrativeLawJudge fromanotheragencydonotconstitute
the type of facts or expert opinion required to support a contention.
RULES OF PRACTICE: CONTENTIONS (LATE-FILED)
After receipt of Licensee’s responses to Staff’s RAIs and the Staff’s issuance
of its Safety Evaluation Report (SER), late-filed contentions may be submitted
within appropriate deadlines and will be ruled on under 10 C.F.R. §2.714(a)(1),
(b)(2), and (d)(2).
RULES OF PRACTICE: DISCOVERY (AGAINST NRC STAFF)
Where Staff has not reviewed the LTP and contentions are admitted alleging
thattheLTPisnotsufficientlydetailed,discoveryagainsttheStaffwillbedelayed
until after Licensee’s responses to Staff’s extensive RAIs have been received and
Staff has issued its SER on the LTP.
RULES OF PRACTICE: SCOPE OF PROCEEDING; LICENSE
TERMINATION PLAN
REGULATIONS: INTERPRETATION (10 C.F.R. §50.82(a)(9), (10))
AnLTPproceedingisconfinedtoareviewofthemattersspecifiedin10C.F.R.
§50.82(a)(9), (10), defined by the terms of section 50.82(10) as read in light of
the filing requirements of section 50.82(a)(9)(ii)(A)-(G),and is coextensive with
the LTP itself. The LTP is necessary because the NRC must make decisions
36
regarding adequate funds, radiation release criteria, and adequacy of the final
survey required to verify that the release criteria have been met. Matters such as
plans for site remediation and for the final radiation survey are within the scope
of an LTP proceeding,but some other subjects, includingspent fuel management,
are not.
RULES OF PRACTICE: SCOPE OF PROCEEDING; LICENSE
TERMINATION PLAN
The purpose of the LTP process is to ensure that the property will be left in
such a condition that nearby residents can frequent the area without endangering
their health and safety, and is the one and only chance petitioners have to litigate
whetherthe proposedsurveymethodologyis adequateto demonstratethatthe site
will ultimately be brought to a condition suitable for license termination.
RULES OF PRACTICE: SCOPE OF PROCEEDING; LICENSE
TERMINATION PLAN
NRC intentionally did not adopt the EPA drinking water standard in the LTP
rule, and the licensing board has no authority to enforce EPA standards not
adopted by NRC.
LICENSE TERMINATION PLAN: SITE CHARACTERIZATION
REGULATIONS: INTERPRETATION (10 C.F.R. §50.82(a)(9)(ii)(A))
A site characterization in an LTP must contain a description of the essential
character or quality of the plant site.
LICENSE TERMINATION PLAN: SITE CHARACTERIZATION
REGULATIONS: INTERPRETATION (10 C.F.R. §50.82(a)(9), (10))
A showing of a violation of 10 C.F.R. §50.82(a)(9) — which contains the
words, ‘‘[t]he LTP must include’’— could constitute a significant indication of a
possibleviolationof10C.F.R.§50.82(a)(10);ifasitecharacterizationasrequired
undersection 50.82(a)(9)(ii)(A)is shownto be inadequate,then areasnotcovered
by the site characterization might be omitted or given inadequate attention in
cleanup efforts and in the final status survey, which could in turn be an indication
that the LTP has not ‘‘demonstrate[d]that the remainder of the decommissioning
activities [1] will be performed in accordance with the regulations in this chapter,
[2] will not be inimical to the common defense and security or to the health and
37
safety of the public, and [3] will not have a significant effect on the quality of the
environment,’’under section 50.82(a)(10).
LICENSE TERMINATION PLAN: TECHNICAL ISSUES; ALLEGED
RUBBLIZATION
A licensing board does not have authority under the LTP rule to determine
what a licensee may do after unrestricted release, once it is determined that
requirements for unrestricted release have been met; however, a petitioner will
be permitted to present otherwise admissible evidence on the adequacy of the
LTP’s site characterization and plans for final cleanup and survey of buildings
and buried foundations, taking into account possible post-release demotion and
burial activities.
LICENSE TERMINATION PLAN: TECHNICAL ISSUES DISCUSSED
Thefollowingtechnicalissuesarediscussed: RequirementforHistoricalSite
AssessmentinLTP;RequirementforUnplannedReleasesListinLTP;Monitoring
of Radiological Releases During Operations; Requirement of Multi-Agency
Radiation Survey and Site Investigation Manual (MARSSIM), NUREG-1575,
Rev. 1 (Aug. 2000), that all plant site areas are initially considered Class 1 unless
some basis for reclassification as nonimpacted, Class 3, or Class 2 is provided;
LTP Work Scope; Methodology for Determining Background Radiation Levels;
Dose Modeling Calculations; Water Contamination Issues.
TABLE OF CONTENTS
I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
II. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
A. Standing ............................................ 43
B. Contentions.......................................... 45
1. Scope of LTP Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . 45
2. ContentionRequirements .......................... 46
3. RulingsonContentions............................ 49
General Contentions .............................. 50
a. CDPUC Contention IV: Degree of Detail and
Specificity Required in an LTP, Quality
Control,IsolationandControl ..................50
b. CAN Contention 7.1: Spent Fuel, High-Level
WasteStorageandHandling ...................52
38
c. CAN Contention 7.2: Recontamination of
ReleasedAreas ..............................53
Contentions Relating to Site Characterization .......... 56
d. CDPUC Contention I.A: Adequacy of Site
Characterization, Historical Site Assessment . . . . . . . 56
e. CDPUC Contention I.B: Adequacy of Site
Characterization, Comprehensiveness of List of
UnplannedReleases ..........................64
f. CDPUC Contention I.C: Adequacy of Site
Characterization, Reliability of Monitoring of
Radiological Releases During Operations . . . . . . . . . 67
g. CDPUC Contention I.D: Adequacy of Site
Characterization, Fuel Failures, and Likelihood
ofAlphaContamination .......................70
h. CDPUC Contention I.E: Adequacy of Site
Characterization, Justification for Initial Area
Classifications ..............................72
i. CDPUC Contention I.F: Adequacy of Site
Characterization, Buried Piping and Drains . . . . . . . . 75
j. CAN Contention 1.1: Adequacy of Site
Characterization, Information on Extent of
ContaminationonSite ........................77
k. CAN Contention 1.2: Adequacy of Site
Characterization, Supporting Documentation . . . . . . 79
l. CAN Contention 1.3: Adequacy of Site
Characterization, Effect on Final Status Survey . . . . 79
m. CAN Contention 1.4: Adequacy of Site
Characterization, Extent of Transuranic,
Hard-to-Detect Nuclide (HTDN), and ‘‘Hot
Particle’’Contamination ......................80
n. CAN Contention 1.5: Adequacy of Site
Characterization, Methodology for Detection and
Cleanup of Transuranic, HTDN, and ‘‘Hot
Particle’’Contamination ......................80
o. CAN Contention 3.1: Identification of
SubsurfaceContamination .....................81
p. CAN Contention 3.2: Deep Pockets and
Potential Concentrations of Subsoil
Contamination ..............................83
Contentions Relating to Work Scope ................. 84
q. CDPUC Contention II.A: Scope of Work To
Remove Contaminated Soil and Asphalt . . . . . . . . . . 84
39
r. CDPUC Contention II.B: Potential Releases
fromDrains ................................86
s. CDPUC Contention II.C: Whether Residual
Radioactivity Confined to Surface Soil . . . . . . . . . . . 87
t. CDPUC Contention III: Estimate of Low-Level
Waste .....................................89
Contentions Relating to Dose Calculations ............ 89
u. CAN Contention 2.1: Background Radiation
Measurements...............................90
v. CAN Contention 2.2: Methodology for
Determining Background Radiation Levels for
Construction Materials To Be Left in Place . . . . . . . . 91
w. CAN Contention 2.3: Instruments Used To
Determine Background Radiation Levels . . . . . . . . . 92
x. CAN Contention 6.1: Dose Modeling
Calculation Methodology . . . . . . . . . . . . . . . . . . . . . . 92
y. CAN Contention 6.2: Derived Concentration
Guideline Level (DCGL) Methodology and Data . . . 94
Contentions Relating to Water Contamination .......... 95
z. CAN Contention 4.1: Monitoring of
Contaminated Groundwater . . . . . . . . . . . . . . . . . . . . 95
aa. CAN Contention 4.2: Identification of
UnmonitoredLeaks ..........................97
bb. CAN Contention 4.3: Gross Alpha and Beta
Concentrations in Monitoring Wells . . . . . . . . . . . . . 99
cc. CAN Contention 4.4: Contamination in
DischargeCanal ............................100
dd. CAN Contention 4.5: EPA Maximum
Contaminant Levels (MCL) for Drinking Water . . . 101
Contention Relating to Rubblization ................. 102
ee. CAN Contention 5.0, Subparts 5.1-5.4 . . . . . . . . . . 102
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
A. Admitted Contentions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
B. Efficient Conduct of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 106
C. Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
IV. ORDER ................................................ 106
40
MEMORANDUM AND ORDER
(Ruling on Standing and Contentions)
This proceeding concerns a license amendment application of Connecticut
Yankee Atomic Power Company (CYAPCO, Connecticut Yankee, Applicant, or
Licensee),seekingapprovalpursuantto10C.F.R.§50.82(a)(9),(10),ofaLicense
Termination Plan (LTP) for its Haddam Neck Plant, located approximately 21
miles southeast of Hartford, Connecticut, on the east bank of the Connecticut
River. The Citizens Awareness Network (CAN) and the Connecticut Department
of Public Utility Control (CDPUC or Connecticut) have requested a hearing and
petitioned to intervene with regard to the amendment request and LTP.
Forthereasonssetforthbelow,weconcludethatbothPetitionershavestanding
and have proffered admissible contentions, and we therefore grant, in part, the
hearing requests of both.
I. BACKGROUND
In its July 7, 2000, license amendment request, Connecticut Yankee proposes
to add a new license condition that would approve the LTP, also dated July 7,
2000,andallow theApplicantto makechangestothe approvedLTPwithoutprior
NRC approval if certain criteria specified in the license condition are met. After
a public meeting held October 17, 2000, the Staff proposed to determine that
the amendment request involves no significant hazards consideration under 10
C.F.R. §50.92(c), and provided notice of this finding and of the opportunityfor a
hearing with regard to the amendmentrequest in the December 13, 2000,Federal
Register.65 Fed. Reg. 77,913 (2000). Thereafter, Petitioners CAN, appearing
throughnonattorneyrepresentatives,1 and CDPUC filed their requests for hearing
on January 11 and 17, 2001, respectively, and this matter was forwarded to the
Atomic Safety and LicensingBoard Panel on January23, 2001. In their responses
filed January 29 and 30, 2001, respectively, both Connecticut Yankee and the
Staff state that they do not oppose finding that both Petitioners have standing to
proceed in the matter.
On January 31, 2001, this Licensing Board was established to preside over
this proceeding.See 66 Fed. Reg. 9,111 (Feb. 6, 2001). In its initial prehearing
order of February 2, 2001, the Board set deadlines of February 26 and March 19,
2001,for the filingof amendedand supplementedpetitionsandresponsesthereto,
1 At one point early in this proceeding there was some indication that CAN might be assisted by counsel, but the
attorneyinquestionwithdrewfrom anyrepresentationofCAN,andCANcurrentlyappearsthrough threenonattorney
representatives, Ms. Rosemary Bassilakis, Director of Connecticut CAN; Ms. Deborah B. Katz, Executive Director
of CAN; and CAN member Ms. Katie Flynn-Jambeck.
41
which deadlines were subsequently extended to March 12 and April 2, 2001,
at the unopposed request of Petitioner Connecticut joined by CAN, based upon
the Applicant’s indication that it might revise significant portions of the LTP.
Licensing Board Memorandum and Order (Setting Schedule for Proceedings)
(Feb. 2, 2001) at 1-2 (unpublished); Licensing Board Memorandum and Order
(Addressing Motions and Amending Schedule for Proceedings) (Feb. 28, 2001)
at 1 (unpublished). In accordance with the extended deadlines, the Petitioners
filed their amended and supplemented petitions and contentions, and Connecticut
Yankee and the Staff responded, opposing some of the proffered contentions.
Oral argument on the Petitioners’ contentionscommencedon April 24, 2001, and
was concluded on May 9, 2001, in Cromwell, Connecticut. Tr. 1-349.
During oral argumenton April 24, an issue that recurs throughoutmany of the
Petitioners’ contentions — the level of detail and specificity required of an LTP
— prompted Staff Counsel to point out the ‘‘unique procedural status’’ of ruling
onandbeginninga hearingon contentionsallegingthattheLTPis notsufficiently
detailed, in advance of the Staff’s review of the plan. Asserting that the Staff’s
review will not be completed until extensive requests for additional information
(RAIs) have been answered, which will likely result in significant alterations in
the LTP prior to Staff approvalof it, Staff Counsel suggested that it might ‘‘make
moresense to examine[thecontentions]aftertheStaffhascompleteditsreview.’’
Tr. 44-46.
The Board determined that its decision on contentions filed to date would not
be delayed. Assuming, however, that a hearing would be granted in this matter
based upon at least unopposed standing and contentions, and based upon the
agreement of all participants during a May 2, 2001, telephone conference, Tr.
363-69, the Board ruled that discovery against the Staff would be delayed until
after the Licensee’s responses to the RAIs have been received and provided to
all participants and the Staff has issued its Safety Evaluation Report (SER) on
the LTP. Order (Scheduling Remainder of Oral Argument on Contentions, and
Confirming Matters Addressed in May 2, 2001, Telephone Conference) (May
2, 2001) at 2 (unpublished);see Baltimore Gas & Electric Co.(Calvert Cliffs
Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 351 n.12 (1998).
As a result of the May 2 ruling it is anticipated that, based on the RAI responses,
the Staff’s SER, and changes to the LTP, the Petitioners may submit some late-
filed contentions, which would be ruled on under 10 C.F.R. §2.714(a)(1), (b)(2),
and (d)(2). Appropriate deadline(s) for any such late-filed contentions will be set
after the SER has been issued, along with a schedule for discoveryfrom the Staff,
other appropriate matters, and a hearing on all admitted contentions that have not
otherwise been resolved.Id.
After the conclusion of oral argument, during which an objection was
sustained to CAN’s submission of a document proffered in support of one
of its contentions, Tr. 614, CAN filed a Motion to Reconsider Admission of
42
Draft Report Titled ‘‘Evaluation for the Dec-Mar, 2001 Groundwater Tritium
Fluctuations’’ by Allen D. Yates (May 16, 2001) (hereinafter CAN Motion to
Reconsider). Thereafter, CYAPCO filed its Opposition of Connecticut Yankee
to CAN Motion for Reconsideration (May 24, 2001) (hereinafter CYAPCO
Opposition to CAN Motion), and the Staff filed the NRC Staff Response to
Motion to Reconsider Admission of Draft Report Titled ‘‘Evaluation for the
Dec-Mar, 2001 Groundwater Tritium Fluctuations’’ by Allen D. Yates (June 7,
2001). This motion is ruled on in our discussion of CAN Contention 4.2, below.
II. ANALYSIS
A. Standing
As indicated by the Commission in Yankee Atomic Electric Co.(Yankee
Nuclear Power Station), CLI-98-21, 48 NRC 185, 194 (1998), NRC standing
criteria are ultimately groundedin section 189aof the Atomic EnergyAct (AEA),
42 U.S.C. §2239(a), which requires the NRC to provide a hearing upon the
request of any person ‘‘whose interest may be affected by the proceeding.’’
Both Petitioners assert such an interest, specifically relying on the implementing
provisions of 10 C.F.R. §2.714.
Under section 2.714(a)(2), an intervention petition must set forth with
particularity ‘‘the interest of the petitioner in the proceeding, how that interest
may be affected by the results of the proceeding, including the reasons why
petitionershouldbepermittedto intervene,with particularreferenceto the factors
in paragraph (d)(1),’’ along with ‘‘the specific aspect or aspects of the subject
matter of the proceeding as to which petitioner wishes to intervene.’’ 10 C.F.R.
§2.714(a)(2). Subsection (d)(1) provides in relevant part that the Board shall
consider the following three factors when deciding whether to grant standing to a
petitioner:
(i) Thenatureofthepetitioner’s rightunderthe[AEA]tobemadeapartytotheproceeding.
(ii) The nature and extent of the petitioner’s property, financial, or other interest in the
proceeding.
(iii) The possible effect of any order that may be entered in the proceeding on the
petitioner’s interest.
10 C.F.R. §2.714(d)(1)(i)-(iii).
When determining whether a petitioner has established the necessary
‘‘interest’’undersubsection(d)(1),the Commission haslong lookedforguidance
to judicial concepts of standing.See, e.g., Yankee,CLI-98-21, 48 NRC at
195;Quivira Mining Co.(Ambrosia Lake Facility), CLI-98-11, 48 NRC 1, 5-6
(1998);GeorgiaInstituteofTechnology(GeorgiaTechResearchReactor,Atlanta,
43
Georgia), CLI-95-12, 42 NRC 111, 115 (1995). According to these concepts,
to qualify for standing a petitioner must allege (1) a concrete and particularized
injury that is (2) fairly traceable to the challenged action and (3) likely to be
redressed by a favorable decision.See, e.g., Steel Co. v. Citizens for a Better
Environment,523U.S.83,102-04(1998);Kelleyv.Selin,42F.3d1501,1508(6th
Cir. 1995). These three criteria are commonlyreferredto, respectively,as ‘‘injury
in fact,’’ causality, and redressability. And, as indicated by the Commission in
Yankee,the injury may be either actual or threatened.Yankee,CLI-98-21, 48
NRC at 195 (citing, e.g.,Wilderness Society v. Griles,824 F.2d 4, 11 (D.C. Cir.
1987)). In addition, the Commission has required potential intervenors to show
that their ‘‘injury in fact’’ lies arguably within the ‘‘zone of interests’’ protected
by the statutes governing the proceeding — here, either the AEA or the National
Environmental Policy Act (NEPA).See Yankee,CLI-98-21, 48 NRC at 195-96;
Ambrosia Lake,48 NRC at 6.
An organization may satisfy these standing criteria in either of two ways — to
show organizational standing, based upon the licensing action’s effect upon the
interestofthepetitioningorganizationitself; orto showrepresentationalstanding,
based upon the interest of at least one of its members who has authorized the
organization to represent him or her.See, e.g., Yankee,CLI-98-21, 48 NRC at
195;Georgia Tech,CLI-95-12, 42 NRC at 115. Finally, regarding governmental
participation, 10 C.F.R. §2.715(c) provides that a presiding officer may offer
states, counties, municipalities, and/or agencies thereof a reasonable opportunity
to participate in a proceeding.
As indicated above, neither the Staff nor Connecticut Yankee opposes the
Petitioners’ standing to proceed in this matter. We likewise find that both
Petitioners have established standing under 10 C.F.R. §2.714. CAN included
with its petition three affidavits of members who own property abutting or near
the Haddam Neck plant site. In these affidavits it is alleged that the health
and safety of CAN members would be affected by, for example, contamination
through drinking water taken from a well close to the site and through continuing
exposure to radioactive waste both above- and belowground, and that property
values would be affected. We conclude that these affidavits demonstrate that
the proposed license amendment could cause the requisite injury in fact to CAN
members,withintheAEAorNEPAzoneofinterests,thatwouldberedressableby
a favorable decision in this proceeding.See Yankee,CLI-98-21, 48 NRC at 208.
Likewise, we conclude that CDPUC, as a State agencyresponsible for overseeing
the health, safety, environmental, and economic interests of local citizens who
live, work, and travel near the site, has shown the requisite redressable injury
within the zone of interests sought to be protected by the AEA or NEPA.
44
B. Contentions
Both Petitioners have submitted a number of contentions. To be admitted as
litigable in this proceeding,each must address a subject that falls within the scope
of an LTP proceeding as defined by the Commission, and meet the contention
requirements of 10 C.F.R. §2.714.
1. Scope of LTP Proceeding
AstheCommissionnotedin Yankee,CLI-98-21,48NRCat196,theprovisions
of 10 C.F.R. §50.82(a)(9)and (10), which the Commission promulgatedin 1996,
obligealicenseewhoisdecommissioningapowerreactortofileanLTPintheform
of a license amendment application. The Commission found it ‘‘appropriate,’’
regardless of legal mandates, ‘‘to use the amendment process for approval of
termination plans, including the associated opportunity for a hearing, to allow
public participation on the specific actions required for license termination.’’
See Final Rule, ‘‘Decommissioning of Nuclear Power Reactors,’’ 61 Fed. Reg.
39,278, 39,289 (July 29, 1996). A licensee may file the LTP either prior to or
concurrently with a license termination request.See Yankee,CLI-98-21, 48 NRC
at 196.
Section 50.82(a)(9) provides in relevant part:
All power reactor licensees must submit an application for termination of license. The
application fortermination oflicense mustbeaccompanied orpreceded byalicense termination
plan to be submitted for NRC approval.
....
(ii) The license termination plan must include—
(A) A site characterization;
(B) Identification of remaining dismantlement activities;
(C) Plans for site remediation;
(D) Detailed plans for the final radiation survey;
(E) A description of the end use of the site, if restricted;
(F) An updated site-specific estimate of remaining decommissioning costs; and
(G) A supplement to the environmental report, pursuant to §51.53, describing any new
information or significant environmental change associated with the licensee’s proposed
termination activities.
10 C.F.R. §50.82(a)(9)(ii). Section 50.82(a)(10) establishes the following
standard for Commission approval of an LTP:
If the license termination plan demonstrates that the remainder of decommissioning activities
[1] will be performed in accordance with the regulations in this chapter, [2] will not be inimical
to the common defense and security or to the health and safety of the public, and [3] will not
have asignificant effect onthe quality ofthe environment and after notice to interested persons,
the Commission shall approve the plan, by license amendment, subject to such conditions and
45
limitations as it deems appropriate and necessary and authorize implementation of the license
termination plan.
10 C.F.R. §50.82(a)(10).
An LTP proceeding such as the instant one is ‘‘confined to a review of the
matters specified in 10 C.F.R. §50.82(a)(9) and (10), such as the plans for site
remediation and for the final radiation survey.’’See Yankee,CLI-98-21, 48 NRC
at 201. The scope of the proceeding is ‘‘coextensive with the . . . LTP itself’’
and, further, is ‘‘defined solely by the terms of 10 C.F.R. §50.82(a)(10), as read
in light of the filing requirements of 10 C.F.R. §50.82(a)(9)(ii)(A)-(G).’’Id.at
204-05. In adoptingthe requirementsfor the LTP, the Commission stated that the
LTP is necessary ‘‘because the NRC must make decisions ...regarding(1)...
adequate funds, (2) radiation release criteria . . . , and (3) adequacy of the final
survey required to verify that these release criteria have been met.’’ 61 Fed. Reg.
39,279,39,289(July 29, 1996). Some subjects, including spentfuel management,
are off-limits in such a proceeding.See Yankee,CLI-98-21, 48 NRC at 201,
203-05.
AnLTPisnot,however,just‘‘akindofhortatorydocument,withoutimportant
effects,’’ for this ‘‘would defeat the carefully crafted process’’ established by the
Commission through the above-quoted rules.See id.at 205. The LTP approval
processhas‘‘atleastoneimportantfutureconsequence...whichmust be
litigated now or never.. . . [It] is Petitioners’ one and only chance to litigate
whether the survey methodology is adequate to demonstrate that the site [will
ultimately be]brought to a condition suitable for license termination.’’See id.
at 206-07 (emphasis added). For, as the Commission noted in Yankee,10 C.F.R.
§50.82(a)(11)provides only that:
The Commission shall terminate the license if it determines that—
(i) The remaining dismantlement has been performed in accordance with the approved
license termination plan, and
(ii) The terminal radiation survey and associated documentation demonstrates that the
facility and site are suitable for release in accordance with the criteria for decommissioning in
10 CFR part 20, subpart E.
CLI-98-21, 48 NRC at 206 n.9.
Finally, according to the Commission, the purpose of the LTP process is ‘‘to
ensure that the property will be left in such a condition that nearby residents . . .
can frequent the area without endangering their health and safety.’’Id.at 208.
2. Contention Requirements
WiththeCommission’sguidanceonthescopeandpurposeofLTPproceedings
in mind,we turnnextto the standardswe must applyin rulingonthe admissibility
46
of the contentions proffered by the Petitioners, which are defined in 10 C.F.R.
§2.714 and provide in relevant part as follows:
(b)(2) Each contention must consist of a specific statement of the issue of law or fact to be
raised or controverted. In addition, the petitioner shall provide the following information with
respect to each contention:
(i) A brief explanation of the bases of the contention.
(ii) A concise statement of the alleged facts orexpert opinion which support the contention
and on which the petitioner intends to rely in proving the contention at the hearing, together
with references to those specific sources and documents of which the petitioner is aware and
on which the petitioner intends to rely to establish those facts or expert opinion.
(iii) Sufficient information (which may include information pursuant to paragraphs
(b)(2)(i) and (ii) of this section) to show that a genuine dispute exists with the applicant
on a material issue of law or fact. This showing must include references to the specific portions
of the application (including the applicant’s environmental report and safety report) that the
petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes
that the application fails to contain information on a relevant matter as required by law, the
identification of each failure and the supporting reasons for the petitioner’s belief. On issues
arising under the National Environmental Policy Act, the petitioner shall file contentions
based on the applicant’s environmental report. The petitioner can amend those contentions or
file new contentions if there are data or conclusions in the NRC draft or final environmental
impact statement, environmental assessment, or any supplements relating thereto, that differ
significantly from the data or conclusions in the applicant’s document.
....
(d) . . . [A] ruling body or officer shall, in ruling on—
....
(2) The admissibility of a contention, refuse to admit a contention if:
(i) The contention and supporting material fail to satisfy the requirements of paragraph
(b)(2) of this section; or
(ii) The contention, if proven, would be of no consequence in the proceeding because it
would not entitle petitioner to relief.
The failure of a contention to comply with any one of these requirements is
grounds for dismissing the contention.Arizona Public Service Co.(Palo Verde
Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56
(1991).
The Statement of Considerations (SOC) for the 1989 amendments to the
contention requirements, which explains the Commission’s basis for, and
interpretation of, the regulatorylanguage quoted above, provides useful guidance
on the proper application of the requirements — guidance that is entitled to
‘‘special weight.’’Long Island Lighting Co.(Shoreham Nuclear Power Station,
Unit 1), ALAB-900, 28 NRC 275, 290-91 (1988),review declined,CLI-88-11,
28 NRC 603 (1988). In the SOC, the Commission noted that the requirement at
subsection (b)(2)(ii) above ‘‘does not call upon the intervenor to make its case at
this stage of the proceeding, but rather to indicate what facts or expert opinions,
be it one fact or opinion or many, of which it is aware at that point in time which
47
providethebasisforitscontention.’’54Fed.Reg.33,168,33,170(Aug.11,1989)
(emphasis added). The Commission quoted the following language from Duke
Power Co.(Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460,
468 (1982),vacated in part on other grounds,CLI-83-19, 17 NRC 1041 (1983):
[A]n intervention petitioner has an ironclad obligation to examine the publicly available
documentary material pertaining to the facility in question with sufficient care to enable
[the petitioner] to uncover any information that could serve as the foundation for a specific
contention. . . . [N]either Section 189a. of the [Atomic Energy] Act nor Section 2.714 of the
Rules of Practice permits the filing of a vague, unparticularized contention,followed by an
endeavor to flesh it out through discovery against the applicant or staff.
54 Fed. Reg. at 33,170 (emphasis added). The SOC also contains the following
statements:
The new rule will require that a petitioner include in its submission some alleged fact or facts
in support of its position sufficient to indicate that a genuine issue of material fact or law
exists....
....
[T]he presiding officer shall not admit a contention to the proceeding if the intervenor fails
to set forth the contention with reasonable specificity or establish a basis for the contention.
In addition, the contention will be dismissed if the intervenor sets forth no facts or expert
opinion on which it intends to rely to prove its contention, or if the contention fails to establish
that a genuine dispute exists between the intervenor and the applicant . . . . [T]he use of this
standard forthe admissionofcontentions hadbeen supported bythe Federal courts innumerous
instances.Vermont Yankee Nuclear Power Corp. v. NRC,435 U.S. 519 (1978);Independent
Bankers Ass’n v. Board of Governors,516 F.2d 1206 (D.C. Cir. 1975);Connecticut Bankers
Ass’n v. Board of Governors,627 F.2d 245 (D.C. Cir. 1980). The court in the latter case
emphasized that ‘‘a protestant does not become entitled to an evidentiary hearing merely on
request, or on a bald or conclusory allegation that such a dispute exists.The protestant must
make a minimal showing that material facts are in dispute, thereby demonstrating that an
‘inquiry in depth’ is appropriate.’’ 627 F.2d at 251. The Commission’s rule is consistent with
these decisions.
. .. TheCommission expects that atthe contention filing stage the factual support necessary
to show that a genuine dispute exists need not be in affidavit or formal evidentiary form and
need not be of the quality necessary to withstand a summary disposition motion.At the
summary disposition stage the parties will likely have completed discovery and essentially
will have developed the evidentiary support for their positions on a contention. Accordingly,
there is much less likelihood that substantial new information will be developed by the parties
before the hearing. Therefore, the quality of the evidentiary support provided in affidavits at
the summary disposition state is expected to be of a higher level than at the contention filing
stage.
Id.at 33,170-71 (emphasis added).
The Commission has also stated that Petitioners
mustdevelop afact-based argument thatactually andspecifically challenges theapplication. ...
[A]contention‘‘thatfailsdirectlytocontrovertthelicenseapplication...issubjectto
48
dismissal.’’ ...Moreover,...itisnotunreasonabletoexpectapetitioner to provide
additional information corroborating the existence of an actual safety problem. Documents,
expert opinion,or at least a fact-based argument are necessary.
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11,
49 NRC 328, 341-42 (1999) (emphasis added) (quoting Private Fuel Storage,
L.L.C.(Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142,
181 (1998)). The Commission continued:
It is surely legitimate for the Commission to screen out contentions of doubtful worth and
to avoid starting down the path toward a hearing at the behest of Petitioners who themselves
have no particular expertise — orexpert assistance — and no particularized grievance, but are
hoping something will turn up later as a result of NRC Staff work.
Oconee,CLI-99-11, 49 NRC at 342.
It is the petitioner’s obligation to formulate a contention and provide the
information necessary to satisfy the basis requirement of the rule.Duke Energy
Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-98-17, 48 NRC 123, 125
(1998);see also Statement of Policy on Conduct of Adjudicatory Proceedings,
CLI-98-12,48NRC 18, 22(1998). Merereferenceto documentsdoesnotprovide
an adequate basis for a contention.Baltimore Gas & Electric Co.(Calvert Cliffs
NuclearPowerPlant,Units1and2),CLI-98-25,48NRC325,348(1998).Finally,
contentions are necessarily limited to issues that are germane to the application
pending before the Board,Yankee,CLI-98-21, 48 NRC at 204 n.7, and are not
cognizable unless they are material to matters that fall within the scope of the
proceeding for which the licensing board has been delegated jurisdiction as set
forth in the Commission’s notice of opportunity for hearing.Public Service Co.
of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316,
3 NRC 167, 170-71 (1976);see also Commonwealth Edison Co.(Zion Station,
Units 1 and 2), ALAB-616, 12 NRC 419, 426-27 (1980);Commonwealth Edison
Co.(Carroll County Site), ALAB-601, 12 NRC 18, 24 (1980).
3. Rulings on Contentions
The Petitioners’ contentions fall into several broad categories: General
Contentions, and Contentions Relating to Site Characterization, Work Scope,
Dose Calculations, Water Contamination, and Rubblization. We address the
Petitioners’ contentions according to these categories. We note also the recurring
theme, referenced above, of the degree of detail and specificity that is required
in an LTP, both generally and in various particulars. The merits of particular
challenges to the LTP in this regard are discussed in the context of our rulings on
the contentions in which they are made. The general thrust of this argument is
crystallized in the first of three ‘‘general’’ contentions, CDPUC Contention IV.
49
GENERAL CONTENTIONS
a. CDPUC Contention IV: Degree of Detail and Specificity Required in an
LTP, Quality Control, Isolation and Control
CDPUC Contention IV states as follows:
The LTP lacks the specificity required to be used as a baseline for evaluating Connecticut
Yankee’s decommissioning performance.
Connecticut Department of Public Utility Control’s Amended and Supplemented
Petition to Intervene and Request for Hearings (Mar. 12, 2001) at 19 [hereinafter
CDPUC Contentions]. Arguing that ‘‘[o]ne fundamental purpose of the LTP
shouldbetoprovideadetailedroadmapfordecommissioningthattheCommission
can use to determine whether Connecticut Yankee’s Part 50 license may be
terminated,’’ Connecticut asserts that, ‘‘[i]f it is to serve any useful function, the
LTP must be modified to specify measurable criteria and standards that can be
applied to verify the licensee’s performance.’’Id.
During oral argument on this contention, CDPUC narrowed this contention to
the last two of seven areas originally listed in support of the contention, relying
on the requirement at 10 C.F.R. §50.82(a)(9)(ii)(D) that an LTP must include
‘‘[d]etailed plans for the final radiation survey.’’ Tr. 18-21. These two areas
involve parts of section 5 of the LTP, on the ‘‘Final Status Survey Plan,’’ relating
to quality assurance and control, and isolation and control measures.
CDPUC asserts that the quality control section of the LTP is insufficient in
its suggestion that document control and inspection procedures will be written
or delineated, and its failure to specify the criteria for selecting such procedures
(citing LTP §5.10, at 5-47). CDPUC further asserts that the LTP’s description
of isolation and control measures is insufficient in its failure to specify what
measures will be used in outdoor areas, how the Licensee will prevent excavated
contaminated soil from disbursing through air or rain runoff, or how activated
rebar in concrete will be removed without permitting flakes and parts of the rebar
to spread to noncontaminated areas (citing LTP §5.4.5). CDPUC Contentions at
20.
With regard to its quality assurance and quality control (QA/QC) plan,
CYAPCO argues that it already operates under an approved QA/QC program,
which is referencedin the LTP andwhich applies to license terminationactivities.
Although counsel was not certain of the degree to which the plant QA/QC plan
might have changed as a result of the plant shutting down, the LTP at page 5-45
does refer to this program and assert that it complies with the requirements set
forth in Appendix B of 10 C.F.R. Part 50. Tr. 29, 32-33.
In response, CDPUC points out that, in addition to the document control and
inspection subsections of the QA/QC part of the LTP indicating respectively
50
that ‘‘procedures will be written to control the FSS performance’’ and that
‘‘[i]nspections and verification activities will be delineated in implementing
procedures,’’ the ‘‘Quality Assurance Program’’ section states that ‘‘[t]o support
the FSS, quality assurance project plans as well[ ] as Data Quality Objectives[ ]
will be developed.’’ LTP at 5-46, 5-47. CDPUC argues that this indicates that
somethingdifferentfrom the AppendixB programwill be developed,and queries
what the basis, criteria, and guidelines for such procedures, activities, plans, and
objectives would be. Tr. 67-68.
With regardto isolationandcontrolmeasures,CYAPCO arguesthat‘‘[d]uring
the final stages of decommissioning [these are] out of scope.’’ Tr. 34. Asserting
that a released area is treated just like any area outside the plant boundaryandthat
the final status survey will be done incrementally, CYAPCO argues that issues of
keeping dust and runoff from spreading from one area to another are controlled
by existing plant procedures not unique to the LTP. Tr. 35-37. On what the
LTP actually states, CYAPCO refers to a ‘‘menu of the techniques that can be
used.’’ Tr. 37-38. The techniques listed in section 5.4.5 of the LTP (on ‘‘Area
Preparation: Isolation and Control’’) include:
•a combination of personnel training, physical barriers and postings, as appropriate, to
prevent unauthorized access to an isolated area;
•implementation of provisions to prevent the introduction of plant-related radioactive
material by persons authorized to enter the area; and
•measures to prevent the introduction of plant-related radioactive material through the air
or through other paths, such as systems or piping.
LTP §5.4.5, at 5-8.
CDPUCchallengesthelanguageintheLTPasprovidingnousefulinformation
abouthowrecontaminationwillbepreventedinareasreadyforfreereleasebefore
work in surrounding areas has been completed, and notes that the Staff has also
indicated concern about the lack of detail in this section of the LTP. Tr. 68-69.
With regard to what balance should be struck between enough detail not to
jeopardize safety, but not so much detail that the licensee would be burdened
in doing a satisfactory job of license termination activities, CYAPCO argues
that ‘‘the degree of methodological rigidity that should be demanded in an LTP
[should be] limited to those items where the LTP is unique, where we are not
doing activities that we’ve been doing for 30 years ...forwhichthereare
both existing requirements, and existing procedures.’’ Tr. 41. Referring to the
final status survey methodology, CYAPCO gives as examples how samples are
selected, what the ‘‘pass/fail rate’’ will be, how to ‘‘deal with spikes,’’ and the
sorts of statistical tests that are applied.Id.
51
The Staff did not take a position with regard to this contention as limited
during oral argument, other than to make the procedural suggestion discussed in
the Background section above.
RULING: CDPUC CONTENTION IV
We find that Contention IV as narrowed during oral argument, while raising a
significantsubstantiveissue(thelevelofdetailandspecificityrequiredinanLTP)
that has merit with regard to certain of the contentions discussed below, does not
itselfprovidesupportingfactsorexpertopinionrelatingtothoseareasstill atissue
with regard to this contention so as to render the contention admissible under 10
C.F.R. §2.714(b)(2)(ii). In one sense, we recognize an arguable insufficiency of
procedures that ‘‘will be written,’’ activities that ‘‘will be delineated,’’ plans and
objectives that ‘‘will be developed,’’ and of the provisions quoted above from
section 5.4.5 of the LTP relating to recontamination,as meeting the requirements
of section 50.82(a)(9)(ii)(D)for ‘‘[d]etailed plans for the final radiation survey.’’
However, section 2.714(b)(2)(ii) requires that a petitioner provide a ‘‘concise
statement of the alleged facts or expert opinion which support the contention . . .
together with references to those specific sources and documents of which the
petitioner is aware and on which the petitioner intends to rely to establish those
facts or expert opinion.’’See 10 C.F.R. §2.714(b)(2)(ii). We conclude that more
is required in this regard than mere reference to the LTP itself. The Petitioners
have provided such facts and/or expert opinion, sources, and documents with
regard to other contentions, explaining or demonstrating the significance, for
example, of omissions asserted to be in violation of the LTP regulations quoted
above. CDPUC hasnotdoneso with regardto its ContentionIV, andwe therefore
conclude that this contention is inadmissible for failure to comply with 10 C.F.R.
§2.714(b)(2)(ii).2
b. CAN Contention 7.1: Spent Fuel, High-Level Waste Storage and
Handling
CAN Contention 7.1 states as follows:
Contrary to the Commission’s decision to exclude discussion of high-level waste storage and
handlingduringanLTPproceeding, CANcontendsthatthereisconflictwithinNRCregulations
concerning this matter. The presence of high-level radioactive waste at decommissioning
reactors raises serious health and safety issues that are orphaned unless they can be addressed
as an aspect before the Board in this case.
2 As suggested by Staff Counsel, the ultimate version of the LTP that is produced in the process of the Staff
evaluating the additional information provided by the Licensee in response to the RAIs, and then issuing the SER,
may lead to the submission of late-filed contentions on subjects including quality assurance/control and isolation
and control, which would be ruled on according to the provisions of 10 C.F.R. §2.714(a)(1), (b)(2), and (d)(2).
52
CitizensAwarenessNetwork’sContentions(Mar.12,2001),at66-67(hereinafter
CAN Contentions).
RULING: CAN CONTENTION 7.1
As acknowledged in Contention 7.1, the Commission has stated that the
omissionofanyreferencetospent fuel(high-levelwaste) managementin theLTP
rules quoted above was ‘‘intentional,’’ and this issue is ‘‘beyond the scope of [an
LTP] proceeding.’’Yankee,CLI-98-21, 48 NRC at 205. Therefore, we rule that
CAN Contention 7.1 is not admissible.
3
c. CAN Contention 7.2: Recontamination of Released Areas
CAN Contention 7.2 raises an issue very similar to the isolation and control
example provided by CDPUC in its Contention IV, namely:
CYAPCO’s LTP lacks appropriate methodology to assure that portions of the site released
for unrestricted use will not be re-contaminated during ongoing decommissioning and site
remediation. Contrary to 10 CFR 50.82, the phased removal of land parcels and/or buildings
from CYAPCO’s Part 50 license as presented in the LTP can result in doses in excess of 10
CFR Part 20 Subpart E requirements.
CAN Contentions at 70. CAN challenges the LTP’s proposed ‘‘phased release
approach’’ to decommissioning (citing LTP at 1-8) as untested and potentially
dangerous in the event of undocumented recontamination of released property,
as well as the LTP’s lack of a ‘‘methodology to establish control mechanisms to
ensure ‘clean’ areas are not recontaminated.’’ CAN Contentions at 70-71. The
LTP’s ‘‘[m]ereallusion’’(at 1-8)to the Licensee’splan for the finalstatus survey
report to contain ‘‘an evaluation of the potential for possible recontamination of
the area and a description of controls in place to prevent such recontamination’’
is, CAN argues, not a ‘‘sufficient basis to find that the LTP will assure protection
of public health and safety within the requirementsof NRC regulationsat 10 CFR
50.82 and 10 CFR Part 20 Subpart E.’’Id.
CAN expresses a concern that, in view of CYAPCO’s historical record
with regard to ‘‘losing control of their radiological materials,’’ the issue of
recontaminationofreleasedpartsofthesitetakesonadditionalimportance.Tr.80.
CANalsorefersinthebasisforContention7.2tothelikelihoodofrecontamination
3 As noted by the Commission with regard to Yankee Atomic,should a licensee such as CYAPCO determine that
it wishes to operate an independent spent fuel storage installation (ISFSI)after its Part 50 license is terminated, it
must ‘‘first obtain a site-specific ISFSI license under section 72.40 of [NRC] regulations — a process that requires
safety and environmental reviews and provides the public an opportunity to seek a hearing on the underlying license
application.’’Yankee,CLI-98-21, 48 NRC at 212. For now, CYAPCO ‘‘would be entitled under its current [Part 50]
license and under Part 72 of [NRC] regulations to proceed with onsite dry cask storage in Commission-approved dry
casks.’’Id.
53
‘‘through ongoing decommissioning activities, weather conditions (e.g. wind,
rain, etc) and groundwater movement,’’ CAN Contentions at 71, and to EPA
expressions of concern about the need for precautions ‘‘to assure that the parcel
released early does not become recontaminated.’’Id.at 71 n.181.
CAN notes that there is presently no rule governing partial site releases,
although there is a Staff Requirements Memorandum(SRM) for SECY-00-0023,
‘‘RulemakingPlan to Standardize the Process for Allowing a Licensee to Release
PartofItsReactorFacilityorSiteforUnrestrictedUseBeforeReceivingApproval
of Its License Termination Plan’’ (Feb. 2, 2000), as well as ‘‘NRC Regulatory
Issue Summary 2000: Partial Release of Reactor Site for Unrestricted Use Before
NRC Approval of License Termination Plan’’ (Oct. 24, 2000). CAN Contentions
at 71 n.180.
CYAPCO responds that CAN Contention 7.2 must be excluded, because tech-
niques to prevent the dispersion of contamination as a result of decontamination
activities are ‘‘neither new nor particularly difficult.’’ Response of Connecticut
Yankee to Supplement to Petition to Intervene: Proposed Contentions of CAN
(hereinafter CYAPCO Response to CAN Contentions) (April 2, 2001) at 41.
CYAPCO argues that ‘‘[a]ssuring [that such techniques] are effectively applied
is a matter of post-LTP-approvalimplementationand Staff inspection.’’Id.at 42.
CYAPCO alsoarguesthatthecontentionfailstomeetthespecificityrequirements
of10C.F.R.§2.714(b)—and,inresponsetoquestioning,defineditsviewofwhat
would satisfy such specificity requirements by stating, ‘‘[e]nough description of
what should be added to the LTP that . . . I can hand it to an engineer and say, go
out and give me that.’’ Tr. 96.
The Staff responds to Contention 7.2 by asserting that CAN ‘‘provides no
support for the allegation that phased removal of land parcels may result in
doses exceeding 10 C.F.R. Part 20, Subpart E limits.’’ NRC Staff’s Response to
Contentions Filed by Citizens Awareness Network and the Connecticut Depart-
ment of Public Utility Control (April 2,2001), at 21 (hereinafter Staff Response
to Contentions). Asserting that specific areas of the site ‘‘may be removed
from the license only after approval of the LTP, completion of the final status
survey and compilation of the final status survey report to address the area or
building in question,’’ the Staff states that ‘‘[i]n all respects, therefore, release
of a portion of the site will only occur after compliance with all applicable reg-
ulatory requirements,’’ and that, ‘‘[a]s provided in 10 C.F.R. §50.82(a)(11)(ii),
the Commission will only terminate a license if it determines that the terminal
radiation survey and associated documentation demonstrate compliance with the
site release criteria in . . . Subpart E.’’Id.In addition, the Staff indicates that a
54
proposed rulemaking on this matter is currently being developed.
4 May 4, 2001,
Letter from Staff Counsel Clark and Rafky to Administrative Judges. The Staff
argues that ‘‘CAN’s desire to impose additional regulatory requirements and
guidance on this process cannot be redressed in this proceeding.’’ Staff Response
to Contentions at 21.
RULING: CAN CONTENTION 7.2
We findthat CAN in Contention7.2 has, like CDPUC in ContentionIV, raised
a significant issue. As with CDPUC Contention IV, in one sense we note the
arguable insufficiency, as ‘‘[d]etailed plans for the final radiation survey,’’ of
the LTP’s plan for the final status survey report to contain ‘‘an evaluation of the
potential for possible recontamination of the area and a description of controls
in place to prevent such recontamination,’’ LTP §1.4.2.1 at 1-8 (as well as of
the LTP’s section 5.4.5 measures quoted above in the discussion of CDPUC
Contention IV).See 10 C.F.R. §50.82(a)(9)(ii)(D). And we find CYAPCO’s
responseassertingthe lackofanything‘‘new’’in the contention,anditsargument
to the effect that the contention fails to meet the specificity requirements of 10
C.F.R.§2.714(b)byvirtueofitsfailuretodescribewhattheLTPshouldcontainin
sufficientdescriptivedetailforanengineertouseitasaworkingplan,togofarther
than the rule requires.See, e.g., Duke, Cogema, and Stone & Webster (Savannah
River Mixed Oxide Fuel Fabrication Facility), CLI-01-13, 53 NRC 478 (2001).
In this recent order, the Commission, in a different context but one in which the
same principles with regard to admissibility of contentions would apply, noted
that ‘‘[c]ontentions must be based on information (or the alleged lack thereof)’’
contained in the pertinent documents.Id.at 483 n.2. Although petitioners must
refertospecificpartsofanapplication,theCommission’sreferencetoan‘‘alleged
lack’’ of information suggests that it is not required that petitioners in addition
provide their own detailed alternative of what should fill in the ‘‘gap.’’
We find the Staff’s written Response to Contention 7.2, asserting a lack of
support for the contention’s allegation of possible doses exceeding Subpart E,
apparently in reliance on 10 C.F.R. §2.714(b)(2)(ii), to be more persuasive, but
are less persuaded by its arguments relating to redressibility for what it terms
‘‘CAN’s desire to impose additional regulatory requirements and guidance’’ not
encompassed in the LTP rule, and to the effect that assurances that the Subpart
E dose requirements are met will be provided by the process that occurs after
the LTP is approved, when the Commission determines whether to terminate the
license under 10 C.F.R. §50.82(11). Although adding requirements not part of a
4 CYAPCO has argued, as it has with CDPUC Contention IV,that parts of sites can be released already, without
reference to the license termination process. This would, according to CYAPCO Counsel, require a plant to meet the
requirements of NRC Regulatory Guide 1.86. Tr. 88-89. According to Staff Counsel, however, Regulatory Guide
1.86 is no longer in effect, and the new rule on partial releases will govern the subject. Tr. 90.
55
rule — as reasonably interpreted — is unarguably inappropriate and unjustified,
CAN’s assertion that the LTP lacks ‘‘appropriate methodology’’ to assure no
recontaminationofreleasedpartsofthe site (thatcouldresultin dosesin excessof
SubpartErequirements)goestotheheartofwhattheCommissionsaysoftheLTP
process— namely,thatit is the‘‘oneandonlychance[for petitioners themselves]
to litigate whether the survey methodology is adequate to demonstrate that the
site [will ultimately be]brought to a condition suitable for license termination,’’
see Yankee,CLI-98-21, 48 NRC at 206-07 (emphasis added), and would seem to
be relevant to the health and safety requirements of 10 C.F.R. §50.82(a)(10).
The difficulty with CAN Contention 7.2 is, however, as with CDPUC Con-
tention IV, in how well it satisfies the requirement of 10 C.F.R. §2.714(b)(2)(ii)
that a petitionermust provide‘‘[a]concise statement of the alleged facts or expert
opinion which support the contention and on which the petitioner intends to
rely . . . .’’ The references to possible recontamination through various routes or
mechanisms, and to EPA’s expression of concern, provide thin support for the
contention. Moreover, even recognizing the sense in which some parts of the
LTP appear to be arguably insufficient as section 50.82(a)(9)(ii)(D) ‘‘[d]etailed
plans for the final radiation survey,’’ CAN’s assertion that there could or would
likely be recontamination of released areas of the plant site is directly tied to
its allegation that there would be sufficient recontamination to violate 10 C.F.R.
Part 20, Subpart E requirements. For this, CAN has provided no expert opinion,
and we conclude that the asserted facts that CAN has provided are inadequate to
support the contention as required by 10 C.F.R. §2.714(b)(2)(ii).
As with our ruling on CDPUC IV, it may be that, after the Staff completes its
evaluation of information provided in response to its RAIs and issues the SER,
a late-filed contention addressing this issue more specifically might be admitted,
provided it met the requirements of 10 C.F.R. §2.714(a)(1), (b)(2), and (d)(2).
Further guidance may also be provided through the rulemaking on partial site
releases, depending upon its timing.
Nonetheless, based on the information provided by CAN in support of
Contention 7.2, we rule it to be inadmissible.
CONTENTIONS RELATING TO SITE CHARACTERIZATION
d. CDPUC Contention I.A: Adequacy of Site Characterization, Historical
Site Assessment
CDPUC I.A is one of a series of contentions from both Petitioners on the issue
of the adequacy of the LTP’s site characterization, in various particulars. These
include CDPUC Contentions I.A through I.F, CAN Contentions 1.1 through 1.5,
and CAN Contentions 3.1 and 3.2. CDPUC Contention I.A states as follows:
56
The Site Characterization in the LTP Is Inadequate and Must Be Extensively Supplemented
and Modified.
A. The LTP Does Not Include a Satisfactory Historical Site Assessment Report and
Must Be Amended to Include a Comprehensive Report of Historical Contamination
Events.
CDPUCContentionsat3. NotingthattheLTPrefersatpage2-2toaJanuary2000
‘‘HistoricalSite Assessment’’(HSA) report,CDPUC asserts thatthisreportis not
part of the LTP and has not been made available.Id.CDPUC further asserts that
a ‘‘Characterization Report’’ referenced at page 2-39 of the LTP does not satisfy
the guidance in NUREG-1700 and -1727, despite including some ‘‘sketchy’’
historical information.
5 Id.At oral argument, CDPUC clarified that it was not
suggesting that in every case an historical site assessment report is required, but
that in this case it should be required. Tr. 104. Arguing that ‘‘[t]he public
record of contamination at Connecticut Yankee makes it even more important
that the licensee include a comprehensive,systematic assessment of the history of
spills and other possible contamination events in the LTP,’’ and that, ‘‘[b]ecause
of the extensive history of unplanned releases at the Haddam Neck plant, it
is impossible to assess Connecticut Yankee’s site characterization without an
explicit identification of the informationon which it is based,’’ CDPUC contends
that the two reports ‘‘must be an integral part of the LTP.’’ CDPUC Contentions
at 4-5;see also Tr. 104-06. Also in support of Contention I.A, CDPUC refers to
the findings of an Administrative Law Judge of the Federal Energy Regulatory
Commission (FERC) on the manner and impacts of CYAPCO’s handling of
radiological materials, and has provided various documents that were exhibits in
the FERC proceeding. CDPUC Contentions at 3-5, Attachments 3, 4, 6, 13.
6
Both CYAPCO and the Staff oppose the admission of this contention, arguing
that NUREGs are not a proper basis for a contention and that the contention
is unsupported. Response of Connecticut Yankee to Supplement to Petition to
Intervene: Proposed Contentions of the State of Connecticut (April 2, 2001) at
5-6 (hereinafter CYAPCO Response to CDPUC Contentions); Staff Response to
Contentions at 22. CYAPCO asserts as well that NUREG-1727 does not apply
5 This document refers among other things to ‘‘identification of contamination on the hillside east and southeast
of the industrial area,’’ and states that ‘‘[t]here are no known radiological characterization efforts for the southern
extent of Area 9528 or for Area 9532. However, given the topography of the area east of the industrial area, it is
considered unlikely that there would be any radiological impact on these areas from plant operations.’’ CDPUC
Contentions, Attachment 2 at 2.6 These documents include: a three-page ‘‘Historical Site Assessment Data Table’’ (Attachment 3); a one-
page report entitled, ‘‘Discovery of Radioactive Contamination (115 KV yard; Area East of Discharge Canal)’’
(Attachment 4); a 42-page April 1980 report of CYAPCO entitled ‘‘Investigation of the Source of the Radioactive
Contamination Found on the Connecticut Yankee Site March 10-30, 1980,’’in which, among other things, two
instancesof contamination at levels ‘‘slightly above that allowable by NRC regulations in nonradiological controlled
areas’’ are noted and there are references to material being released out the stack, CDPUC Contentions, Attachment
6 at CY0015488, CY0015513 (Attachment 6); and an 11-page ‘‘preliminary CY site characterization’’ (Attach-
ment 13).
57
to LTPs submitted under section 50.82(a)but rather to decommissioning plans
submitted by nonreactorlicensees under section 50.82(b),and that NUREG-1700
contains no mention of an ‘‘historical site assessment report.’’Id.at 6-7. And
it argues, in a similar manner as it does with regard to many of the proffered
contentions, that ‘‘to require the inclusion of all the data and all the analysis
underlying characterization results in an LTP would [be] nonsensical,’’ since
‘‘the volume of site characterization data, and evaluations of it, fills many filing
cabinets.’’Id.at 5.
The LTP rule does not define ‘‘site characterization.’’ On its view of what a
site characterization involves, CYAPCO provides the following statement:
The site characterization — actually, an initial site characterization, since the site
characterization process continues throughout the process of implementing the LTP and
ultimately merges in the final status survey results — is the process of collecting vast amounts
of data specifically for this process as well as reviewing equally ponderous amounts of
historical data. The results of the initial site characterization are embodied primarily in the
classifications of each area of the site. These results are set forth in the LTP.
The regulation does not require that all of the data collected, reviewed and evaluated for
each of the classification efforts also be reproduced in the LTP. . . .
Id.(emphasis in original). CYAPCO continues:
[W]hat is in issuein an LTPapproval proceeding is the results ofthe initial site characterization
process. A legitimate contention might be that a particular area of the site has not been properly
classified, and given the required specificity and basis, such a contention should be admitted.
However, there is no requirement that the LTP contain all of the data on which the initial
site characterization is based, and there is no requirement that the named reports have been
prepared or be included in an LTP.
Id.at 7. During oral argument, CYAPCO Counsel stated that the ‘‘bottom line
of site characterization is the classifications,’’ and that the two are ‘‘identical.’’
Tr. 120, 123. CYAPCO also notes in a footnote that on November 8, 2000, it
did in fact provide the NRC and the Connecticut Department of Environmental
Protection with copies of a January 6, 2000, site characterization report titled
‘‘Connecticut Yankee Haddam Neck Plant, Characterization Report.’’Id.at 7
n.6.
In response to CYAPCO’s argument with regard to the site characterization
results being embodied in the site classifications (of 1, 2, 3, or nonimpacted)
of each area of the site, CDPUC asserted during oral argument that the site
classifications essentially define how much attention will be given differentareas
in remediation and cleanup activities, with areas classified as ‘‘nonimpacted’’
receiving no surveying at all. Therefore, CDPUC argues, to omit underlying
information on the bases for the classifications will not provide needed
‘‘confidencethat public health and safety will be protected,’’ one of the purposes
58
of the site characterization as stated by the Commission in its 1996 Statement
of Considerations for the LTP rule. Tr. 105-07, 115;see 61 Fed. Reg. 39,278,
39,289 (July 29, 1996). Agreeing that Subpart E permits a certain level of
residual radioactivity on the site after license termination, CDPUC argues that
‘‘the question is whether the Licensee has searched for and found all of the
radiation that is at the site, and has identified that, so that it can be remediated.
And it is our position that if you don’t look for it, you are not likely to find it.’’
Tr. 108-09.
While agreeing during oral argument that ‘‘this historical information is, in
fact,veryimportant...verysignificant,’’theStaffdisagreeswithCDPUCthat
a contention may ‘‘ask[] for this historical site assessment,’’ Tr. 129, at least in
the form of a report, which the regulation does not require, Tr. 138. The Staff
faults the contention for citing only ‘‘generally to past contamination events to
request that an extensive HSA be produced, with no showing of how failure
to produce an HSA will result in a regulatory violation.’’ Staff Response to
Contentions at 22. CDPUC, however, noted at oral argument that what is being
challenged in Contention I.A is not the individual site classifications but the
overallsite characterizationandits lackofanhistoricalsite assessment thatwould
be collected from information to which CDPUC is not privy. Tr. 110.
7
RULING: CDPUC CONTENTION I.A
In ruling on this and all the contentions relating to the adequacy of the
LTP’s site characterization, the first question we must address is very simple and
straightforward:What is a site characterization? A necessarily related questionis:
What must be included in a document in order for it to be considered an adequate
site characterization? As noted above, the LTP rule does not define the term. The
rule does, however, require that the LTP include a site characterization. Thus,
in order to determine whether this requirement of the rule is met, and whether
a contention relating to a site characterization is admissible, it is necessary to
interpret the term, ‘‘site characterization,’’ as it is used in the rule.
Intheabsenceofanyspecificdefinitionintherule,welookfirsttothemeaning
of the language of the provision in question.See Shoreham,ALAB-900, 28 NRC
at 288. In this regard, the dictionary defines the word, ‘‘characterization,’’ as
‘‘the act, process, or result of characterizing,’’ while to ‘‘characterize’’ is ‘‘to
describetheessential characterorqualityof.’’Webster’sThird New International
Dictionary of the English Language 376 (4th ed. 1976). Given the general
nature of this definition, we find it appropriate to seek further guidance in the
Commission’s Statement of Considerations that accompanied publication of the
7 We note CDPUC’s statement at oral argument that CYAPCO has promised to provide an historical site
assessment, which may ultimately render moot this contention, or prompt late-filed contentions challenging the
classifications of specific areas in addition to those already challenged in Contention I.E. Tr. 111, 142.
59
final license termination rule. As noted by CDPUC Counsel, the Commission
commented on the purpose of a site characterization as follows:
The site characterization,description of the remaining dismantlement activities and plans for
site remediation are necessary for the NRC to be sure that the licensee will have adequate
funds to complete decommissioning and that the appropriate actions will be completed by the
licensee to ensure that the public health and safety will be protected.
61 Fed. Reg. 39,278, 39,289 (July 29, 1996) (emphasis added).
Finally, guidance documents of the Commission may also assist in resolving
anyambiguitiesinaregulation’slanguage. Althoughtheydonotcarrythebinding
effectofregulationsorprescriberequirements,sothatnonconformancewiththem
does not equate to noncompliance with regulations,see International Uranium
(USA) Corp.(Request for Materials License Amendment), CLI-00-1, 51 NRC 9,
19 (2000);see also Curators of the University of Missouri,CLI-95-1, 41 NRC
71, 98, 100 (1995), such guidance documents may be consulted in interpreting a
regulation, provided they do not conflict with the plain meaning of the wording
usedin the regulation.Shoreham,ALAB-900,28 NRC at288. Aswas recognized
in the Shoreham case,
NUREG[s] and similar documents are akin to ‘‘regulatory guides.’’ That is, they provide
guidanceforthestaff’sreview, butsetneitherminimumnormaximumregulatoryrequirements.
. . . Where such guidance documents conflict or are inconsistent with a regulation, the latter of
course must prevail. On the other hand, guidance consistent with the regulations and at least
implicitly endorsed by the Commission is entitled to correspondingly special weight.
Shoreham,ALAB-900, 28 NRC at 290 (citations omitted).
Inthisinstance,NUREG-1700,‘‘StandardReviewPlanforEvaluatingNuclear
PowerReactorLicenseTerminationPlans—FinalReport’’(April2000),provides
guidance on what a ‘‘site characterization’’is in the context of an LTP. NUREG-
1700 does not appear to be inconsistent with 10 C.F.R. §50.82(a)(9) and (10).
Therefore,althoughwedonotfindNUREG-1727toberelevantinthisproceeding,
we see no reason not to refer to the guidance NUREG-1700 offers on what a site
characterization consists of and what might be included in one in order for it to
be considered adequate to meet the requirements of section 50.82(a)(9)(ii)(A).
NUREG-1700 states in its introductory Abstract as follows:
This standard review plan (SRP) guides NRC staff in performing safety reviews of license
termination plans (LTPs). Although interested parties can use it for conducting their own
licensing reviews or developing an LTP, the principal purpose of the SRP is to ensure the
quality and uniformity of NRC staff reviews and to present a well-defined base from which to
evaluate the requirements for terminating the license of a nuclear power plant....
60
NUREG-1700 at iii (emphasis added);see also id.at 2. The section of NUREG-
1700 on Site Characterization provides the following guidance:
2. Site Characterization
Sitecharacterization isprovided todetermine theextent andrange ofradioactive contamination
on site, including structures, systems, components, residues, soils, and surface and ground
water. Onthe basis ofthe sitecharacterization,the final surveys areconducted tocover all areas
in which contamination previously existed, remains, or has the potential to remain. The license
should also use the site characterization information to develop input to the dose modeling.
As part of the review, the NRC staff should review the licensee’s site characterization plans
and site records (required under 10 C.F.R. 50.75(g)) to ensure that the site characterization
presented in the LTP is complete and that the data were obtained with sufficiently sensitive
instruments and using proper quality assurance procedures to obtain reliable data applicable to
determining if the site will meet the decommissioning limits. The regulation applicable to this
area of review is 10 CFR 50.82(a)(9)(ii)(A).
Acceptance Criteria
The LTP identifies all locations, inside and outside the facility, where radiological spills,
disposals, operational activities, or other radiological accidents/incidents that occurred and
couldhaveresulted incontamination ofstructures, equipment, laydown areas, orsoils (subfloor
and outside area).
The LTP describes, in a summary form, the original shutdown and current radiological and
non-radiological status of the site.
The LTP site characterization is sufficiently detailed to allow NRC to determine the extent and
range of radiological contamination of structures, systems (including sewer systems and waste
management systems), floor drains, ventilation ducts, piping and embedded piping, rubble,
contamination onandbeneath paved parkinglots, groundwaterandsurface water, components,
residues, and environment, including maximum and average contamination levels and ambient
exposure rate measurements of all relevant areas (structures, equipment, and soils) of the site.
The LTP should identify the survey instruments and supporting quality assurance practices
used in the site characterization program.
TheLTPissufficientlydetailedtoprovidedataforplanningfurtherdecommissioningactivities,
which includes decontamination techniques, projected schedules, costs, waste volumes, dose
assessments (including ground-water assessments), and health and safety considerations.
NUREG-1700 at 6.
CDPUCalsoquotesthefollowinglanguagefromsectionB.5ofNUREG-1700:
Subsurface residual radioactivity is mainly determined by the historical site assessment, with
knowledge of how the residual radioactivity was deposited.
The LTP should contain a summary of the structures and locations at the facility that have not
been impacted by licensed operation and the basis for that conclusion.
For areas that have been impacted by licensed operation, the LTP should contain a summary
of the structures and locations at the facility, including (1) a list or description of each room
or work area within each of these structures; (2) a summary of the background levels used
61
during scoping or characterization surveys; (3)a summary of the locations of contamination
(i.e., walls, floors, wall/floor joints, structural steel surfaces, ceilings, etc.) in each room or
work area; (4) a summary of the radionuclides present at each location, the maximum and
average radionuclide activities in dpm/100cm
2, and, if multiple radionuclides are present,
the radionuclide ratios; (5) the mode of contamination for each surface (i.e., whether the
radioactive material is present only on the surface of the material or if it has penetrated the
material); (6) the maximum and average radiation levels in mrem/hr in each room or work
area; and (7) a scale drawing or map of the rooms or work areas showing the locations of
radionuclide material contamination.
NUREG-1700 at 10; CDPUC Contentions at 3-4.
Although NUREG-1700 is clearly directed toward the Staff’s review of an
LTP, it also provides the Board with guidance on what should be included within
a document or portion thereof in order for it to be considered an adequate ‘‘site
characterization’’under10C.F.R.§50.82(a)(9)(ii)(A),inanadjudicatorycontext,
which was the context in the Shoreham case. Because it is not binding and does
not set ‘‘minimum or maximum regulatory requirements,’’see IUSA,CLI-00-1,
51 NRC at 19;Curators,CLI-95-1, 49 NRC at 98, 100;Shoreham,ALAB-900,
28 NRC at 290, it does not necessarily prevent any party from arguing that other
additional or alternative considerations should be taken into account in making
an ultimate ruling on the merits of a contention relating to the adequacy of
a site characterization. Nevertheless, under the authority of Shoreham, supra,
NUREG-1700 is relevant in determining whether a petitioner has submitted an
admissible contention under 10 C.F.R. §2.714(b)(2).
CDPUC in Contention I.A relies on and quotes from NUREG-1700, and
has asserted as fact an ‘‘extensive history of unplanned releases at the Haddam
Neck Plant’’ and provided various documents relating to prior contamination
events at the plant.
8 See CDPUC Contentions at 2-5, Attachments 1-4, 6, and
13. In addition, CDPUC has in its introduction to all of its contentions referred
to the Staff’s RAIs, including those relating to site characterization.
9 CDPUC
Contentionsat 2. SuchRAIsmayberelevantin theadjudicatoryprocess,andmay
be used to supportcontentions, provided a petitioner does more than just ‘‘rest on
8 Although we do not find the conclusions of the FERC administrative law judge to be relevant in this proceeding,
the documents that were exhibits in the FERC proceeding deal directly with the ‘‘history of unplanned releases’’
that CDPUC relies on in support of Contention I.A, and we find these documents to be relevant sources on which
CDPUC may permissibly rely to establish the fact of such a history.9 The RAIs that the Staff issued on February 1, 2001, include several requests relating to the site characterization,
introduced by language indicating that ‘‘[t]he comments identified below are presented for the purpose of assessing
whether the information presented in the LTP adequately characterizes the radiological conditions of the facility and
site.’’ CDPUC Contentions, Attachment 1 at 2 of Enclosure. The comments that follow this introduction include
among others requests that CYAPCO ‘‘identify ‘all’ locations, inside and outside the facility, where radiological
spills, disposals, operational activities, and other radiological accidents could have resulted in contamination of
structures, equipment, laydown areas, and soils (subfloor and outside area)’’; as well as requests that it describe the
extent and range of radiological contamination of the site in numerous particulars, and ‘‘provide the [Historical Site
Assessment] HSA for review and revise the reference to include this document, given that the HSA is the primary
basis for classifying areas of the site as non-impacted.’’Id.at 3 of Enclosure.
62
their mere existence.’’See Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear
Power Plant, Units 1 and 2), CLI-98-25,48 NRC 325, 350 (1998),aff’d, National
Whistleblower Center v. Nuclear Regulatory Commission,208 F.3d 256 (D.C.
Cir. 2000),cert. denied,121 S. Ct. 758 (2001);see also Oconee,CLI-99-11, 49
NRC at 338. CDPUC’s factual assertions and supporting documents, along with
itsrelianceonNUREG-1700,illustratethatCDPUChasdonemorethanjust‘‘rest
on the mere existence’’ of the Staff RAIs, or, for that matter, on NUREG-1700.
We conclude that Petitioner CDPUC has provided the necessary explanation
of the bases of ContentionI.A;sufficientfacts, sources, and documentsto support
the contention; sufficient information to show that a genuine dispute exists with
CYAPCO on whether the LTP is adequate in its site characterization under 10
C.F.R. §50.82(a)(9)(ii)(A)with regard to its historical site assessment and report
of historical contamination events; sufficient identification of the asserted failure
of the LTP to ‘‘contain information on a relevant matter as required by law’’;
and sufficient ‘‘supporting reasons for the petitioner’s belief’’ in this regard, to
render the contention admissible. Although the text of the contention, which
asserts an ‘‘extensive history of unplanned releases at the Haddam Neck plant,’’
does not set forth these past events in specific detail, the supporting documents
provided by CDPUC certainly do this, including as they do a detailed list of
events, an investigation report, and other forms of event reports. And it is clear
that Petitioner CDPUC is asserting a failure of the LTP to contain information
required by the relevant regulatory section, on which issue there is a genuine
dispute with CYAPCO.
We note the assertion of the Staff and CYAPCO that there is no explicit
requirement in the rule for a site characterization to contain a comprehensive
report of historical contamination events. The Staff’s and Applicant’s view is
taken to be that, since there is no specific mention of the words ‘‘Historical
Site Assessment Report’’ in the regulation, such a report is not part of what
is required by the rule. The term, ‘‘site characterization’’ must, however, be
presumed to have some meaning that is reasonable. Taking the dictionary
definitions quoted above, a site characterization would at least need to contain
a description of the ‘‘essential character or quality’’ of the Haddam Neck plant
site. Utilizing this definition, considering the guidance of NUREG-1700 on what
sorts of things might be included in at least one way of providingan adequate site
characterization,andapplyingcommonsense, itis reasonableto concludethatthe
dispute between CDPUC and the Applicant, over the proper legal interpretation
of the term ‘‘site characterization’’ and over what factually must be included
to provide an adequate site characterization, constitutes a ‘‘genuine dispute . . .
on a material issue of law [and] fact.’’ Thus, although section 50.82 is silent
on whether or not the HSA report should be part of the LTP, we find that the
preceding information, along with the documents and argument provided by
CDPUC, and NUREG-1700, provide ample information to suggest that another
63
readingofsection 50.82(a)(9)(ii)(A)thanthatprovidedbyStaff andtheApplicant
is sufficiently arguable to support a contention.
Moreover,as also requiredby 10 C.F.R. §2.714(b)(2)(iii),CDPUC has clearly
identified the asserted failure of the LTP to contain information on the relevant
matter of historical contamination events at the site, which under its reading of
section 50.82(a)(9)(ii)(a)would be ‘‘required by law,’’ and has provided reasons
to support its belief in this regard. In addition, although not necessary to our
decision, we note that the Staff’s view of what the Applicant must provide, in
order that the Staff can ‘‘assess[ ] whether the information presented in the LTP
adequately characterizes the radiological conditions of the facility and site,’’
10
supports CDPUC’s arguments in this regard.
Therefore, in light of CDPUC’s showing regarding the central role the HSA
resultsplayinthesite characterization,finalstatus survey,andultimatesuccessful
restoration of the Haddam Neck plant site to unrestricted use, we are persuaded
that the issue of whether an historical site assessment should be provided for
public scrutiny is litigable in this case. We thus admit Contention I.A, in a
combined form that is spelled out in our ruling on CDPUC Contention I.B, which
follows.
e. CDPUC Contention I.B: Adequacy of Site Characterization,
Comprehensiveness of List of Unplanned Releases
CDPUC Contention I.B states:
The Site Characterization in the LTP Is Inadequate and Must Be Extensively Supplemented
and Modified.
B. The LTP’s List of Unplanned Release Events Is Incomplete and Inadequate and
Must Be Amended and Supplemented to Include a Comprehensive Review of All
Such Events.
CDPUC Contentions at 5. CDPUC in this contention challenges the LTP’s
listing, in Tables 2-2 and 2-3, of unplanned gaseous and liquid release events,
asserting that theyare incompleteandmisleadingas implyingcomprehensiveness
when they are not so. CDPUC also contends that, in terms of cleanup efforts
that will be required, the LTP’s characterization of a 1984 unplanned release
as the ‘‘most significant’’ event is misleading.Id.at 5-6. CDPUC asserts
as fact that substantial unplanned liquid releases into unmonitored drains and
soil migrated outside the Radiologically Controlled Area (RCA) to previously
uncontaminated areas, which would be likely to have a greater impact on the
10See note 9 supra.
64
scope of decommissioning
11than the 1984 release, which was confinedto already
contaminated areas.Id.at 6. In support of this contention CDPUC refers to two
of the same exhibits from the FERC proceeding that it relies upon with regard
to Contention I.A,see id.at 6, Attachments 3, 4, and again to NUREG-1700, to
the first of the Acceptance Criteria quoted above in the discussion of Contention
I.A, which provides that ‘‘[t]he LTP identifies all locations, inside and outside
the facility, where radiological spills[, etc.,] occurred and could have resulted in
contamination . . . .’’ NUREG-1700 at 6.
CYAPCO argues that Contention I.B should be excluded because there is
no requirement in the LTP rule for the items at issue in the contention, and
becausethe contentiondoesnotassert that CYAPCO failed to take accountof any
incident that should have been evaluated. CYAPCO states that it has in fact taken
into account ‘‘all known events of unplanned release, both liquid and gaseous’’
(emphasis in original), and also states in a footnote that the problem with the
two tables is that the LTP is ‘‘less clear than was intended that the tables are
intended to be illustrative, not comprehensive.’’ CYAPCO Response to CDPUC
Contentionsat 8 n.9. The solution CYAPCO proposesfor this problemis to make
the textual language surrounding the tables ‘‘more explicit on their limitation’’
or simply to delete the tables, relief that would be a mere ‘‘formalistic redraft of
the plan,’’ citing Yankee Atomic Electric Co.(Yankee Nuclear Power Station),
CLI-96-1, 43 NRC 1, 9 (1996), for the principle that a contention calling for such
relief is not admissible. CYAPCO Response to CDPUC Contentions at 8 n.9.
The Staff objects to the admission of this contention ‘‘for many of the same
reasons given . . . with regard to I.A,’’ including the nonprescriptive nature of
NUREG-1700. Staff Response to Contentions at 23. The Staff also argues that
CDPUC fails ‘‘to make any showing that the alleged omissions would cause the
LTP to be in violation of 10 C.F.R. §50.82,’’ and that the relief sought — a
‘‘Comprehensive Review’’ of all unplanned release events — is ‘‘inadequately
supported by the facts submitted, thus rendering the contention inadmissible
pursuant to section 2.714(b)(2)(iii).’’Id.The Staff argues that under section
50.82, ‘‘the LTP will be approved by the Commission if it demonstrates that the
remainder of decommissioning activities will be performed in accordance with
the regulations in that chapter, will not be inimical to the common defense and
security or to the health and safety of the public.’’Id.The Staff’s reference
is taken to be to section 50.82(a)(10); no reference is made to the provisions
or substance of section 50.82(a)(9). Staff Counsel also, during oral argument,
11CDPUC’s reference to decommissioning appears to be intended as a reference to the cleanup part of the
termination process, based on the reference to ‘‘cleanup efforts that will be required during decommissioning,’’
CDPUC Contentions at 6. The reference is therefore taken as such, and not as an inappropriate reference to any
‘‘decommissioning’’ activities that would arguably be outside the scope of the LTP proceeding under the present
LTP rules governing this proceeding.
65
questionedCDPUC’s failuretotie theallegedomissionto aspecificconsequence.
Tr. 153.
RULING: CDPUC CONTENTION I.B
As in our analysis on Contention I.A, we begin with interpretation of the
rule and a look at what it reasonably requires. And again, although CYAPCO
correctly asserts that no part of the rule explicitly states that an LTP must contain
a comprehensivelist of unplannedreleases, the term ‘‘site characterization’’must
be presumed to have some meaning that is reasonable. The dictionary definitions
quoted above indicate that a site characterization would need to contain at least a
descriptionof the ‘‘essential character or quality’’ of the Haddam Neck plant site.
Applying this reasoning and considering the guidance of NUREG-1700, we find
theargument,thatademonstrablyincompletelistingofarguablysignificantevents
might be an indication not merely of an omission correctable by a ‘‘formalistic
redrafting’’ but of a more substantive inadequacy that would not be resolved by
either of the methodsposited by CYAPCO, to be one that rises at least to the level
necessary to support a contention.
Based upon the preceding analysis, as well as that contained in our ruling
on Contention I.A, we find that CDPUC’s demonstration of the LTP’s omission
of significant events such as unplanned releases, which CDPUC alleges and
supports with relevant documents, could arguably indicate an inadequate site
characterization,atleasttotheextentnecessarytoshow,withregardtoContention
I.B, a ‘‘genuine dispute on a material issue of law [and] fact,’’ as required by 10
C.F.R. §2.714(b)(2)(iii). Moreover, CDPUC makes specific reference to Tables
2-2 and 2-3 and gives reasons for its belief that they fail to contain complete
information about unplanned releases on site, which would, based upon the same
reasoning, arguably be a ‘‘fail[ure] to contain information on a relevant matter as
required by law,’’ under 10 C.F.R. §2.714(b)(2)(iii).
We find that the Staff’s argument, that the contention fails to tie the alleged
omissions to some consequence by showing that the alleged omissions would
cause the LTP to be in violation of 10 C.F.R. §50.82, with apparent reference
solely to subsection (a)(10), overlooks and in effect nullifies the provisions of
subsection (a)(9), which, again, must be presumed to have some meaning. We
find it at least arguable that violation of a provision of 10 C.F.R. §50.82(a)(9)
— which, we note, at subsection (ii) uses the words ‘‘[t]he [LTP]must include’’
— would constitute a significant, if not presumptive, indication of a possible
violation of a provision of 10 C.F.R. §50.82(a)(10). If, as CDPUC argues, the
site characterization of the LTP is inadequate, then it is likely, as CDPUC also
argues, that those areas not covered by the site characterization might be omitted
or given inadequate attention in cleanup efforts and the final status survey, which
would in turn indicate that the LTP has not
66
demonstrate[d] that the remainder of decommissioning activities [1] will be performed in
accordance with the regulations in this chapter, [2] will not be inimical to the common defense
and security or to the health and safety of the public, and [3] will not have a significant effect
on the quality of the environment ....
10 C.F.R. §50.82(a)(10). The relief, should CDPUC prevail on the merits of this
contention, would be to deny the LTP or condition its approval on completion of
an adequate site characterization.
As with Contention I.A, we conclude that Petitioner CDPUC has provided the
necessary explanation of the bases of Contention I.B; sufficient facts, sources,
and documents to support the contention; sufficient information to show, as
indicated above, that a genuine dispute exists with CYAPCO on the combined
legal/factualissue ofwhethertheLTPisadequateinitssite characterizationunder
10 C.F.R. §50.82(a)(9)(ii)(A) with regard to its listing of unplanned gaseous
and liquid releases; sufficient identification of the asserted failure of the LTP to
‘‘contain information on [this] relevant matter’’ as arguably ‘‘required by law’’;
and sufficient ‘‘supporting reasons for the petitioner’s belief’’ in this regard, to
render the contention admissible.
We therefore admit CDPUC Contention I.B. Because, however, the issues
raised by CDPUC’s Contentions I.A and I.B are so closely interrelated, we find
that litigating them in a combined form will be more efficient, and thus admit
them in the following consolidated form, as Contention I.A/B:
The Site Characterization in the LTP Is Inadequate in Its Historical Assessment of
Contamination Events on Site, Including Unplanned Release Events.
During further proceedings on this contention, the parties may, in addition
to presenting evidence on Contention I.A/B as restated, present evidence and
argument on the scope of additional information that should be included in the
site characterization.
f. CDPUC Contention I.C: Adequacy of Site Characterization, Reliability of
Monitoring of Radiological Releases During Operations
CDPUC Contention I.C states:
The Site Characterization in the LTP Is Inadequate and Must Be Extensively Supplemented
and Modified.
C. The LTP Does Not Analyze the Implications for License Termination of Unreliable
Monitoring of Radiological Releases During Operations, and It Must Be Revised to
Include a Thorough Evaluation.
67
CDPUC Contentions at 7. CDPUC asserts that there were three licensee event
reports(LERs)submittedin1997,aftertheplanthadbeenpermanentlyshutdown,
whichareinconsistentwithastatementintheLTPthat‘‘[r]eleasesweremonitored
in accordance with the requirements of the plant Technical Specifications.’’Id.
quoting LTP §2.2.4.1 at 2-7.
It appears to be undisputed that there were in fact three events in 1997
involving a series of radioactivity monitors that were discovered to have failed
to record accurately the correct values for releases. It is also undisputed that,
‘‘[f]or operational purposes, these defects could have presented major issues
. . . and the use of incorrect data could potentially have the effect of skewing
site characterization results.’’ CYAPCO Response to CDPUC Contentions at 9.
According to CYAPCO, however, after the problem was detected the data from
the monitors were ‘‘corrected to the results that should have been produced by
properly calibrated devices,’’ and indeed, ‘‘[i]t turned out that during operations
all significant release events were monitored, no dose limits were exceeded and
no required actions were omitted.’’Id.at 9-10. A revised LER was issued,
which CYAPCO states leads to a conclusion that ‘‘the problems associated with
the inaccurate monitoring of liquid and gaseous releases had no impact on the
characterization of the site.’’Id.at 9 n.10. CYAPCO has informed CDPUC of
this LER, but it has not been made part of the LTP as far as we are aware.
CDPUC questions CYAPCO’s statements that the events were in effect
reconstructed and corrected, and contends that in 1979 and 1980 there were
releases that most likely came through the vent stacks where the faulty monitors
were located and that have not been sufficiently analyzed for purposes of the site
characterization of the LTP. Tr. 159. In support of its contention CDPUC has
provided a document prepared by CYAPCO in 1980, entitled, ‘‘Investigation of
the Source of the Radioactive Contamination Found on the Connecticut Yankee
Site March 10-30, 1980.’’ This document contains references to two instances
of contamination at levels ‘‘slightly above that allowable by NRC regulations in
nonradiologicalcontrolledareas’’ andthe statementthatthe ‘‘morelikely method
of transfer from the RCA’’ of various forms of radioactive contamination found
at variouslocations on the site was ‘‘material being ejected from the primaryvent
stack.’’ CDPUCContentions,Attachment6,atCY0015488,CY0015513.Finally,
arguing that under the ‘‘Multi-Agency Radiation Survey and Site Investigation
Manual (MARSSIM),’’ NUREG-1575, Rev. 1 (Aug. 2000),
12 the standard for
site characterizations is that all areas are initially considered Class 1 areas unless
the licensee provides some basis for reclassification as either Class 2, 3, or
12It is undisputed that CYAPCO agrees that it will comply with MARSSIM standards. Tr. 119. However,
CYAPCO argues that MARSSIM does not define what is to be contained in an LTP, Tr. 177, in effect arguing that
although MARSSIM may require a particular action and analysis, a licensee is not required to state the action or
analysis in the text of the LTP. We address this argument as necessary insofar as it relates to particular issues, in the
context of these issues as they arise in the text.
68
nonimpacted,see MARSSIM §4.4 at 4-11, CDPUC contends that CYAPCO
must specifically address the monitor malfunctions in its site characterization,
both specificallywith regardto any area CYAPCO has classified as nonimpacted,
and generally, to meet its burden under the MARSSIM standard. Tr. 161.
The Staff opposes Contention I.C, arguing that the relief sought is ‘‘far out
of proportion to, and thus unsupported by, the evidence put before th[e] Board.’’
Staff Response to Contentionsat 24. The Staff asserts that ‘‘[t]hereis no factually
supportedshowinghereofanylikelihoodthattheentiresitecouldberadiologically
contaminated, or that it must be assumed that the malfunctions occurred over the
entire operating lifetime of the facility,’’ nor is there evidence ‘‘to show that [the
East Site Grounds, which have been designated as nonimpacted,]in particular are
contaminated.’’Id.Staff also asserts the importance of considering the context
of the subject matter of the contentions, citing the Commission’s SOC for the
1996 LTP rule, and stating that it is important to keep in mind that, because
duringdecommissioning‘‘thepotentialforconsequencesthatcouldresultfroman
inadvertent nuclear reaction are highly unlikely’’ and ‘‘the activities performed
by the Licensee during decommissioning are not likely to have a significant
potential to impact public health and safety,’’ the oversight of a reactor during
decommissioningactivitiesisatasignificantlydifferentandineffectlessstringent
magnitude than that required during operation of a reactor. Tr. 165-66.
RULING: CDPUC CONTENTION I.C
We find that CDPUC Contention I.C is admissible, at least in the sense of
presenting ‘‘‘sufficient information to show a genuine dispute’ and reasonably
‘indicating that a further inquiry is appropriate.’’’Yankee Atomic Electric Co.
(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 249 (1996); 54 Fed.
Reg.at33,171.AlthoughCYAPCOhasprovidedasomewhatdetailedexplanation
oftheeventsthatare thesubjectofthecontentionin footnote10ofitsResponseto
CDPUC’s contentions, this constitutes in effect arguing the merits of the subject
matter of the contention, which is not at issue at this point, absent a showing that
would indicate, pursuant to 10 C.F.R. §2.714(d)(2)(ii), that ‘‘[t]he contention,
if proven, would be of no consequence in the proceeding because it would not
entitle petitioner to relief.’’
CDPUC has provided the three 1997 event reports, along with the 1980
investigation report, to support its contention that the LTP site characterization is
inadequate in its analysis of the implications for license termination of unreliable
monitoring of radiological releases during operations. In response to CYAPCO’s
footnote 10, CDPUC Counsel argues that the explanation is inadequate because
the plant’s resolution of the events ‘‘focused on a resolution with regard to
whether off-site doses were below technical specification limits . . . [but] doesn’t
necessarily say anything about the on-site releases,’’ and because the 1980 report
69
specifically identified the release of radioactive particles from ‘‘the very stack
that was supposed to be monitored for particles,’’ which were ‘‘distributed over
a fairly wide range of the site.’’ Tr. 169.
Although we agree with all parties including CDPUC and CAN that the
outcome of a more in-depth analysis of the events in question may well indicate
that no problems remain as a result of the events in question, and although
there is no dispute that the magnitude of appropriate oversight of a plant during
decommissioning is lower than that during plant operations, we also note again
the Commission’s statement in the SOC for the regulation that ‘‘[t]he site
characterization,description of the remaining dismantlement activities and plans
forsiteremediationare necessary fortheNRCtobesure thatthelicenseewillhave
adequate funds to complete decommissioning and that the appropriate actions
will be completed by the licensee to ensure that the public health and safety will
be protected.’’ 61 Fed. Reg. at 39,289 (emphasis added). In light of this, and
based upon our previous analysis on the interpretation of the regulatory term,
‘‘site characterization,’’ and related matters, we find that CDPUC has raised an
admissible contention in Contention I.C, by providing the necessary explanation
of the bases of the contention; sufficient facts, sources, and documents to support
the contention; sufficient information to show that a genuine dispute exists with
CYAPCO on whether the LTP is adequate in its site characterization under 10
C.F.R. §50.82(a)(9)(ii)(A) with regard to its analysis of the monitoring defects
described in the license event reports; sufficient identification of the asserted
failure of the LTP to ‘‘contain information on a relevant matter as required
by law’’; and sufficient ‘‘supporting reasons for the petitioner’s belief’’ in this
regard, to warrant further inquiry and render the contention admissible.
We therefore admit Contention I.C.
g. CDPUC Contention I.D: Adequacy of Site Characterization, Fuel
Failures, and Likelihood of Alpha Contamination
CDPUC in Contention I.D challenges the adequacy of the site characterization
in its alleged failure to give sufficient attention to two ‘‘significant fuel failure
events in 1979 and 1989.’’ The contention states:
The Site Characterization in the LTP Is Inadequate and Must Be Extensively Supplemented
and Modified.
D. The LTP Does Not Adequately Describe and Evaluate the Impact of Fuel Failures
and the Likelihood of Alpha Contamination.
CDPUC Contentions at 8. CDPUC asserts that, although the LTP acknowledges
two significant fuel failure events in 1979 and 1989, LTP §2.2.4.2.3, it does
not adequately describe or analyze the impact of these fuel failures and the
70
associated likelihood of alpha particle contamination. CDPUC contends that the
‘‘increase in the level of alpha emitting radionuclides in the Reactor Coolant
System,’’ coupled with unplanned release events and ‘‘primary-to-secondary
leakage events, raise the possibility of alpha particles anywhere on the site.’’Id.;
CDPUC Contentions at 8. CDPUC provides support for this alleged fact through
the plant’s investigation report,id.Attachment 6; other plant memoranda and
reports,id.Attachments 8, 9, 10; and the testimony, in a FERC proceeding, of
a ‘‘long-time [CYAPCO] radiological technician’’ who has a Bachelor’s Degree
in Radiation Protection and certification from the National Registry of Radiation
Protection Technologists, that transuranic and alpha particles were to be found
‘‘all over’’ the plant.Id.at 8, Attachment 7 at 50-51.
CDPUC asserts that, becauseof the plant’shistory, the LTPshouldbe required
to specify (1) the conditions under which CYAPCO will use instruments to
measure both alpha and beta radiation (citing LTP §5.7.2.1, which allegedly fails
to specify such conditions); (2) the criteria for ‘‘cases where alpha scan surveys’’
will be required (citing LTP §5.7.2.4.3, which allegedly fails to specify such
criteria); and (3) the steps that will be taken to detect alpha particles on scabbled
or porous surfaces (citing LTP §5.7.3.1, which allegedly fails to specify such
steps).Id.at 9.
CYAPCO opposes the contention, asserting a lack of basis, stating in some
detail what the plant has done with regard to alpha particles, asserting that ‘‘hot
particles’’ are unrelated to the sections of the LTP to which CDPUC refers, and
citing Yankee Atomic Electric Co.(Yankee Nuclear Power Station), LBP-99-14,
49NRC238,252(1999),forthe propositionthattheinstrumentationissues raised
by CDPUC are implementation issues outside the scope of the LTP proceeding.
CYAPCO Response to CDPUC Contentions at 11-14. The Staff opposes this
contention,arguingthatitlacks adequatefactualsupportand thatthe reliefsought
is disproportionate to the facts alleged. Staff Response to Contentions at 25.
RULING: CONTENTION I.D
We findthesubject matterofContentionI.D tooverlapwith that ofContention
I.A, in that information relating to the fuel failures would be part of a complete
historical assessment of the site, and with that part of Contention I.E relating to
fuel failures. CDPUC also connects this issue with the unplanned release events
that are the subject of its Contention I.B. Therefore, although we do not admit
Contention I.D as stated, we will, in the interest of more efficient resolution
of these related subjects, permit the allegations supporting Contention I.D to
be litigated under CDPUC Contentions I.A/B and I.E (which we admit below),
to the extent that such evidence bears upon those contentions and is otherwise
admissible.
71
h. CDPUC Contention I.E: Adequacy of Site Characterization, Justification
for Initial Area Classifications
CDPUC Contention I.E states as follows:
The Site Characterization in the LTP Is Inadequate and Must Be Extensively Supplemented
and Modified.
E. TheLTP Does Not Provide Adequate Justification for Its Initial Area Classifications,
and Those Classifications Must Be Changed.
CDPUC Contentions at 9. As was noted relative to Contention I.D above,
CDPUC asserts that the LTP’s description of Class 1 areas is inconsistent with
the relevant MARSSIM requirement, and argues that CYAPCO has a burden to
provide justification in the LTP for ‘‘any lesser scrutiny classification than Class
1’’ under MARSSIM’s specification that ‘‘all areas are initially considered Class
1 areas unless some basis for reclassification as non-impacted, Class 3, or Class
2 is provided.’’Id.at 10; MARSSIM §4.4 at 4-11. CDPUC provides examples
of eleven specific area classifications in the LTP that it challenges. CDPUC
Contentions at 11-13.
The Staff does not oppose the admission of this contention with regard to its
calling for reclassification of these eleven areas, stating that ‘‘[i]n all instances
CDPUC provides factual background to substantiate the assertions of incorrect
classifications.’’ Staff Response to Contentions at 25-26. CYAPCO agrees that
the contention provides sufficient basis for six of the eleven areas and does not
oppose the contention with regard to them. CYAPCO Response to CDPUC
Contentions at 14-20.
The areas that both the Staff and CYAPCO agree are the subject of an
admissible contention are:
Area 9522 (part of the ‘‘Woodland Areas East of the Plant’’), which CDPUC asserts has been
erroneously classified as Class 2.
Area9308(‘‘SoutheastIndustrialArea’’)whichCDPUCassertshasbeenerroneouslyclassified
as Class 2.
Area 9106 (Discharge Canal) which CDPUC asserts has been erroneously classified as
Class 2.
Area 9508 (Pond) which CDPUC asserts has been erroneously classified as Class 3.
Area 9527 (East Mountain Side) which CDPUC asserts has been erroneously classified as
Class 2.
Area 9535 (South East Landfill Area) which CDPUC asserts has been erroneously classified
as Class 2.
72
CDPUC Contentions at 11-13; Staff Response to Contentions at 26; CYAPCO
Response to CDPUC Contentions at 15-20. The remaining areas in contention in
CDPUC I.E (quoting the actual language of CDPUC with regard to each) are:
Survey Area 1404, Unit Code 5 (Fuel Building East and West Walls) is initially assigned to
Class 3 (LTP Table 2-6 at page 2-26), but it is between two Class 1 areas, thus warranting
classification as at least Class 2.
Survey Area 3403 (Containment Enclosure Inside Surfaces) is assigned to Class 2 (LTP Table
2-6 at page 2-30), but there is no justification or basis provided for deviating from a Class
1 designation inside Containment. The Characterization Report does not even separately
analyze this survey area (Attachment 15 (Characterization Report, Section 2)), and there is no
explanation in the LTP for this classification.
Survey Area 9406 (South Warehouse) is assigned a Class 3 initial designation (LTP table 2-6
at page 2-36), but its historical use as a storage area for radioactive materials (Attachment 16
(Characterization Report Section 334 at 2)) necessitates reclassification as at least Class 2.
There is no justification for classification of Survey Area 9521 (adjacent to the ‘‘leach field’’,
Survey Area 9522) as Class 3 when the LTP provides no basis for this designation and this
area is inexplicably omitted entirely from the Characterization Report.See Attachment 17
(Characterization Report Table of Contents).
As noted [with regard to Contentions I.C and I.D], because of the apparent inoperability of
stack particulate monitors and the history of hot particles and fuel failures, there is no basis in
the LTP for identifying Survey Area 9532 as non-impacted (LTP Table 2-6 at page 2-37).
CDPUC Contentions at 12-13. CYAPCO argues that the contention with regard
to area 9521 is inadmissible; agrees that areas 1404, 3403, 9406, and 9532 are
admissible in scope; but argues that they are not supported by adequate bases.
CYAPCO Response to CDPUC Contentions at 16-20.
CDPUC’s challengeto the classification of surveyarea 1404,the east and west
exterior walls of the fuel building, as Class 3 is based upon the fact that the walls
are between two Class 1 areas, the roof of the building, and ground level in the
area of the building. CDPUC Contentions at 12, Tr. 171-72. Noting the LTP’s
definitionforClass3as‘‘[a]nyimpactedareasthatarenotexpectedtocontainany
residual radioactivity, or are expected to contain levels of residual radioactivity
at a small fraction of the DCGL, based on site operating history and previous
radiological surveys,’’ and noting as well CYAPCO’s asserted justification for
the classification being that ‘‘one would not expect airborne particles to cling
to the side of this wall, at least not after a moderate rain shower,’’ CDPUC
asserts that ‘‘there are undoubtedly some crevasses and crannies on the wall that
would be capable of holding contamination that [came from] either the roof or
the ground.’’ Tr. 172. In addition, CDPUC notes that at least one side of the
fuel building in question was used as a cask wash-down area, which would, it is
asserted, ‘‘have permitted contaminated particles to be put onto the wall during
73
that cask wash-down process.’’ All this leads the State to contend that area 1404
should be classified as at least Class 2. Tr. 172-73.
CDPUC’s challenge to the classification of survey area 3403, the containment
enclosure inside surfaces, as Class 2 is based upon CYAPCO’s asserted lack
of justification or basis for deviating from a Class 1 classification under
its MARSSIM. CDPUC Contentions at 12; Tr. 175. CDPUC refers to the
Characterization Report submitted as Attachment 15 to its contentions in support
of this part of Contention I.E, asserting that it does not separately analyze this
survey area, which is asserted to be ‘‘inside Containment.’’Id.
CDPUC’s challenge to the classification of survey area 9406, the ‘‘South
Warehouse,’’ as Class 3 is based upon the historical use of this area for the
storage of radioactive materials. As support for this argument CDPUC refers to
and attaches a documententitled ‘‘SouthWarehouse Radiological and Hazardous
Material Characterization Report,’’ in which the past usage of a part of this
warehouse as a controlled Radioactive Materials Area (RMA) is discussed.
CDPUC asserts that the prior use of the area for such storage warrants classifying
this area as at least Class 2. CDPUC Contentions at 13, Attachment 16. In
oral argument, CDPUC Counsel noted with regard to the South Warehouse
the MARSSIM definition for Class 2, as ‘‘hav[ing], or [having] had prior to
remediation, a potential for radioactive contamination or known contamination,
but . . . not expected to exceed the DCGLw.’’ Tr. 187;see also MARSSIM §4.4
at 4-12.
CDPUC’s challenge to the classification of survey area 9521 as Class 3 is
based upon an asserted lack of justification, by virtue of the LTP providing no
basis for the designation and the omission of the area from the Characterization
Report. CDPUC Contentions at 13. Counsel stated during oral argument that
area 9521 was immediately adjacent to an area known during plant operations as
the ‘‘leach field,’’ in which ‘‘the outfall came from liquid releases, particularly
within the radioactively controlled area.’’ Tr. 195. Relying on the absence of any
justification being provided in the LTP for classifying area 9521 as Class 3 in
light of this proximity, CDPUC argues that the classification for this area should
be ‘‘at least Class 2.’’Id.
CDPUC’s challenge to the classification of survey area 9532 as nonimpacted
is based upon ‘‘the apparent inoperability of stack particulate monitors and the
history of hot particles and fuel failures’’ at the Haddam Neck plant, which
are asserted to lead to the conclusion that there is no basis for identifying area
9532 as nonimpacted. Noting that the significance of characterizing an area as
nonimpacted is that this will result in its never being surveyed for radiation, Tr.
116;see also Tr. 224-25 (Staff indicates nonimpacted area surveys not generally
done), CDPUC argues that, although all areas are subject to reclassification as
additional surveying is done and new information comes to light, any change of
74
a nonimpacted classification would be based only on new information, since it is
not required to be resurveyed. Tr. 219.
RULING: CDPUC CONTENTION I.E
Giving due regard to CYAPCO’s objections with regard to some of the areas
usedbyCDPUCasexamplesinContentionI.E,wefindthatCDPUChasprovided
sufficient basis for the contention, supported by sufficient facts and information
to show a genuine dispute on material issues as required in 10 C.F.R. §2.714.
CDPUC’s references to MARSSIM and to various historical information provide
the support necessary to render the contentionadmissible, and we therefore admit
CDPUC Contention I.E.
i. CDPUC Contention I.F: Adequacy of Site Characterization, Buried Piping
and Drains
CDPUCinContentionI.FassertsthattheLTPdoesnotadequatelycharacterize
buriedpipinganddrainswherecontaminationislikelytobefound.Thecontention
reads:
The Site Characterization in the LTP Is Inadequate and Must Be Extensively Supplemented
and Modified.
F. The LTP Does Not Characterize — or Even Describe Reliable Methods for
Characterizing — Buried Piping and Drains and Must Be Modified to Include
Such Characterization.
CDPUC Contentions at 13. CDPUC asserts that the LTP does not characterize
the full length of buried drains and pipes but relies instead on measurements at
traps and other access points.Id.at 13-14 (citing LTP §§5.4.6.5, 5.6, 5.7.3.1.2,
and 5.7.3.2.5). CDPUC supports this contention with documents relating to
unplanned liquid and stack particulate releases, drains, pipes, and tanks.Id.at
14, Attachments 3, 18-24. It asserts that, although some cleanup has been done
at easily accessible locations, no attempt has been made to identify and remove
remaining contamination. Further, while acknowledging that the LTP says ‘‘pipe
crawlers’’ may be employed, CDPUC declares that there is no indication this
method will be used to determine the full length of undergroundcontamination.
The significance of such omissions, according to CDPUC, is that the LTP
has not adequately addressed the possibility that numerous unplanned releases
over the life of the plant deposited contaminants in the drains and pipes, which
will not be discovered and remedied unless there is a ‘‘thorough, full-length
characterization for all underground piping and drains to establish a baseline for
determiningthe extentofdecommissioningactivitiesthat must be undertakenand
for defining the scope of the Final Status Survey.’’Id.at 14. CDPUC asserts
75
that it is not arguing that all the buried piping must be removed, merely that such
pipingand the surroundingsoil mustbe characterizedin orderto proceedwith the
final status survey. Tr. 245-46.
CYAPCO recognizes that all the buried piping has not been characterized, Tr.
247, but points out that the LTP, pragmatically, provides that:
In the case of such piping systems, CY will characterize the entire run based on data collected
at traps and other access points if the circumstances permit one to conclude that the latter
describes the former.
In other cases, CY will make a decision (based on pragmatics and economics) either:
To remediate and take final status survey data from the run itself, or
To proceed directly to remove the system.
CYAPCO Response to CDPUC Contentions at 21 (citing LTP §2.3.3.1.1)
(emphasis in original). CYAPCO also asserts that the contention amounts to
a technical conclusion that the piping systems are contaminated and incapable of
decontamination. It concludes that some buried piping may be contaminated and
some may not, that some may be capable of being decontaminated and others
may not, and that Contention I.F is based not on facts but on ‘‘broad apriori
conclusions not supported by either data or analysis.’’Id.at 22.
TheStaffopposesContentionI.F,arguingthat‘‘[w]hileCDPUCmakesgeneral
statements regarding contamination onsite, it does not allege sufficient facts to
support its allegation that the proposed use of measurements at traps and other
access points will be inadequate to determine the extent of contamination,’’
and that CDPUC’s evidence of releases at the site is ‘‘not sufficient to support
the broad claim that the full length of drains and pipes must be examined for
characterization.’’StaffResponsetoContentionsat26-27. Thus,theStaffasserts,
CDPUC hasfailedto provide‘‘sufficientdetailto showthatthereexistsa genuine
disputeonanissueofmateriallaworfactpursuantto10C.F.R.§2.714(b)(2)(iii).’’
Id.(citing Private Fuel Storage,LBP-98-7, 47 NRC at 180-81;Yankee Atomic,
CLI-96-7, 43 NRC at 248-49).
RULING: CONTENTION I.F
CDPUC supports this contention with various reports relating to unplanned
releases, drains, pipes, and tanks. It does not suggest specific methods but seeks
characterization of the ‘‘full length’’ of drains and pipes,’’ and ‘‘modification’’
of the LTP to include characterization of buried piping and drains. CDPUC
Contentions at 13-14, Attachments 3, 18-24. On its face, we observe, this
contention is similar to the Staff’s request for additional information on drains
and piping, which states:
76
Describe the extent and range of radiological contamination (i.e. types and activity) of
structures, systems (including sewer systems and waste management systems), floor drains,
...pipingandembeddedpiping....
CDPUC Contentions, Attachment 1 at 3 of Enclosure (referenced in Introduction
to CDPUC Contentions).
CDPUC has explained the bases of its contention briefly, to the effect that
the measurement methods utilized and planned to be utilized by CYAPCO do
not adequately characterize the piping and drains; it has provided alleged facts
concerning releases into pipes and drains, and documents to support these facts;
and it has provided information, including its Attachment 1 with the Staff’s
RAI relating to drains and piping, sufficient to show that there is a genuine
dispute with CYAPCO on the material matter of whether the piping and drains
have been characterized adequately to meet the requirements of 10 C.F.R.
§50.82(a)(9)(ii)(A). Our analysis on interpretation of this section and the term
‘‘site characterization’’ is stated above and is incorporated herein.
We find that enough has been shown by CDPUC to support an admissible
contention to litigate. As stated by the Commission in Yankee:
Although section 2.714 imposes on a petitioner the burden of going forward with a sufficient
factual basis, it does not shift the ultimate burden of proof from the applicant to the petitioner.
. . . Nor does section 2.714 require a petitioner to prove its case at the contention stage. For
factual disputes, a petitioner need not proffer facts in ‘‘formal affidavit or evidentiary form,’’
sufficient ‘‘to withstand a summary disposition motion.’’...Ontheotherhand,apetitioner
‘‘must present sufficient information to show a genuine dispute’’ and reasonably ‘‘indicating
that a further inquiry is appropriate.’’
Yankee,CLI-96-7,43NRCat249. Weconcludethatfurtherinquiryisappropriate
based upon what CDPUC has provided at this point, and therefore admit
Contention I.F.
j. CAN Contention 1.1: Adequacy of Site Characterization, Information on
Extent of Contamination on Site
In its Contention 1.1, CAN asserts that:
[CYAPCO’s] site characterization is inadequate. Under NRC regulations at 10 CFR 50.82,
CYAPCO should withdraw the LTP or the Board in this matter should order that the LTP as
submitted is rejected and the application for a license amendment is disapproved. Although
CYAPCO met the threshold requirement of NUREG-1700 and 10 CFR 50.82(a)(9) merely by
submitting a License Termination Plan to NRC for review, the supporting site characterization
and LTP are so lacking in explicit information concerning the extent of contamination on
site that the submitted LTP cannot be approved under the license amendment. Moreover, the
272 page Millenium Site Characterization Report which was submitted after the LTP was
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issued and after the public hearing on the LTP, is hardly a comprehensive site characterization,
having, for example, too few data points.
CAN Contentions at 2. In support of the contention, CAN offers the expert
testimony of Dr. Marvin Resnikoff, who opines that the LTP, ‘‘instead of being
site specific, as required under 10 CFR Parts 50 and 51, is merely a ‘generic’ or
‘textbook’formthatcouldapplytoanysite.’’Id.at3.CANalsoreliesonNUREG-
1700and quotesa Staff RAI stating that ‘‘theLTP mustbe sufficientlydetailedto
permit the staff to independently verify that the facility can be decommissioned
safely and the license can be terminated,’’ and that ‘‘[t]he description of the
currect radiological status of the site is not adequate because it does not provide
sufficient information to allow the staff to fully understand the types and levels
of radioactive material contamination at the site.’’Id.at 2-3.
CAN alleges as examples of the inadequacy of the site characterization ‘‘the
impact of failed fuel and primary to secondary leakage events in light of the
potential for the existence of transuranics (TRU) and hard-to-detect nuclide
(HTDN) contamination of soils, waters and structures,’’ and ‘‘gross alpha
contamination above drinking water standards,’’ among others.Id.at 3-4. CAN
also asks that this proceeding be delayed until after CYAPCO has provided
sufficient information for the LTP to be reviewed by Staff.Id.at 5.
CYAPCO opposes this contention because, among other things, the present
site characterization is merely an ‘‘initial’’ site characterization, the contention
as framed is too broad to meet the contention requirements of section 2.714,
and there is no reference to specific portions of the LTP. CYAPCO Response
to CAN Contentions at 5-6. The Staff opposes the contention, arguing a lack of
factual support, and that EPA drinking water standards are not relevant to NRC
decommissioning regulations. Staff Response to Contentions at 6.
RULING: CAN CONTENTION 1.1
We find CAN Contention 1.1 to be inadmissible. We note, as Staff argues,
that the EPA drinking water standard was intentionally not adopted by the NRC.
See 62 Fed. Reg. 39,058, 39,074-75 (1997). With regard to the request to delay
the proceedings, as indicated above, this has been resolved otherwise, based
upon the authority of Calvert Cliffs,CLI-98-25, 48 NRC at 351 n.12. Finally,
we deny the contention for failing to comply with the requirement of 10 C.F.R.
§2.714(b)(2)(iii)thatsupportforacontentionmustinclude‘‘referencestospecific
portions of the application,’’ in this case the LTP.
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k. CAN Contention 1.2: Adequacy of Site Characterization, Supporting
Documentation
CAN asserts in Contention 1.2 as follows:
CYAPCO’s LTP is in violation of 10 CFR 50.82(a)(9)(ii)(A), as it lacks a sufficient site
characterization, as well as additional supporting documentation and information required by
10 CFR 50.75(g). As a result, CYAPCO cannot demonstrate that it can assure the level of
protection of public health and safety required under 10 CFR 50.82.
CAN Contentions at 5. CAN provides several arguments on the various ways
in which the LTP does not meet the criteria of NUREG-1700 and other asserted
requirements, but, as Staff notes, again does not point to specific portions of the
LTP. Staff Response to Contentions at 8.
RULING: CAN CONTENTION 1.2
We therefore find CAN Contention 1.2 inadmissible for its failure to comply
with 10 C.F.R. §2.714(b)(2)(iii).
l. CAN Contention 1.3: Adequacy of Site Characterization, Effect on Final
Status Survey
In Contention 1.3 CAN asserts that:
Contrary to the requirements of 10 CFR50.82, NUREG-1727, and NUREG-1700, CYAPCO’s
site characterization, and, consequently, its Final Status Survey, are insufficient in specificity
to determine the extent and range of on-site radiological contamination. As a result, CY cannot
demonstrate that it can assure the level of protection of occupational and public health and
safety that 10 CFR 50.82 requires.
CAN Contentions at 7.
In support of Contention 1.3, CAN offers the testimony of nuclear energy
expert James K. Joosten from the previously mentioned FERC proceeding, along
with documents related to various events at the plant, and some Staff RAIs.Id.at
8-12.
RULING: CAN CONTENTION 1.3
Again, CAN’s contention fails to include references to specific portions of the
LTP and is therefore inadmissible.
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m. CAN Contention 1.4: Adequacy of Site Characterization, Extent of
Transuranic, Hard-to-Detect Nuclide (HTDN), and ‘‘Hot Particle’’
Contamination
In Contention 1.4 CAN states:
Contrary to the requirements of 10 CFR 50.82 and NUREG-1700, CYAPCO’s site
characterization and LTP lack explicit information concerning the extent of transuranic,
Hard-To-Detect Nuclides (HTDN), and ‘‘hot particle’’ contamination. Contrary to NUREG-
1700, the LTP is not sufficiently detailed to permit the staff to independently verify that the
facility can be decommissioned safely and the license can be terminated for unrestricted use.
CAN Contentionsat13. InsupportofContention1.4,CAN offersDr. Resnikoff’s
statement, Mr. Joosten’s testimony, the testimony of a CYAPCO Health Physics
supervisor, and fairly detailed facts on the subject of the contention.Id.at 13-19.
RULING: CAN CONTENTION 1.4
Again, however, Contention 1.4 fails to include references to specific portions
of the LTP and is therefore inadmissible.
n. CAN Contention 1.5: Adequacy of Site Characterization, Methodology
for Detection and Cleanup of Transuranic, HTDN, and ‘‘Hot Particle’’
Contamination
In Contention 1.5 CAN asserts that:
CYAPCO’s LTP is insufficient in providing the methodology that will insure adequate
detection and cleanup of transuranics (TRU), ‘‘hot particles,’’ and hard-to-detect-nuclide
(HTDN) contamination. Contrary to the requirements of 10 CFR 50.82, the measurement
methodology CYAPCO provides in its LTP Site Characterization and Final Site Survey Plan to
determine alpha and beta emitting radioactivity, ‘‘hot particles,’’ and HTDN, is not adequate
to demonstrate that public and occupational health and safety will be protected.
CAN Contentions at 19-20. CAN also contends that ‘‘laboratory soil analysis
mustbedonetospecificallymeasureforgrossalphacontaminationovertheentire
500-acre site.’’Id.at 25.
In support of Contention 1.5, CAN offers Dr. Resnikoff’s and Mr. Joosten’s
testimony,alongwiththestatementofaCYAPCOhealthphysicist,andreferences
to MARSSIM and other documents, all of which present in some detail facts and
expert opinion on the extent of contamination at the site and the adequacy of the
methodsCYAPCO indicatesit will use to analyze it, includingsurrogateanalysis.
Id.at 20-22. CAN asserts a genuine dispute with CYAPCO on whether the LTP
provides adequate supporting data and methodology to determine whether the
80
LTP is adequate to ensure a cleanup sufficient to protect health and safety.Id.at
26. In addition, CAN refers to two specific portions of the LTP, at 5-15 and 2-11.
CYAPCO opposes this contention, asserting that the use of surrogate
measurements is a ‘‘well-established practice,’’ summarizing the phases of the
finalsurveyprocess, stating that CAN cites ‘‘nothingthatsays that such a process
is either forbidden or technically unacceptable,’’ and arguing that the contention
is lacking in basis. CYAPCO Response to CAN Contentions at 13-14.
The Staff opposes the contention, arguing that CAN has failed adequately
to support its allegation that CYAPCO’s use of surrogate analysis is so flawed
that it will fail to provide sufficient information to ensure that public health and
safety will be protected. The Staff argues that there is also no basis for the claim
made by CAN that use of this methodology will not produce adequate assays of
radionuclides, asserting that ‘‘[t]he fact that this process must be done with care
to ensure that the correct ratio is used does not reflect a fundamental flaw in the
methodology.’’Staff Response to Contentions at 10.
RULING: CAN CONTENTION 1.5
CAN’sbasisforContention1.5includesassertionsoffact, supportedbyexpert
testimony, that CYAPCO’s survey practices and cleanup efforts have not been
sufficient to identify or remove alpha contamination or ‘‘hot particles.’’ CAN
Contentions at 21. CAN also supports Contention 1.5 with expert assertions that
adequate and consistent isotopic ratios at the site are problematic, that there is
great variation of radionuclide ratios in the soil at the site, and that MARSSIM
providesthata‘‘surrogatemethodcanonlybeusedwithconfidencewhendealing
with the same media in the same surroundings — for example, soil samples with
similar physical and geological characteristics.’’Id.at 22-26 (citing MARSSIM
at 4-5).
Although CAN has not ‘‘made its case’’ with regard to Contention 1.5, we
find that it has providedsufficientexplanation,facts, expertopinion, sources, and
documents to show that a genuine dispute exists with CYAPCO on the material
issue of the appropriate methodology to use to test for alpha contamination and
‘‘hot particles’’ on the site, so as to warrant further inquiry. We therefore admit
CAN Contention 1.5.
o. CAN Contention 3.1: Identification of Subsurface Contamination
CAN asserts the following in Contention 3.1:
Contrary to the requirements of 10 C.F.R. 50.82, the methodology CYAPCO employs in its
Site Characterization and Final Site Survey Plan will not allow for subsurface contamination
to be identified, remediated and included in final status surveys. Since CYAPCO has failed
to provide adequate methodology to address subsoil contamination in their LTP, the site can
81
exceed the release limits for unrestricted use in 10 C.F.R. 20 Subpart E (and ALARA), and
public health and safety will be jeopardized. For this reason the Board must reject the LTP.
CAN Contentions at 33-34. CAN contends that the LTP’s site characterization
and final status survey are inadequate because the proposed final status survey
would not determine the full extent of onsite, subsurface contamination.Id.at
34. Relying on section 50.82(a)(9)(ii)(D)’s requirement for ‘‘detailed plans for
the final radiation survey,’’ and the requirement in section 50.82 that the LTP
demonstrate that the remainder of decommissioning activities are not ‘‘inimical
to . . . the health andsafety of the public,’’CAN also asserts that CYAPCO’s LTP
is inconsistent with NUREG-1700.Id.CAN posits that since CYAPCO plans
merely to consult the allegedly faulty historical site assessment record to identify
those areas where the potential exists for subsurface radioactivity, CYAPCO will
not survey for the full extent of onsite subsurface contamination.Id.at 35. CAN
also maintains that the LTP provides no description of a methodology to be used
in the cases where the historical record is lacking, incomplete or unavailable,
and cites NRC Confirmatory Action Letters (CALs), an Inspection Report, and
Preliminary Notifications (PNOs) as evidence that CYAPCO’s past monitoring
practices were inadequate.Id.at 35-36; Tr. 387-90.
CAN further complains that the LTP provides no methodology to provide
assurance that buried waste will be identified, surveyed, or remediated. Noting
that MARSSIM provides no guidance on soil monitoring, CAN argues that in its
absence the LTP must be more definitive. Tr. 391-92; CAN Contentions at 37.
CAN cites the FERC testimony of Mr. Joosten in support of this contention, as
well as the professional opinion of Dr. Resnikoff that CYAPCO has not carried
out a systematic subsurface sampling program to identify the source and extent
of subsurface soil contamination. CAN Contentions at 35-38, Exhibits 1, 2.
Raising concerns about hot particles and resin beads in the soil, CAN provides
evidence from past practices at the plant to bolster its position that the LTP does
not properly scope, characterize, or survey soil under tanks, paved areas, and
elsewhere.Id.at 38-41.
CYAPCOopposesthiscontentiononthebasisthatitlacksspecificity,claiming
that CYAPCO has used the results of its historical assessment and surveys to
performaninitialsitecharacterizationandclassifysurveyareas. CYAPCO asserts
that CAN has made broad allegations without specifically challenging specific
areas of the LTP. (CAN agrees that they do not challenge the classification of
survey areas.) Tr. 389-90. CYAPCO disputes CAN’s characterization of its
expert’s opinion with regard to potential contamination of groundwater from
radioactivity in soil, as well as CAN’s claim that contamination levels may
increase with depth of soil. CYAPCO Response to CAN Contentions at 18-
22. Finally, CYAPCO cites LTP §5.7.3.2.1 as evidence that it has a plan for
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dealing with subsurface soil contamination and is not relying on MARSSIM for
a subsurface soil surveying plan. Tr. 401-03, 408-11.
The Staff opposes the contention on the basis that the evidence presented
does not support the alleged insufficiency of the LTP. Arguing that ‘‘[w]ithout
providingmore definitive evidence of what CYAPCO will do for sampling, CAN
cannot argue simply that it will be insufficient.’’ Staff Response to Contentions
at 14;but see Tr. 425-36. The Staff also claims that CAN’s allegation, that
exceeding EPA standards demonstrates ‘‘greatly contaminated’’ subsurface soil,
isspeculativeandnotsupportedbyfactspresented. StaffResponsetoContentions
at 14.
RULING: CAN CONTENTION 3.1
This contention challenges the adequacy of the LTP’s plans for performing a
final status survey for subsurface soil. We find that CAN has provided sufficient
facts and expert opinion to support its contention and to justify litigating this
issue. It appears to be undisputed that MARSSIM does not address this issue,
see Tr. 401, and from our reading of the cited LTP section, we believe that there
is a material dispute whether the LTP outlines a sufficiently detailed plan for
performing subsurface soil surveys as part of the final status survey.
We therefore admit CAN Contention 3.1.
p. CAN Contention 3.2: Deep Pockets and Potential Concentrations of
Subsoil Contamination
CAN Contention 3.2 states:
Contrary to 10C.F.R.50.82the LTPdoes not adequately characterize the assay ofdeep pockets
of contamination and/or potential concentrations of contamination in subsoil areas where it is
likely to occur. For example, piping tunnels, conduits, foundation penetrations, draining units,
and naturally occurring rock cavities are places where radioactive contamination would be
trapped and accumulate.
CAN Contentions at 42. Citing NUREG-1700 and Staff RAIs as evidence, CAN
asserts in support of this contention that the LTP has not identified all locations,
inside and outside the facility, where contamination in piping, drains, ducts,
etc., is likely to occur. CAN claims that such unidentified contamination leads
to subsurface contamination of soil and of drinking water supplies, states that
there is still one unidentified active leak, and further supports the contention
with reference to a specific Staff RAI requesting similar information. CAN
Contentions at 42-43; Tr. 441-42.
CYAPCO and the Staff oppose this contention, asserting a lack of specificity
and that there is no requirement for a list of spills to be included in the LTP.
83
CYAPCO Responseto CAN Contentionsat22-23;Staff Responseto Contentions
at 14-15.
RULING: CAN CONTENTION 3.2
We agreewith the Staff and CYAPCO that CAN hasnot supportedContention
3.2 with sufficient facts or expert opinionto show a genuine dispute on a material
issue of fact or law. For example, although Dr. Resnikoff states in his affidavit
thathehelpeddraftContention3.0 andwouldtestifyin supportofthe conclusions
drawn in this and other contentions, his statement lacks specificity with regard to
Contention3.2. Thiscontentionisessentiallyaninadequatelysupportedextension
of CAN Contention 3.1.
We therefore deny CAN Contention 3.2. We note, however, that, to the extent
the facts submitted as bases for this contention bear upon CAN’s contention 3.1,
theymaybepresentedinlitigationofthatcontention,assumingtheyareotherwise
admissible.
CONTENTIONS RELATING TO WORK SCOPE
q. CDPUC Contention II.A: Scope of Work To Remove Contaminated Soil
and Asphalt
CDPUC Contention II.A states as follows:
The LTP Does Not Adequately Describe the Scope of the Work Necessary to Remove
Contaminated Soil and Asphalt.
A. The LTP Must Address Earlier Estimates of Necessary Soil Removal and Justify All
Proposed Limitations on Soil Survey and Removal.
CDPUC Contentionsat 14. CDPUC asserts that the LTP’s program for surveying
and removingsurface and subsurface soil and asphalt should be evaluated in light
of CYAPCO’s economic motivation to minimize costs.Id.In the FERC case
referenced above, a settlement was entered into, which provides that CYAPCO
may not collect from its customers any costs in excess of $12.6 million (as
escalated from 1996), for removing and disposing of contaminated soil and
asphalt from within the plant boundary.Id.at 14-15; LTP Appendix C at
C-9. CDPUC points out that the LTP justifies proposed limitations on soil
remediation ‘‘due to the high cost of waste disposal,’’ and argues that because of
this economic disincentive to remove contaminated soil and asphalt, CYAPCO
should be required to analyze and explain in the LTP ‘‘any deviations from a
thorough, comprehensive survey of surface and subsurface soil and asphalt.’’
CDPUC Contentions at 15; LTP §4.2.1 at 4-1, 4-2. Noting and attaching a 1996
evaluation of a ‘‘ballfield’’ area describing it as ‘‘filled with contaminated soil
84
before paving’’ so as to require excavation and disposal of 200,000 cubic feet of
soil and asphalt, and a contemporaneous note that this analysis was reconsidered
by CYAPCO because it would ‘‘cause[ ]the decommissioning cost estimate to
explode by approximately $100,000,000,’’CDPUC asserts that any deviation
from this analysis must be justified on some other basis than a financial one.
CDPUC Contentions at 15, Attachments 25, 13, and 26.
CYAPCO asserts that this contention is of the ‘‘cost estimate’’ sort that the
Commission has categorically declared inadmissible. CYAPCO Response to
CDPUC Contentions at 22 (citing Yankee,CLI-96-1, 43 NRC at 9). In Yankee,
the Commission stated that Petitioners must assert not only that a cost estimate
is not reasonable or in error, ‘‘but that there is not reasonable assurance that
the amount will be paid.’’Yankee,CLI-96-1, 43 NRC at 9. CYAPCO further
states that the contract it has entered into with the Bechtel Power Corporation to
perform ‘‘all of the tasks necessary to site release’’ is the ‘‘same sort of Power
Contract[ ]’’ as in Yankee.CYAPCO Response to CDPUC Contentions at 22
n.16 (citing Yankee,CLI-96-7, 43 NRC at 259-60).The Commission in CLI-96-7
explained that ‘‘to be significant enough to be ‘material,’ within the meaning of
the contention rule, there needs to be some indication that an alleged flaw in a
plan will result in a shortfall of the funds actually needed for decommissioning.’’
Id.at 259. The ‘‘Power Contracts’’ on which the Yankee licensee relied, which
are apparently undisputedly of the same sort as CYAPCO has entered into, were
found by the Commission to ‘‘offer solid evidence that the necessary funds will
be available when needed.’’Yankee,CLI-96-7, 43 NRC at 260. CYAPCO also
argues that the amount of offsite disposal will be dictated ‘‘not by any apriori
estimates of their volume, but by the result of the site characterization and final
status survey process,’’ and will be in whatever amount is necessary to meet the
survey requirements. CYAPCO Response to CDPUC Contentions at 23.
CDPUC respondsto CYAPCO’s argumentsrelating to cost issues by referring
to the FERC case settlement and limitation on the amount CYAPCO can collect
fromitscustomersforremovalofsoilandasphalt, whichis asserted todistinguish
this case fromthat in Yankee and bringinto question whetherthere is a reasonable
assurance that the amount necessary to do a proper cleanup will be paid. Tr. 446,
453. CDPUC also argues that Contractor Bechtel will have the same incentive
as CYAPCO to minimize costs and resulting ‘‘disincentive to look for and find,
and remove contaminated soil and asphalt,’’ and that the prior estimates provide
relevant support for the contention. Tr. 447-48.
The Staff opposes this contention as being overly vague and unsupported,
arguing that being sensitive to costs is not a sufficient basis to impose
additional requirements on the LTP, and citing the Commission’s consideration
of practicality and reasonableness of costs in decommissioning. Staff Response
to Contentions at 27 (citing 62 Fed. Reg. 39,058, 39,060 (July 21, 1997)).
85
RULING: CDPUC CONTENTION II.A
Keeping in mind the Commission’s rulings in Yankee,CLI-96-1 and CLI-
96-7, concerning the need to show ‘‘that there is not reasonable assurance that
the amount will be paid,’’Yankee,CLI-96-1, 43 NRC at 9, and to provide
‘‘some indication that an alleged flaw in a plan will result in a shortfall of the
funds actually needed for decommissioning,’’Yankee,CLI-96-7, 43 NRC at
259, we find that CDPUC has sufficiently distinguished the financial situation
as well as the factual situation with regard to the Haddam site to present a
different case than that previously considered by the Commission. CDPUC has
supported its contention with the FERC settlement, which indicates arguable
financial limitations not present in Yankee and which, in combination with the
prior evaluations/estimates, could arguably indicate ‘‘that there is not reasonable
assurancethattheamountwillbepaid,’’notwithstandingthePowerContractwith
Bechtel. Although it has not proven its case, we find that it has provided enough
factual support and information to show a genuine dispute on a material issue of
fact, sufficient to warrant further inquiry.
We therefore admit CDPUC Contention II.A, but, because we find it does not
provideadequatesupportforits referenceto justifying‘‘all’’proposedlimitations
on soil survey and removal, we limit it as follows:
The LTP Does Not Adequately Describe the Scope of the Work Necessary to Remove
Contaminated Soil and Asphalt, and Must Address Earlier Estimates of Necessary Soil
Removal and Justify Proposed Limitations on Soil Survey and Removal.
r. CDPUC Contention II.B: Potential Releases from Drains
CDPUC Contention II.B states as follows:
The LTP Does Not Adequately Describe the Scope of the Work Necessary to Remove
Contaminated Soil and Asphalt.
B. Absent Conclusive Empirical Evidence to the Contrary, the LTP Must Assume That
Potentially Contaminated Floor and Equipment Drains Released Contaminants into
the Surrounding Soil.
CDPUCContentionsat16.InthiscontentionCDPUCprovidesvariousdocuments
in support of its thesis that the LTP ‘‘mistakenly assumes that potentially
contaminated floor and equipment drains flowed to controlled disposal.’’Id.
Attachments 4, 18-24, 28. These documents concern various leaks and
‘‘dumping’’ of contaminated liquids, which lead CDPUC to argue that the LTP
‘‘must presume that all buried drains are radiologically contaminated until there
is empirical proof otherwise.’’ CDPUC Contentions at 17. CDPUC declares
that the LTP must therefore (1) justify leaving any storm drains, drain line, or
86
buriedpiping in situ; (2) explain all steps that will be taken to trace contamination
that may have leaked from piping, culverts, and drains into the surrounding soil;
(3) spell out the proposed sampling techniques for soil and sediments adjacent
to buried piping, culverts, or drains; and (4) require surveys of paved areas for
residual radioactivity beneath the surface.Id.
CYAPCO argues that this contention is inadmissible because it offers nothing
for litigation, since the LTP provides that any drain that does not pass the final
status survey will be removed. CYAPCO Response to CDPUC Contentions at
24-25 (citing LTP §2.3.3.1.1). CYAPCO also questions CDPUC’s reference to
section 3.4.2.30.3of the LTP, which relates to only one set of drainsand provides
that they will be removed.Id.at 25. The Staff objects to this contention as
being overbroad and unsupported by specific citation of how each leak relates
to each drain, such that the relief it calls for — an assumption that all drains
are contaminated, along with the additional requirements CDPUC seeks — is
unjustified. Staff Response to Contentions at 28.
In response to CYAPCO and Staff argumentsin oppositionto Contention II.B,
CDPUC effectively limits its contention, stating that it merely seeks a complete
survey of the drains and pipes, and that the LTP containsan inadequatelydetailed
planforhowthiswillbedone,giventheplant’shistoryofleaksandcontamination.
Tr. 455-56. CDPUC agrees that the focus of the contention is on the plans for the
final status survey.
RULING: CDPUC CONTENTION II.B
We find that CDPUC has presented sufficientfactual supportand information,
including a number of relevant documents, to show a genuine dispute on the
material factual issue of whether the plans for the final radiation survey are
sufficiently detailed with regard to drains, and therefore admit this contention in
modified form as follows:
The LTP does not adequately describe the scope of work necessary to remove soil and asphalt
contaminated through floor and equipment drains.
s. CDPUC Contention II.C: Whether Residual Radioactivity Confined to
Surface Soil
CDPUC Contention II.C states as follows:
The LTP Does Not Adequately Describe the Scope of the Work Necessary to Remove
Contaminated Soil and Asphalt.
C. Absent Conclusive Empirical Evidence to the Contrary, the LTP Must Assume the
Residual Radioactivity Will Not Be Confined to Surface Soil Layers.
87
CDPUC Contentions at 17. In this contention CDPUC challenges the LTP’s
conclusion that ‘‘residual radioactivity is generally confined to surface soil
layer,’’ referringback to the history of contaminationat the plant, and argues that
the LTP therefore (1) may not limit the ‘‘contaminated zone’’ to the top meter of
soil, (2) must identify each ‘‘localized area where soil contamination is [or may
be] deeper’’ than the top 3 meters, (3) may not limit surveys to the top 3 meters
of soil, and also must specify the details for subsurface soil sampling because the
MARSSIM methodologyis only applicable to surface soils, defined as the top 15
centimeters.Id.at 17-18; LTP §§6.4.2 at 6-6, 6.4.4 at 6-9, 6.4.2 at 6-7.
CYAPCO asserts that the contention misreads the LTP and is premised
on an incorrect characterization of what the LTP provides, stating that the
LTP specifically recognizes that ‘‘there may be localized areas where the soil
contamination is deeper [than the surface soil layer].’’ CYAPCO Response to
CDPUC Contentions at 25-26 (citing LTP §6.4.2 at 6-6, 6-7). CYAPCO also
contests the factual assertions of CDPUC, stating that ‘‘[i]n point of fact, the
‘empirical evidence’ gleaned during initial site characterization shows that the
average depth of contamination on site, not withstanding a few localized areas, is
limited to the asphalt and top 0.3 to 0.6 meters of soil.’’ CYAPCO Response to
CDPUC Contentions at 26. CYAPCO continues:
By definition, the model will be run on the basis of conditions that exist after any sub-surface
soils requiring remediation have been removed,as it should be if the results are to be related
to the released site. The fact that some sub-surface soil may have to be removed as part of the
remediation purpose does not mean that the soil that has been removed should be modeled as
if it had not been removed.
Finally, LTP §6.4 states ‘‘that soil DCGLs have been developed based on the preliminary
site characterization data. Site characterization will continue as part of the decommissioning
process. If future site characterization data indicate contaminant characteristics to be (non-
conservatively) different from those stated in this LTP, soil DCGLs will be revised as
appropriate using the change criteria process presented in Section 1.5.’’ By definition, and
as MARSSIM requires, the ultimate validation of model parameters should be driven by data
collected during the process, not fixed apriori.
Id.at 26-27 (emphasis in original).
The Staff opposes this contention as being overly vague, having an inadequate
basis, and lacking the requisite specificity. Staff Response to Contentions at 29
(citing Georgia Tech,CLI-95-12, 42 NRC at 117-18).
RULING: CDPUC CONTENTION II.C
We find that CDPUC has provided insufficient supporting facts or expert
opinion to render this contention admissible. Although CDPUC seeks to rely on
information set forth with regard to other contentions, it has not specifically tied
88
this information in any particulars to this contention. We therefore deny CDPUC
Contention II.C.
t. CDPUC Contention III: Estimate of Low-Level Waste
CDPUC Contention III states as follows:
The LTP Does Not Provide a Reliable Estimate of the Volume of Low-Level Radioactive
Waste for Disposal and Must Be Modified.
CDPUC Contentions at 18. CDPUC contends that the LTP’s estimate for the
volumeoflow-levelradioactivewastehasnofactualbasis, citingtheFERC ALJ’s
findingsto thiseffect,alongwith some ofthe exhibitsfromthe FERCproceeding.
CYAPCO objects to the contention on the basis that it fails to meet the
pleading requirement for a ‘‘cost estimate’’ contention, noting that CDPUC ties
the issue to the accuracy of a cost estimate, which was at issue in the FERC
proceeding.CYAPCO Response to CDPUC Contentionsat 27. TheStaff opposes
this contention as lacking relevance and materiality, and ‘‘simply alleg[ing] that
some matter ought to be considered[, which] does not provide the basis for an
admissible contention.’’ Staff Response to Contentions at 30 (citing Sacramento
MunicipalUtility District (RanchoSecoNuclearGeneratingStation),LBP-93-23,
38 NRC 200, 246 (1993)).
RULING: CDPUC CONTENTION III
We deny this contention. First, although testimony from the FERC proceeding
may be relevant in support of a contention depending upon its source, absent
some assertion that estoppel or issue preclusion is applicable, which has not been
made here, we do not consider the FERC ALJ’s findings to constitute the type of
facts or expert opinion that is required to support a contention. In addition, the
references in this contention to the FERC exhibits are indeed in the nature, not
of making a fact-based argument, but of bare assertions or ‘‘simply alleging,’’ as
the Staff argues. Finally, to the degree this contention relates to cost estimates,
we find it insufficient in this regard as well, in the context of the subject matter it
addresses and the facts presented in its support.Compare discussion of CDPUC
Contention II.A above.
CONTENTIONS RELATING TO DOSE CALCULATIONS
The contentions relating to dose calculations include CAN Contentions 2.1
through 2.3, 6.1, and 6.2. CDPUC Contention V, relating to RESRAD input
89
parameters, was withdrawn at oral argument, Tr. 488, and thus it is not addressed
or ruled on in this Memorandum and Order.
u. CAN Contention 2.1: Background Radiation Measurements
CAN Contention 2.1 states:
The LTP as written does not assure that background radiation measurements for the Haddam
Neck reactor site and surrounding environs will be conducted in areas not impacted by plant
operations. Contrary to requirements of 10 C.F.R. 50.82 the methodology CYAPCO employs
in its LTP Site Characterization and Final Site Survey Plan to determine background radiation
levels is vague, lacks justification, and fails to demonstrate that site release criteria will be met
and public health and safety will be protected.
CAN Contentions at 26. As its basis for this contention CAN complains that the
LTPdoesnotprovidean adequatescientificprocessfordistinguishingpreexisting
backgroundradiation from radioactive contamination resulting from the Haddam
Neck reactor operations. CAN asserts that CYAPCO has not justified its random
selection of background sample locations with the meteorology of the area and
contradictsitself in selectingonelocationin theEastSite Grounds. CAN provides
statements from its expert Dr. Resnikoff, and from Dr. Marvin Rosenstein,
USEPA, along with an RAI from the Staff as support for this contention. CAN
Contentions at 27-29, Exhibit 1; CAN Letter of May 25, 2001, Enclosure; Staff
lettertoCYAPCOdatedFebruary1,2001,HaddamNeckPlant(HNP)—Request
for Additional Information regarding the License Termination Plan (TAC No.
MA9791) [Staff RAI] at 13.
CYAPCO and the Staff oppose this contention. CYAPCO argues that
nonimpacted areas selected for background determination have been previously
surveyed. CYAPCO Response to CAN Contentions at 15; Tr. 505. The Staff
argues that CAN has not provided sufficient facts or opinion to raise a genuine
dispute of law or fact. Staff Response to Contentions at 12.
RULING: CAN CONTENTION 2.1
We find CAN raises issues in Contention 2.1 that are in genuine dispute.
The contention sufficiently raises and supports questions concerning alleged
deficiencies in the LTP concerning the methodology CYAPCO plans to use in
the determination of background radiation and radioactivity levels. The Board
recognizes that this methodology is critical for performing the final status survey
and for the ultimate determination of compliance with the NRC’s radiological
criteriaforlicensetermination.CANhasprovidedadequateallegationsandexpert
opinion to support its claim that CYAPCO’s plan in the LTP for determining
90
background is inadequate, vague, inconsistent, and lacking justification for its
plan. We therefore admit CAN Contention 2.1.
v. CAN Contention 2.2: Methodology for Determining Background
Radiation Levels for Construction Materials To Be Left in Place
CAN Contention 2.2 states:
The LTP as written does not provide methodology for the determination of background
radiation levels for concrete, asphalt, pipes and other construction materials that CYAPCO
intends to leave in place during the Final Status Surveys. Contrary to the requirements of 10
C.F.R. 50.82, the LTP fails to demonstrate that site release limits will be met and that public
health and safety will not be jeopardized thereby.
CAN Contentions at 29-30. CAN cites requirements found in Regulatory Guide
1.179 that LTPs include methods to be used to establish background radiation
levels as a basis for this contention. CAN alleges that the LTP does not provide
any detail regarding how site materials will be deemed ‘‘unaffected’’ or where
representativematerials may be obtained. In supportof this contention, CAN also
cites an EPA concernthat the LTP does not discuss the difficulties in determining
background in multimedia; provides Dr. Resnikoff’s expert opinion that this is
a serious problem; cites comments from a CYAPCO health physicist on the
difficulty of making such background determinations; and refers to a Staff RAI
thatasksCYAPCOto‘‘explain...thebackground material and areas in the
design of the FSS[, and, i]f credit is to be taken[, to] cite the background areas
and materialsto be used and providea summaryof the backgroundlevels.’’ CAN
Contentions at 30-32 nn.85-86, Exh. 1.
CYAPCO oppose this contention, arguing that its plan for determining
background radioactivity and radiation levels in various materials is included
in LTP §5.4.4. CYAPCO Response to CAN Contentions at 17. The Staff also
opposes the contention, arguing that reliance on an NRC Regulatory Guide is not
an adequatebasis foradmitting a contention. Staff Response to Contentionsat 12.
RULING: CAN CONTENTION 2.2
The Board finds the expert support for this contention to be unparticularized
and lacking in reasonable specificity.See Resnikoff Affidavit at 4, ¶13. To
the degree that the subject matter of this contention is supported by CAN’s
factual allegations, we find that it is effectively subsumed within the subject, the
‘‘Haddam Neck reactor site and surrounding environs,’’ in CAN Contention 2.1.
Therefore, we deny CAN Contention 2.2 as stated, but will permit evidence that
would be proffered in support of this subject matter, assuming it is otherwise
admissible, to be presented in support of CAN Contention 2.1.
91
w. CAN Contention 2.3: Instruments Used To Determine Background
Radiation Levels
CAN Contention 2.3 states:
The LTP does not provide adequate methodology regarding which instruments will be used to
determine background radiation levels for the Haddam Neck site, surrounding environs, and
for concrete, asphalt and other construction materials that CYAPCO intends to leave in place
during Final Status Surveys. Contrary to the requirements of10 C.F.R. 50.82, the methodology
on instrumentation CYAPCO provides in its LTP for background determination is scant and
does not assure that release site criteria will be met and public health and safety will not be
jeopardized.
CAN Contentionsat32. CAN aversthattheLTPprovidesnospecificinformation
on which instruments will be used to determine background radiation, nor
justification as to why each instrument is adequate. CAN cites a requirement in
NUREG/CR-5849 concerning the determination of background, refers to a Staff
RAI asking for information on the derivation of MDCs, and refers again to the
expert opinion of Dr. Resnikoff concerning background. CAN asserts that the
LTP must be revised if it is to ensure compliance with 10 C.F.R. Part 20, Subpart
E and ALARA. CAN Contentions at 32-33.
CYAPCO and the Staff and CYAPCO oppose this contention, arguing that
thereis noregulatoryrequirementforthe informationCAN alleges to be required.
CYAPCO Response to CAN Contentions at 18; Staff Response to Contentions at
13. CYAPCO also argues that it has met the requirements of MARSSIM, which
supercedes NUREG/CR-5849.Id.
RULING: CAN CONTENTION 2.3
We find that CAN in Contention 2.3 has not raised a genuine dispute on a
material area of fact or law. We find no basis in the sources cited in support
of Contention 2.3 for the proposition that the LTP must provide the sort of
informationrelatingto instrumentsthat CAN seeks. We thereforedenyadmission
of CAN Contention 2.3.
x. CAN Contention 6.1: Dose Modeling Calculation Methodology
CAN Contention 6.1 states:
Contrary to the requirements of 10 C.F.R.50.82, the dose modeling calculation methodology
CYAPCO employs in the LTP is not adequate to demonstrate that the LTP will assure the
protection of the public health and safety.
92
CAN Contentions at 61. As its bases for this contention, CAN asserts that
CYAPCO does not employ the latest version of the RESRAD dose modeling
code and, more significantly, employs many nonconservative assumptions in
its use of the code. CAN provides facts from the American Farm Bureau
challenging CYAPCO’s assumption in its RESRAD dose calculations of farm
labor exposure as being nonconservativeand not correct for Haddam Neck. CAN
also provides expert testimony from Dr. Resnikoff, claiming that drinking water
intake parameters and other pathway parameters are not correct for the Haddam
Neck site. Finally, CAN protests the exclusion of children from the calculation
in RESRAD using the family farm scenario, and maintains that children should
be considered the average member of the critical population in order to ensure
an adequate conservatism in the model. CAN Contentions at 61-65; Resnikoff
Affidavit at 4, ¶14.
CYAPCO opposes all parts of this contention. CYAPCO claims that the latest
version of RESRAD (version 6.0) did not become available until after it filed the
LTP. CYAPCO also says that CAN has not demonstrated that the use of a differ-
ent version of RESRAD will result in CYAPCO not meeting regulatory
requirements. In addition, CYAPCO argues that CAN uses improper statistics
to make its point that incorrect time-spent-outdoors parameters are used in
CYAPCO’s dose calculations. With regard to CAN’s protest about the non-
conservativeuse ofinhalationandwaterconsumptionparametersintheRESRAD
dose calculation, CYAPCO disagrees and claims that the LTP shows that some
parameters may have no effect on the overall dose calculation. CYAPCO
Response to CAN Contentions at 34-39.
The Staff does not object to CAN’s challenge to the parameters used in
CYAPCO’s dose calculations using RESRAD, but objects to the admission of
that part of CAN’s contention that challenges the version of the RESRAD code
used, and also argues that CAN’s claim that children should be considered the
average member of the critical population is a challenge to the Commission’s
regulations at 10 C.F.R. §20.1402, and thus not litigable before this Board. Staff
Response to Contentions at 18-19. We note that during oral argument, CAN
effectively withdrew that part of its contention to the effect that children should
be considered ‘‘the average member’’ of the critical group, arguing instead to the
effect that children should be included in the determination of such ‘‘average’’
member,and that it was not challengingthe regulationor the 25-milliremper year
total effective dose equivalent (TEDE). Tr. 521-26.
RULING: CAN CONTENTION 6.1
The Board denies in part and admits in part this contention. With regard to
CAN’s allegation of CYAPCO’s use of an earlier version of the RESRAD code,
CAN has not alleged or raised any genuine dispute that such use could result
93
in any significant change or effect on the determination of compliance with the
NRC’s release criteria in 10 C.F.R. Part 20, Subpart E. This part of the basis
for the contention is therefore denied. The Board finds, however, that CAN has
otherwise provided sufficient alleged facts and expert opinion to show a genuine
dispute on material issues of fact, relating to CAN’s challenge to the parameters
used by CYAPCO being insufficiently conservative in various ways.
With regard to the inclusion of children into the determination of the
‘‘average’’member of the critical group,we recognizethat the Staff still opposed
the contention on the basis that it challenges a regulation, even after CAN’s
clarification as summarized above.See Tr. 527-28. We nonetheless find this
issue to be litigable based on CAN’s clarification, and on the fact that the Staff’s
argument rests not on language in the regulation itself but on Counsel’s reading
of language in the Commission’s SOC. We do not find the language referenced
by Counsel — that ‘‘[i]f a site were convertedto residential use, the critical group
could be persons whose occupations involve resident farming at the site, not an
average of all residents on the site’’ — to be so unequivocalas Counsel suggests,
and leave the matter open for further argument and litigation.See 62 Fed. Reg.
39,058, 39,067-68 (July 21, 1997) (emphasis added).
We therefore admit CAN Contention 6.1, excluding from litigation the issue
of the different RESRAD versions, as noted above.
y. CAN Contention 6.2: Derived Concentration Guideline Level (DCGL)
Methodology and Data
CAN Contention 6.2 states:
Contrary to NUREG-1727, CYAPCO does not provide adequate Derived Concentration
Guideline Level (DCGL) methodology or data in their LTP. Lacking such critical information,
it is unlikely that CYAPCO will be able to meet 10 C.F.R. Part 20 Subpart E site release limits
and ALARA.
CAN Contentions at 65. CAN states that the LTP does not provide DCGLs,
arguing that DCGLs are so essential for designing, implementing, and evaluating
the final status survey that without them CYAPCO cannot adequately design or
conduct such a survey, and so will likely fail in meeting the limits of Subpart
E. CAN cites NUREG-1727 and MARSSIM as the basis for its contention
that CYAPCO merely includes generic material in the LTP but fails to provide
adequatesite-specificmethodologytojustify DCGLsin theLTP. CAN also refers
back to the bases provided for its Contention 1, which includes reference to
the statement of Dr. Resnikoff, who states that he participated in drafting this
contentionand attests to the technicalfactspresented. CAN Contentionsat65-66,
Exh. 1.
94
CYAPCOarguesthatthecontentionshouldberejectedonthebasisthatCAN’s
allegations are vague and unsubstantiated. CYAPCO claims site-specific DCGLs
have been developed and are presented in LTP §6. CYAPCO Response to CAN
Contentions at 39-40. The Staff opposes this contention, arguing that CAN does
not provide adequate support for its thesis that the methodology for site-specific
DCGLs is inadequate. Staff Response to Contentions at 19-20.
RULING: CAN CONTENTION 6.2
The Board finds that CAN has not supported its allegations that the LTP
presents an inadequate methodology for determining site-specific DCGLs or
DCGL data. CAN cites NUREG-1727 and MARSSIM, but provides us with
little if any substance to evaluate its concerns about the treatment of DCGLs
in section 6 of the LTP. We note that, although Dr. Resnikoff states he helped
prepare Contention 6.0, in contrastto his supporton CAN Contention 6.1 we find
no particularized, reasonably specific facts or opinion in his affidavit to support
this contention. Indeed, there is no mention of DCGLs in his discussion of this
contention in his affidavit. In the absence of more specific facts or expert opinion
to bolster this contention, we are left with no choice but to deny its admission.
CONTENTIONS RELATING TO WATER CONTAMINATION
z. CAN Contention 4.1: Monitoring of Contaminated Groundwater
CAN Contention 4.1 states:
CYAPCO’s monitoring of contaminated groundwater is inadequate to assure 10 C.F.R. Part
20 Subpart E site release requirements and ALARA will be met. The LTP as written fails to
identify pockets of radioactive contamination that exist within the unconsolidated sediment
above the bedrock, and fails to determine the extent of contamination in the bedrock and its
migration both on and offsite.
CANContentionsat44.CAN’sbasisforthiscontentionisthatdatainaCYAPCO-
sponsored Groundwater Monitoring Report
13 do not support the conclusions in
the LTP that the general flow of groundwater on the Haddam Neck site is from
north to south and hillside to river. CAN also postulates that the thickness
of the sediments overlaying bedrock at the site will foster ponding and allow
groundwater to penetrate bedrock. CAN concludes that, in the absence of pump
testsinbedrockboreholesandmorethoroughhydrologywork,thereisinsufficient
informationaboutgroundwaterflow in the bedrockto determinethe extentof any
13Malcolm Pirnie, Inc., Groundwater Monitoring Report, Final Report, Connecticut Yankee Atomic Power
Station, July 1999, Revised September 1999.
95
reactor-derivedcontaminationin groundwater,as necessary to ensure compliance
with Subpart E dose criteria. CAN Contentions at 44-46.
CYAPCO and the Staff oppose this contention. CYAPCO argues that CAN
has offered only its own explanation of the data in the Groundwater report, that
CAN’s theory of ponding of groundwater does not account for equilibrium flow
in a saturated system, and that pump tests will not tell much about groundwater
flow. CYAPCO Response to CAN Contentions at 23-24. The Staff argues that
CAN has not proffered any expert analysis of its concerns and makes allegations
only from the data in the report. Staff Response to Contentions at 15.
RULING: CAN CONTENTION 4.1
In ruling on this contention, we note that the expert with whom CAN
consulted in preparing the contention and basis does not wish at this time to
come forward to attest to it, nor has Dr. Resnikoff included this part of CAN
Contention 4.0 among those to which he attests. Nor does CAN on its own
show how its theory would affect the calculation of DCGLs, the adequacy of
the final status survey, or the ultimate determination of whether the 10 C.F.R.
Part 20, Subpart E, release criteria are met. The same problem applies to the
contents of a March 26, 2001, letter, presented by CAN at oral argument on
May 9, 2001, from the Connecticut Department of Environmental Protection to
a CYAPCO vice-president, regarding two groundwater monitoring reports that
CYAPCO had provided to the Department, which had been reviewed by the
‘‘Permitting, Enforcement and Remediation Division of the Bureau of Water
Management.’’ Letter from Peter G. Hill, Environmental Analyst 3, to Russell A
Mellor, (CYAPCO) Vice President (March 26, 2001), attached to Transcript of
May 9, 2001, proceedings, Tr. 565-71, 600-02.
14
We note statements in the letter cited by CAN, to the effect that it would
be ‘‘prudent and efficient to perform a preliminary evaluation of geologic and
hydrogeologic conditions at the site prior to the installation and testing of
additional wells,’’ that ‘‘[s]uch characterization is necessary to form the basis
that the groundwater plumes at the site have been adequately and thoroughly
14We note CYAPCO’s opposition to our consideration of this letter based on its not having been provided earlier,
and on CYAPCO’s argument that it addresses different subjects than the groundwater contribution to the site release
criteria. CAN argues that this letter should be consideredin support of its Contention 4.1 despite its not having been
filed with the contention itself, because, among other things, the March 26 letter had not been written and CAN had
no knowledge of it as of the final March 12, 2001, deadline for the filing of amended and supplemented petitions
and contentions, and the letter would, it is asserted, assist in providing a good record in this proceeding. We find it
unnecessary to rule on these issuesformally, given our ruling on Contention 4.1, but do note that the date of the letter
provides good cause for not having provided the letter with the original contention, and that its admission would
likely be supported in an analysis performed under the late-filing criteria of 10 C.F.R. §2.714(a), even if not strictly
applicable with regard to additional basis or support for a contention already timely filed: in addition to good cause
for the lateness of the filing, also supporting late-filing would be the lack of other parties or means to protect the
petitioner’s interest, while the factors regarding broadening the issues and assistance in developing a sound record
would have a neutral impact at this point in the proceeding.
96
characterized,’’ and requesting that the company look at ‘‘bedrock contour
maps.’’Id.at 1-2. CAN has not, however, specifically tied these ‘‘prudent’’
activities requested by the Connecticut Department of Environmental Protection
to the calculationof DCGLs, to the ultimate determinationof whetherthe Subpart
E release criteria are met, or to the adequacy of the final status survey under
sections 50.82(a)(9),(10). Nor has the State of Connecticut Departmentof Public
Utility Control supported CAN with regard to this contention.
We therefore will not admit CAN Contention 4.1 as stated. However, to the
extent that the proffered basis for this contention is relevant to CAN Contention
4.3 (which we admit below), CAN may present evidence with regard to the
groundwater/hydrological issues it raises in the litigation of Contention 4.3,
assuming it is otherwise admissible.
aa. CAN Contention 4.2: Identification of Unmonitored Leaks
CAN Contention 4.2 states:
Contrary to 10 C.F.R. 50.82 (iii) (A), CYAPCO’s LTP does not identify ongoing unmonitored
leaks into the ground and aquifer. CYAPCO’s failure to identify the locations of such leaks
precludes their ability to eliminate them and consequently permits increasing groundwater
contamination at a time when remediation is supposed to take place.
CAN Contentions at 46. As a basis for this contention, CAN points to statements
in the LTP that the Reactor Water Storage Tank was the source of tritium
contamination in the groundwater onsite and contends that, even if that source
were eliminated by draining as stated in the LTP, other sources, listed in the LTP
at 2.22, have not been eliminated. CAN also reads a CYAPCO Groundwater
Monitoring Report as stating that EPA drinking water standards have been
exceeded for tritium and gross alpha contamination. CAN Contentions at 46;
Malcolm Pirnie Groundwater Monitoring Report (July 1999, Revised September
1999). Citing a March 7, 2001, CYAPCO publication, ‘‘CY Today,’’ in which
mentionismade ofa conditionreportthat ‘‘[a]Historical Data Review is ongoing
to determine if the ‘A’ Water Test Tank is leaking,’’ CAN also hypothesizes that
there are ongoing leaks into the aquifer. CAN Contentions Exh. 7.
CYAPCOopposesadmissionofthiscontention,arguingthatCANhasmisread
the LTP, which does plan to deal with groundwater contamination. CYAPCO
Response to CAN Contentions at 25-26. The Staff argues that CAN has not
provided any evidence that there are ongoing leaks or that the LTP is in violation
of Commission regulations. Staff Response to Contentions at 16.
97
RULING: CAN CONTENTION 4.2 AND CAN MOTION TO RECONSIDER
EXCLUSION OF EVIDENCE
The Board finds that CAN provides inadequate expert analysis of the facts
submitted to support its contention. Neither CAN nor its expert, Dr. Resnikoff,
demonstrates with reasonable specificity how the information in the LTP or the
minimal information in the CY publication supports its speculation of ongoing
leaks into the groundwater.See Resnikoff Affidavit at 3, ¶11. Nor does CAN
show how the information it puts forth renders the LTP deficient in meeting
the requirements of sections 50.82(a)(9), (10), or in ultimately meeting the NRC
radiation release criteria in subpart E. We therefore conclude that CAN has not
shown a genuine dispute on a material issue of law or fact.
We note CAN’s proffer of a ‘‘Draft Evaluation of the Dec-Mar, 2001
Groundwater Tritiuim Fluctuations’’ purportedly written by Allen D. Yates,
who allegedly works for CYAPCO and whose ‘‘evaluation’’ begins with the
remark, ‘‘I am admittedly not a hydrologist [and any] speculations referring to
groundwater movement ...wouldbepurespeculation.’’Tr.609; Attachment to
May 9, 2001, Transcript. This documentwas provided to CAN by an anonymous
source. Tr. 609. An objection to consideration of this document was sustained at
oral argument, Tr. 614, and CAN has subsequently moved for reconsideration of
our exclusion of the report, which it contends was provided by a ‘‘whistleblower
[believed to be] employed by Bechtel, the company CYAPCO contracted to do
site cleanup,’’ and which it further contends ‘‘directly support[s]’’ Contention
4.2 and the argument that there are ongoing leaks at the plant and that ‘‘tritium
contamination is unlikely to come from a single source.’’ CAN Motion to
Reconsider Admission of Draft Report Titled ‘‘Evaluation for the Dec-Mar,
2001 Groundwater Tritium Fluctuations’’ by Allen D. Yates (May 16, 2001)
(hereinafter CAN Motion to Reconsider), at 1-2.
CYAPCO opposes CAN’s Motion to Reconsider, questioning the authenticity
andsignificanceofthedocument,arguingamongotherthingsthattheLTPdoesin
fact describe in detail the status of ongoing groundwater characterization efforts,
which‘‘isa continuingactivity,’’andrecountingsomeofwhatCYAPCO isdoing
withregardtoaddressingthesituationat issue. OppositionofConnecticutYankee
to CAN Motion for Reconsideration (May 24, 2001) (hereinafter CYAPCO
Opposition to CAN Motion), at 1-4. The Staff opposes, also arguing the
unreliability of the document in question and that it was untimely provided.
NRC Staff Response to Motion to Reconsider Admission of Draft Report Titled
‘‘Evaluationfor the Dec-Mar, 2001 GroundwaterTritium Fluctuations’’by Allen
D. Yates (June 7, 2001) at 2.
Our review of the technical significance of this document leads us to conclude
that, even putting aside the questions about its reliability, it does not support
CAN’sthesisthatCYAPCOandtheLTPdonotaddressongoingleaks. Thereport
98
appearsto be an historical assessment of the admitted groundwatercontamination
problemexisting atthe HaddamNeck site, with its conclusionson the fourthpage
thereof mentioning the period 1972-2000. There is no information in the report
that addresses the question whether there is a present ongoing leak, nor does it
shed any light on how CAN’s allegation shows that the LTP is deficient, or why
the contention would lead to not complying with release criteria. And indeed, if
thedocumentisanauthenticCYAPCO document,itreflectsthataneffortisbeing
made by CYAPCO to address at least historical data. We deny reconsideration of
our exclusion of consideration of this document with regard to Contention 4.2.
Finally, given our finding that CAN has not shown a genuine dispute on a
material issue of law or fact with regard to its Contention 4.2, we deny admission
of the contention.
bb. CAN Contention 4.3: Gross Alpha and Beta Concentrations in
Monitoring Wells
CAN Contention 4.3 states:
CYAPCO’s LTP fails to demonstrate that gross alpha and beta concentrations in monitoring
wells, particularly those wells which have radioactive contamination in excess ofEPAdrinking
water standards, are not reactor derived. Therefore, CYAPCO has no justification to exclude
gross alpha and gross beta concentrations from dose modeling calculations and, consequently,
the site can exceed site release criteria upon license termination contrary to requirements of 10
C.F.R. Part 20, subpart E.
CAN Contentions at 48. CAN contends that the Groundwater Monitoring Report
indicates that as of April 1999 four test wells exceeded EPA’s gross alpha
Maximum Contaminant Level (MCL) and three wells exceededEPA’s gross beta
MCL for drinking water. Groundwater Report §2, Table 6. CAN’s expert, Dr.
Resnikoff,hasdeterminedthere wasno correlationbetweengrossalphaand gross
beta in the wells, and CAN alleges that the LTP fails to identify the radionuclides
responsiblefor the excessive grossalpha and beta levelsin the wells. CAN argues
thatwithoutknowledgeoftheradionuclides emittingthealphaandbetaradiations,
CYAPCO can notdeterminewhetherwaterin these wells meets site release limits
of 10 C.F.R. Part 20, Subpart E. CAN Contentions at 48-49; Resnikoff Affidavit
at 3, ¶11.
CYAPCO and the Staff oppose this contention. CYAPCO’s position is that
CAN has not demonstratedthat the observedradioactivitylevels will be excluded
from the final dose calculations and states that neither the measurements nor the
dose calculations need to be included in the LTP. CYAPCO Response to CAN
Contentions at 26-27. The Staff opposes on the basis that CAN has not shown
any support for its position that CYAPCO’s dose modeling is inadequate. The
Staff states further that radioactivity levels near EPA standards is not shown by
99
CAN to reflect a failure in dose modeling, noting that the NRC doesn’t rely on
EPA standards in assessing dose criteria. Staff at 16-17; 62 Fed. Reg. 39,058,
39,074-75 (July 21, 1997).
RULING: CAN CONTENTION 4.3
The Board finds thatCAN has demonstrated with sufficientspecificity that the
alleged deficiencies in the Groundwater Monitoring report could arguably result
in an inadequacyin the LTP. We find further that CAN’s facts and expertopinion
show a genuine dispute on the material issue of whether the LTP will properly
include appropriate radionuclides in final dose calculations. We therefore admit
CAN contention 4.3; but, because the NRC has not adopted EPA drinking water
standards within the LTP context, we limit the contention to the following form:
CYAPCO’s LTP fails to demonstrate that gross alpha and beta concentrations in monitoring
wells are not reactor derived, and CYAPCO therefore has no justification to exclude gross
alpha and gross beta concentrations from dose modeling calculations, and the site may exceed
the site release criteria of 10 C.F.R. Part 20, subpart E.
cc. CAN Contention 4.4: Contamination in Discharge Canal
CAN Contention 4.4 states:
CYAPCO’s LTP neither adequately describes the contamination within the discharge canal,
nor discusses the need or techniques to be used to remediate this area. It is likely that without
changes to the LTP, 10 C.F.R. Part 20 site release limits will be exceeded in the canal and in
near offsite areas.
CAN Contentions at 49. CAN claims CYAPCO doesn’t justify classifications
of 2 and 3 for the discharge canal. CAN cites numerous planned and unplanned
discharges into the canal as bases for claiming that LTP must include appropriate
sampling methodology for the canal and justify its classification. CAN provides
factual support from an NRC inspection report, an NRC Historical Review, and
the above-referenced testimony of Mr. Joosten. CAN Contentions at 49-51.
Although CYAPCO claims this contention is too speculative to be admitted, the
Staff supports its admission.
RULING: CAN CONTENTION 4.4
We find that CAN has submitted adequate factual evidence to admit this
contention. For example, in the NRC Historical Review report cited by CAN the
Staff makes the following observation:
100
The licensee’s report also identified residual levels of radioactive material in mud sediments
along astorm drain runoffleading from thefacility grounds tothe discharge canal. Thelicensee
identified that the contamination likely resulted from the discharge of contaminated liquid
from the storm drain which originated within the radiologically controlled area and from runoff
from the protected area. The contaminated runoff likely originated from contamination on
the ground, which resulted from leaking radioactive liquid storage tanks and from radioactive
waste handling operations in the outside environment but within the radiologically controlled
area.
Staff Letter to CYAPCO dated March 26, 1998, ‘‘Subject: NRC Historical
Review Team Report — Radiological Control and Area Contamination Issues
at Haddam Neck,’’ Appendix A at 3. The Board considers that CAN has in
Contention4.4metits burdenof providingsufficientfactualsupportto establish a
material dispute with CYAPCO that warrants further inquiry. We therefore admit
CAN Contention 4.4.
dd. CAN Contention 4.5: EPA Maximum Contaminant Levels (MCL) for
Drinking Water
CAN Contention 4.5 states:
CYAPCO’s LTP does not assure that groundwater contamination will not exceed the EPA’s
Maximum Contaminant Levels (MCL) for drinking water, thereby threatening public health
and safety.
CAN Contentions at 52. Although CAN admits that this contention challenges
relevantNRC regulations,Tr. 630, its basis for the contentionis its allegationthat
numerous groundwater test wells exceed the EPA standard for drinking water.
CAN complains that CYAPCO’s LTP does not commit to meeting EPA MCLs,
andcitesCYAPCO’s GroundwaterMonitoringReportforevidencethattest wells
haveexcessivegrossalphaandgrossbeta radioactivitylevels. Asadditionalbases
for its concern,CAN cites an EPA statement at a NRC public meeting on October
17, 2000, which indicates that EPA is interested to see that groundwater MCLs
will be met. CAN also cites a Staff RAI asking CYAPCO to ‘‘determine whether
the radionuclide concentrations in the water bearing units and the surface water
represent a health concern utilizing dose modeling.’’ CAN Contentions at 52-53.
Both the Staff and CYAPCO oppose this contention on the basis that EPA
standards are not part of the NRC release criteria and that there is no authority for
the NRC or this Board to enforce EPA standards. Staff Response to Contentions
at 17; CYAPCO Response to CAN Contentions at 28.
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RULING: CAN CONTENTION 4.5
The Board agrees with the Staff and CYAPCO that it has no authority to
enforce EPA standards not adopted by the NRC. We therefore deny admission of
CAN Contention 4.5.
CONTENTION RELATING TO RUBBLIZATION
ee. CAN Contention 5.0, Subparts 5.1-5.4
CAN Contention 5.0 has four parts, the entire grouping of which we address
in our analysis and ruling below. The four parts of the contention are:
5.1 The LTP does not assure that the foundations in which rubble is to be buried are
adequately characterized and will meet NRC 10 C.F.R. Part 20 limits for unrestricted
use. Characterization and remediation where necessary of interior and exterior
foundation surfaces and inner concrete mass must be included in the LTP. CAN
Contentions at 53-54.
5.2 Rubblization is not a permitted means of disposal of buildings and other debris
under existing NRC regulations. The NRC has never conducted a rulemaking on
rubblization. Rubblization has notbeenthe subject ofanEIS.Thereis nosite-specific
EIS for the Haddam Neck reactor site dealing with the environmental consequences
of rubblization. Under these circumstances, use of rubblization at Haddam Neck
constitutes illegal low-level radioactive waste burial, and violates both existing NRC
regulations under Parts 20 and 50, and the National Environmental Policy Act, 42
USC §4321 et seq. (1988). If the NRC allows CYAPCO to use rubblization without
a proper rulemaking, and with existing rules and guidance that appear to prohibit it,
there will be a violation of the Administrative Procedure Act, 5 U.S.C. §501 et seq.
CAN Contentions at 56.
5.3 Contrary to 10 C.F.R. 50.82, CYAPCO’s LTP fails to demonstrate that intentional
burial of contaminated building debris in foundations on-site is ALARA. CAN
Contentions at 58.
5.4 Rubblization should not be permitted at the Haddam Neck reactor site given the
potential for transuranic materials, ‘‘hot particles’’ and HTDN to go undetected and
10 C.F.R. Part 20 site release limits to be exceeded. CAN Contentions at 60.
All of CAN’s contentions on rubblization in one sense rise or fall on whether
what CYAPCO plans to do with regard to possible demolition and burial of
building parts in foundations actually constitutes ‘‘rubblization.’’ The Staff and
CYAPCO contend that what CYAPCO plans to do is not rubblization, which the
Staff defines as ‘‘the burying of demolition debris which may have detectable
levels of radioactive contamination.’’ Staff Response to Contentions at 17-
18. The Staff also refers to a document on the ‘‘Use of Rubblized Concrete
Dismantlement to Address 10 CFR Part 20, Subpart E, Radiological Criteria for
License Termination,’’ in which it is stated that, ‘‘[o]nce a facilitiy’s license is
102
terminated, structures can be demolished and buried, provided relevant Federal,
State, and local requirements are met,’’ and that ‘‘[u]nrestricted release means
that once the license is terminated anything could be done with the site or facility
including excavation and reuse of any buried material.’’ SECY-00-0041 (Feb.
13, 2000), at 2. It is also indicated in this document, regarding the purpose of
‘‘rubblization,’’ that to ‘‘reduce the level of surface decontamination required
to be removed could save a licensee several million dollars.’’Id.By contrast,
CYAPCO and the Staff argue, CYAPCO intends to meet the decontamination
requirements for standing buildings, which are more stringent, and then possibly
demolish buildings only after release. Staff Response to Contentions at 17-18;
CYAPCO Response to CAN Contentions at 29-30.
With regard to such post-release activities, SECY-00-0041 quotes the
Generic Environmental Impact Statement (GEIS) in Support of Rulemaking
on Radiological Criteria for License Termination of NRC-Licenses Nuclear
Facilities, NUREG-1496, from section 4.2.1, ‘‘Human Health Impacts Resulting
from Decommissioning,’’ as follows:
Alsonotspecifically addressed intheGEISare theimpacts fromfuture inadvertent recycling of
contaminatedbuildingrubbleandsoilfollowingdecommissioningofasite. Onecouldpostulate
that both building rubble and soil containing residual radioactivity could be inadvertently
recycled into new construction material, or used as fill, thus causing radiation exposures.
Although the analyses in the GEIS does [sic] not specifically take this recycling into account,
the building occupancy and onsite resident scenarios and assumptions used in the GEIS to
estimate public doses from decommissioning lands and structures are considered sufficiently
conservative to encompass recycling of such material. The exposure mechanisms are similar,
andtheresultingindividualdosescouldonlybelessthanthoseevaluatedbecausecontamination
of the recycled material will be reduced through dilution with other raw materials. Thus, future
inadvertent recycling of soils or structures following decommissioning of the reference sites
would not affect the conclusions made in the GEIS regarding public health.
NUREG-1496 §4.2.1. Reference has also been made to rulemaking that would
revise the GEIS on Decommissioning of Nuclear Facilities, NUREG-0586, but
Staff has clarifiedthat the resulting revisionof NUREG-0586will ‘‘consideronly
the non-radiological impacts of rubblization,’’ and that the Staff will review the
radiological impacts of rubblization on a site-specific basis when rubblization is
incorporated into an LTP.
CAN contends that CYAPCO plans intentionally to bury ‘‘rubblized
buildings,’’ or ‘‘what will still be contaminated building debris in left-behind
foundations,’’andreferstoCYAPCO’splansas‘‘aloopholecreatedbyunfinished
regulations.’’ CAN Contentions at 54; Tr. 636-37, 640. CAN considers that
whatCYAPCO terms ‘‘post-releasedemolitionof releasedbuildings’’is ‘‘simply
modified rubblization,’’ and contends that the LTP ‘‘does not put forth a
methodology that will assure that the interior and the exterior surfaces of the
103
foundation and inner concrete masses will be properly surveyed and remediated,
where necessary.’’ Tr. 637-38.
CAN also cites a Staff RAI asking CYAPCO to explain the process that
will be used to locate and identify radionuclide contamination on and below
subsurface foundations remaining onsite. Tr. 638. In addition, CAN argues that
the foundations at the site have been subjected to contaminated groundwater,and
specifically expresses the concern that alpha contamination can go undetected
beneath painted surfaces.Id.; CAN Contentions at 53-61. CAN argues that ‘‘it
doesn’t matter what you call this waste management tactic, it has to do with
whether or not they have surveyed the foundations properly, and whether or not
the methodology is actually in the plan.’’ Tr. 639.
CAN contends further that, ‘‘even if the material has met NRC site release
criteria,’’ it would violate Connecticut law, and the EPA has questioned the
absence of any reference to this in CYAPCO’s environmental report. Tr. 640-41.
CAN argues that in order to comply with NEPA requirements CYAPCO must do
an environmental impact statement as part of the LTP. Tr. 642. CAN argues that
if building parts are to be buried, they must be made ‘‘even cleaner than what
would have been if those buildings had been left standing, because of how they
will contribute to the TEDE.’’ Tr. 643.
The central thrust of CAN Contention 5 is, as expressed in oral argument,
that the building surfaces and foundations must be measured accurately for
radiological contamination, and that this cannot be done if they are permitted
to be buried, even after release. Tr. 645-46. We note that CYAPCO concedes
that ‘‘there is a little element of [Contention] 5.1 that has nothing to do with
rubblization,’’ and that ‘‘the residual part of 5.1 talks about the methodology by
which you reach site release conclusionswith respect to inaccessible surfaces, the
buried part of the outside foundation wall of a building.’’ Tr. 665, 664.
RULING: CAN CONTENTION 5
We find that we do not have the authority under the LTP rule to determine
what a licensee may do after unrestricted release, once it is determined that the
requirements for unrestricted release have been met. Although, as Staff Counsel
indicated at oral argument, Part 20 requires a licensee when calculating TEDE
to the average member of the critical group to ‘‘determine the peak annual
TEDE dose expected within the first 1000 years after decommissioning,’’ 10
C.F.R. §20.1401(d),our authorityis limited by sections 50.82(a)(9),(10), andthe
Commission’s guidance in Yankee,CLI-98-21, 48 NRC 185,supra.
On the other hand, we also find, as CYAPCO has conceded, that CAN in
Contention 5 raises an issue that concerns what occurs before release, relating
to the adequacy of the characterization and plan for cleanup and survey of
buried foundations and surfaces of buildings, to assure and demonstrate that the
104
release criteria for unrestricted use will be met. Recognizing that CYAPCO’s
position is that the LTP addresses this,Tr. 664, we find that, to the extent
that the contention challenges the adequacy of the cleanup and measurement of
residual contamination on building surfaces and foundations prior to release, the
contention raises and supports issues that should not lightly be dismissed.
Taking all of the above considerations into account, we deny admission of
CAN Contention 5.0, including Contentions 5.1 through 5.4, as stated. However,
we expressly permit CAN to present otherwise admissible evidence on the issue
of appropriate characterization and plans for final cleanup and survey of above-
groundbuildingsurfaces,takingintoaccountpossiblepost-releasedemolitionand
burialactivities suchas aredescribedinthe LTP,in thelitigationofits Contention
1.5; and to present otherwise admissible evidence relating to the appropriate
characterization and plans for final cleanup and survey of buried foundations,
taking into account possible post-release demolition and burial activities such as
are described in the LTP, in the litigation of its Contention 3.1. In addition, we
note that, shouldinformationcome to lightas a resultof the RAI and/ordiscovery
process that would indicate further attention should be given to the EIS issue
raised by CAN or other related issues, late-filed contentions may be submitted
based on such information, which would be ruled on in accordance with the
provisions of 10 C.F.R. §2.714(a)(1),(b)(2), and (d)(2).
III. CONCLUSION
A. Admitted Contentions
In conclusion, we admit the following contentions:
Site Characterization Contentions
CDPUC Contentions I.A/B as reframed above; I.C; I.E; and I.F; with
CDPUC granted leave to support Contentions I.A/B and I.E with relevant,
otherwise admissible evidence relating to allegations originally presented in
support of its Contention I.D, as set forth above;
CAN Contentions 1.5 and 3.1, with leave to support these contentions
withrelevant,otherwiseadmissibleevidencerelatingtoallegationsoriginally
presented in support of its Contention 5.0, as set forth above;
Work Scope Contentions
CDPUC Contentions II.A and II.B, as limited and modified above;
Dose Calculation Contentions
CAN Contention 2.1, with leave to support this contention with relevant,
otherwise admissible evidence relating to allegations originally presented in
support of Contention 2.2, as set forth above;
CAN Contention 6.1 in part, as set forth above;
105
Water Contamination Contentions
CAN Contentions 4.3 as reframed above; and 4.4; with leave to support
Contention 4.3 with relevant, otherwise admissible evidence with regard to
allegations originally supporting Contention 4.1.
B. Efficient Conduct of Proceedings
In the interest of the efficient conduct of the proceedings in this matter, we
encourage the consolidation of contentions and proof on the same or related
subject areas to the extent possible, invite the parties to suggest consolidation of
any of the above contentions as appropriate and possible, and will address such
consolidation, as well as the definition of lead parties, further in the context of
prehearing conferences. For such purposes and as necessary and appropriate, the
Board retains the authority under 10 C.F.R. §2.714(f)(3) to determine priorities
and control the compass of the hearing through these and other measures, giving
due consideration to circumstances including the possibility of the filing of
additional, late-filed contentions after the issuance of the Staff’s SER.
C. Settlement
Commission regulations recognize that it is in the public interest for particular
issues or an entire matter to be settled, and encourageparties and licensing boards
to seek fair and reasonable settlements. 10 C.F.R. §2.759. We believe that the
issues in this proceeding may be amenable to settlement, encourage the parties to
seek a fair and reasonable settlement of any or all of the contentions that we are
approving in this Memorandum and Order, and advise the parties that they may
contact the Board Chair if they wish to have a Licensing Board Panel-appointed
Settlement Judge or Mediator assist in this endeavor.
IV. ORDER
In light of the foregoing discussion, and based upon the entire record of this
proceeding to date, it is, on this 9th day of July 2001, ORDERED:
1. CDPUC Contentions I.A/B, I.C, I.E, I.F, II.A, and II.B, and CAN
Contentions 1.5, 2.1, 3.1, 4.3, 4.4, and 6.1 in part are hereby admitted as
contentionsin this proceeding,as set forth above in this Memorandumand Order.
The requests of CDPUC and CAN for a hearing on these contentions are hereby
granted, and CDPUC and CAN are hereby admitted as parties to this proceeding.
The Licensing Board will issue a Notice of Hearing in the near future.
2. The remaining CDPUC and CAN contentions are hereby rejected.
106
3. A telephone prehearing conference will be convened on July 25, 2001,
at 1:30 p.m.,to address administrative and other appropriate matters, including
defining schedules for discovery against parties other than the Staff; the filing of
summary disposition motions; additional prehearing conferences; periodic status
reports relating to the RAI/SER process, discovery, late-filed contentions and
other matters; a possible site visit; the hearing of limited appearance statements;
and, insofar as possible, the evidentiary hearing. Parties should be prepared
at the prehearing conference to discuss these matters as well as the possible
consolidation of contentions and definition of lead parties, and the possibility of
settling some or all parts of this proceeding.
4. This Order is subject to appeal in accordance with the provisions of 10
C.F.R. §2.714a(a). Any petitions for review meeting applicable requirements set
forth in that section must be filed within 10 days of service of this Memorandum
and Order.
It is so ORDERED.
THE ATOMIC SAFETY AND
LICENSING BOARD
15
Ann Marshall Young, Chair
ADMINISTRATIVE JUDGE
Dr. Peter S. Lam
ADMINISTRATIVE JUDGE
Thomas D. Murphy
ADMINISTRATIVE JUDGE
Rockville, Maryland
July 9, 2001
15Copies of this Memorandum and Order were sent this date by Internet e-mail or facsimile transmission, if
available, to all participants or counsel for participants.
107
Cite as 54 NRC 109 (2001)CLI-01-19
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket Nos. 50-003-LT
50-247-LT
(consolidated)
CONSOLIDATED EDISON COMPANY
OF NEW YORK and
ENTERGY NUCLEAR INDIAN
POINT 2 LLC, and
ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point, Units 1 and 2) August 22, 2001
This proceeding concerns the application for approval of license transfers for
Indian Point 1 and Indian Point 2 nuclear power plants. The Commission finds
that three Petitioners to intervene have demonstrated standing and that each has
proffered at least one admissible issue. Therefore, the Commission grants their
requests for hearing. The Commission also addresses various procedural issues
and sets a schedule for the remainder of the proceeding.
LICENSE TRANSFER: FINANCIAL QUALIFICATIONS
10 C.F.R. §50.33(f)
The new owner and the new operator of the Indian Point plant are not
‘‘electric utilities’’ under our rules. Thus, they must demonstrate their financial
qualifications to own and/or operate the plants.See 10 C.F.R. §50.33(f).
109
LICENSE TRANSFER
RULES OF PRACTICE: SUBPART M (FORMAL HEARING)
CAN’s request for a Subpart G proceeding is expressly prohibited in a license
transfer proceeding.See 10 C.F.R. §2.1322(d) and Vermont Yankee Nuclear
Power Corp. and Amergen Vermont, LLC (Vermont Yankee Nuclear Power
Station), CLI-00-20, 52 NRC 151, 162 (2000).
RULES OF PRACTICE: WAIVER OF REGULATION
10 C.F.R. §2.1329
The Subpart M process is adequate to address CAN’s proposed issues which,
according to CAN, involve more than ‘‘mere financial matters.’’ We see no basis
at this time for a rule waiver pursuant to 10 C.F.R. §2.1329.
LICENSE TRANSFER
RULES OF PRACTICE: SUBPART M
Our Subpart M rules cover all license transfer issues:
Our Subpart M rules are intended to apply to more than just those cases presenting only
financial issues. We expected when promulgating Subpart M that most issues would be
financial....However,wealsopredictedthatPetitioners would raise other categories of
issues as well (such as foreign ownership, technical qualifications, and appropriate critical
staffing levels) . . . . For that reason, when promulgating Subpart M, we expressly declined
to adopt [a commenter’s] suggestion that we limit the scope of Subpart M proceedings to
financial matters.
Power Authority of the State of New York (James A. Fitzpatrick Nuclear Power
Plant; Indian Point, Unit 3), CLI-00-22, 52 NRC 266, 290-91 (2000). We see no
basis for finding the Subpart M process inadequate to address CAN’s proposed
issues.
LICENSE TRANSFER
RULES OF PRACTICE: SUBPART M
CANrequestsa‘‘broad-ranging’’hearingunderSubpartM.TheCommission’s
regulations provide that the Commission, on its own motion or in response to a
request from a Presiding Officer, may use additionalprocedures, such as a formal
hearingor an opportunityto cross-examinewitnesses, if necessary for ‘‘sufficient
accuracy.’’See 10C.F.R.§2.1322(d).Theregulationsprohibitmotionsbyparties
110
for ‘‘special procedures or formal hearings.’’Id.Thus, we deny CAN’s request
for a ‘‘broad ranging’’ hearing.See Indian Point 3,CLI-00-22, 52 NRC at 291.
LICENSE TRANSFER: FINANCIAL DATA
RULES OF PRACTICE: INTERPRETATION OF REGULATION
10 C.F.R. §50.33(f)(2)
The financial qualifications rule, 10 C.F.R. §50.33(f)(2), requires data for the
first five 12-month periods after the proposed transfer.
LICENSE TRANSFER: DISMISSAL OF APPLICATION;
FINANCIAL DATA
We decline to dismiss this license transferapplication. An applicationneednot
be automaticallyrejected wheneveran omission or erroris found.See Curatorsof
the University of Missouri,CLI-95-1, 41 NRC 71, 95-96 (1995),reconsideration
denied,CLI-95-8, 41 NRC 386, 395 (1995). The missing data can be submitted
for considerationby the Presiding Officer at the adjudicatoryhearing. Dismissing
this proceeding would not serve the parties’ best interests, as the deficiency in
the application can easily be cured and the focus should be on the numerous
substantive matters that remain to be resolved.
LICENSE TRANSFER: ISSUES (INCORPORATION BY
REFERENCE)
ISSUES: INCORPORATION BY REFERENCE
CAN has stated that it incorporates Cortlandt’s ‘‘contentions’’ by reference,
and Cortlandt has done the same for CAN’s issues. Cortlandt has presented
several admissible issues, and CAN has presented one. As both Petitioners have
independentlymettherequirementsforparticipation,wewillprovisionallypermit
Petitioners to adopt each other’s issues at this early stage of the proceeding. But
if the primary sponsor of an issue later withdraws from this proceeding, the
remainingsponsormust then demonstrateto the Presiding Officer its independent
abilityto litigatethis issue. Afailureto dosorenderstheissue subjectto dismissal
prior to the hearing.
111
ISSUES: INCORPORATION BY REFERENCE
RULES OF PRACTICE: ISSUES (UNTIMELY FILING)
If the requests to incorporate another petitioner’s issues had been made later,
the requesting party would have had to meet the standards for late filing of issues.
SeeConsolidatedEdisonCo.ofNewYork (IndianPoint,Units1and2),CLI-01-8,
53 NRC 225, 229-30 (2001) (applying to late-filed issues the Commission’s rule,
10 C.F.R. §2.1308(b), regarding late-filed petitions to intervene).
RULES OF PRACTICE: SUBPART M
10 C.F.R. §§2.1321(a), 2.1322(a)(1)
Under our rules governing license transfer proceedings, all participants are
permitted to submit statements of position and written testimony with supporting
affidavits ‘‘on the issues.’’See 10 C.F.R. §§2.1321(a) and 2.1322(a)(1). In
promulgating these two procedural rules, we did not limit parties to filing such
statements and affidavits on only their own issues. Thus, CAN and Cortlandt
are entitled to address all of the issues, whether or not they were the original
sponsor.See Power Authority of the State of New York (James A. Fitzpatrick
Nuclear Power Plant; Indian Point, Unit 3), LBP-00-34, 52 NRC 361, 363 (2000)
(referringto‘‘anintervenor[being]permittedtoparticipateinlitigationofanother
intervenor’s issues’’).
ISSUES: INCORPORATION BY REFERENCE
Although we are provisionally permitting incorporation of issues by reference
here, where each Petitioner has shown substantial effort in preparing its own
issues, we do not give carte blanche approval of the practice for all contexts.
For instance, we will not permit incorporation by reference where the effect
would be to circumvent NRC-prescribed page limits or specificity requirements.
Nor will we permit wholesale incorporation by reference by a petitioner who, in
a written submission, merely establishes standing and attempts, without more,
to incorporate the issues of other petitioners. Further, we would not accept
incorporation by reference of another petitioner’s issues in an instance where the
petitioner has not independently established compliance with our requirements
for admissionas a partyin its own pleadingsby submittingat least one admissible
issue of its own. Our contention-pleading rules are designed, in part, ‘‘to ensure
that full adjudicatory hearings are triggered only by those able to proffer at least
some minimalfactual and legalfoundationin supportof their contentions.’’Duke
Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC
328, 334 (1999).
112
LICENSE TRANSFER: INTERVENTION
Tointerveneasofrightinalicensingproceeding,apetitionermustdemonstrate
standing, i.e., that its ‘‘interest may be affected by the proceeding.’’See AEA
§189a, 42 U.S.C. §2239(a). In addition, in a license transfer proceeding, the
petition to intervene must raise at least one admissible issue.See 10 C.F.R.
§2.1306.
RULES OF PRACTICE: SUBPART M
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Our rules specify that, to demonstrate that issues are admissible in a Subpart
M proceeding, a petitioner must
(1) set forth the issues (factual and/or legal) that petitioner seeks to raise,
(2) demonstrate that those issues fall within the scope of the proceeding,
(3) demonstrate that those issues are relevant to the findings necessary to a grant of the
license transfer application,
(4) show that a genuine dispute exists with the applicant regarding the issues, and
(5) provide a concise statement of the alleged facts or expert opinions supporting
petitioner’s position on such issues, together with references to the sources and documents on
which petitioner intends to rely.
See 10 C.F.R. §2.1306;IndianPoint3,CLI-00-22,52 NRC at295and references
cited therein. Mere ‘‘notice pleading’’ is insufficient under these standards;
however, our requirement for specificity and factual support rather than vague or
conclusory statements is not intended to prevent intervention when material and
concrete issues exist.See id.
RULES OF PRACTICE: SUBPART M
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
10 C.F.R. §2.1306
Ourrulesexpresslyrequireaninterventionpetitionerto state thefactsorexpert
opinions supporting its position.See 10 C.F.R. §2.1306.
113
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
If an application lacks detail, a petitioner may meet its pleading burden
by providing ‘‘plausible and adequately supported’’ claims that the data are
either inaccurate or insufficient.See GPU Nuclear, Inc.(Oyster Creek Nuclear
Generating Station), CLI-00-6, 51 NRC 193, 207 (2000).
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES (AFFIDAVITS)
CANhasofferedanaffidavitbyitsexpert,EdwardA.Smeloff,butheprepared
that affidavit for the Indian Point 3 license transfer proceeding. We will consider
only the paragraphs of that affidavit that are of general applicability, and we will
ignore any paragraph that specifically relates to the Indian Point 3 plant.
RULES OF PRACTICE: ADMISSIBILITY OF ISSUES
‘‘[I]f the petitioner believes that the application fails to contain information
on a relevant matter as required by law, the identification of each failure and the
supporting reasons for the petitioner’s belief’’ constitute sufficient information
to show that a genuine dispute exists under the Subpart G analog of 10 C.F.R.
§2.1306.See 10 C.F.R. §2.714(b)(2)(iii).
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
10 C.F.R. §50.33(f)
Both Cortlandt and CAN express strong doubts that the Entergy companies
have the level of financial qualifications necessary to operate the Indian Point
plant safely.See 10 C.F.R. §50.33(f)(2). Cortlandt asserts that the application
does not demonstrate an appropriate margin between anticipated operating costs
and revenue projections, and that the Applicants do not provide evidence of
access to sufficient reserve funding. CAN alleges more generallythat Applicants’
revenue projections are unreasonable and their operating and maintenance cost
projectionsarefartoolow. Weadmitthejointlysponsoredfinancialqualifications
issue.
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FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Petitioners assert that the Applicants’ revenue projections are unreasonable
because they rest on achieving an average annual capacity factor of 85% for IP2.
We recentlyapproveda Presiding Officer’s admissionof a similar capacity-factor
issue in Indian Point 3. See Power Authority of the State of New York (James A.
Fitzpatrick Nuclear Power Plant; Indian Point, Unit 3), CLI-01-14, 53 NRC 488,
518-19,approving LBP-01-4, 53 NRC 121, 128 (2001). We accept Cortlandt and
CAN’s issue for adjudication.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
CortlandtquestionswhethertheEntergycompanies’operatingexperiencewith
other plants is even relevant to IP2 achieving an average plant factor of 85% in
light of IP2’s recent operating history. This issue, too, warrants further inquiry at
a hearing.See Indian Point 3,CLI-01-14, 53 NRC at 520-21. Accordingly, we
accept this subissue for litigation.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Cortlandt disputes whether the projected revenues for operation of IP2 are
reasonableand reliable. As this subissue notonlyhas been backedby calculations
derived from the Applicants’ own data but also relates to Cortlandt’s and CAN’s
challenge to the Applicants’ 85% capacity-factor projection, we accept it for
litigation.
115
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Cortlandt presents several interrelated subissues that amount to a claim that
Entergy’s costs will prove higher than anticipated. Cortlandt relies on an analysis
of data available from FERC Form 1 for the years 1995 through 1999. These
figures include the costs of operation, fuel, and maintenance reported by ConEd
and the estimated costs of capital to finance the purchase of the facility and
nuclear fuel and fuel oil inventories. Cortlandt alleges that the projected cost
figures are not only unsupported but also ‘‘plainly in contradiction with known
historical operating data.’’ We accept this issue for adjudication.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Cortlandt states that, according to the license transfer application, the Entergy
companies anticipate being able to fund fixed operating expenses from retained
earnings or by lines of credit. Cortlandt contends that, in the event of an extended
outage,EntergyIndianPoint2 will notbe able to payits projectedfixedoperating
expenses from retained earnings. We accept this subissue for adjudication, as it
rests on expert-backed claims that the transfer application relies on unexplained
or noncredible data.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Cortlandt’s final cost-based concern is whether achieving an average plant
capacity factor of 85% will cause the Applicants to incur additional costs, in
excessofthoseprojected. WefindthatCortlandthasnotstatedthisproposedbasis
with the particularity required for consideration in a license transfer adjudication.
Therefore, we reject it.
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FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Cortlandt has briefly raised the issue of whether the expiration of a collective
bargaining agreement with IP2 employees in 2004 will result in costs beyond
those accountedfor in cost projections. Since Cortlandtrelies only on speculation
to frame this issue, we decline to consider it further.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Cortlandtcontendsthat, underApplicants’projections,‘‘retainedearningswill
be reduced drastically and possibly wiped out entirely before IP2’s operating
license expires.’’ Cortlandt foresees that, after 2003, a shortfall in retained
earnings will require Entergy Indian Point 2 to access monies available to it
under intercompany agreements. Further, Cortlandt worries that any deficiency
in Entergy Indian Point 2’s showing of financial strength would be exacerbated
by any adverse operatingevents such as an extendedshutdown. Here, Cortlandt’s
queries are based on information contained in the license transfer application
itself and questionsthat followlogically after consideringIP2’s operatinghistory.
We therefore accept this subissue for adjudication.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Cortlandt raises an issue about the availability of funds under a line of credit
with Entergy Global Investments, Inc.But ‘‘[g]iven that our regulations do not
require supplemental funding as part of a showing of financial qualifications, we
do not see why the creditworthinessof the guarantor would be any more germane
than the amount of the supplemental funding guarantee itself ....’’Indian Point
3,CLI-01-14, 53 NRC at 540. We would consider this issue only if the Entergy
companies intended to rely on these credit arrangements to demonstrate their
financial qualifications to own and operate the Indian Point plant. We have held
117
that, ‘‘absent a demonstrated shortfall in the revenue predictions required by 10
C.F.R. §50.33(f),the adequacyof a corporateparent’ssupplementalcommitment
is not material to our license transfer decision.’’See Vermont Yankee,CLI-00-20,
52 NRC at 177.Accord Oyster Creek,CLI-00-6, 51 NRC at 205. Therefore, we
decline to consider the supplemental funding issue given that the Applicants do
not rely on supplemental funding as a basis for financial qualification.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
NRC: AUTHORITY
CortlandtnextinquireswhethertheEntergy-ConEdpowerpurchaseagreement
should be revised to ensure that Entergy Indian Point 2 has adequate financial
resources to cover total costs to operate in compliance with NRC requirements.
The sale of the Indian Point plant is, in Cortlandt’sview, tied to a power purchase
agreement with ConEd that provides for significantly below market rates for
electricity; moreover, the sale of electricity is the only source of income to cover
costs of operation. We find this issue well outside the boundsof a license transfer
proceeding and reject it. Enforcement or revision of a power purchase contract
between private parties, even when the parties are within the regulatory authority
of the NRC, is not within the jurisdiction of the NRC.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
NRC: AUTHORITY
Cortlandt submits that the proposed operating agreement is unenforceable
under New York State law because it ‘‘purports to indemnify’’ Entergy Indian
Point 2 forclaimsthat may be lodgedagainst it. An NRC adjudicatoryproceeding
is simply not the appropriate forum for examining a contractual agreement’s
legality under state law. To be effective, the license transfer application must be
approved by the New York Public Service Commission, among other agencies.
NRC’s charge is to protect the health and safety of the nuclear workforce and
the general population by ensuring the safe use of nuclear power. We depend on
118
the State of New York to handle any issues — such as contractual issues — that
are not in conflict with our jurisdiction and that are properly contested under that
state’s laws.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
We reject Cortlandt’s assertion that the operating agreement may interfere
with Entergy Indian Point 2’s financial ability to operate the Indian Point plant
safely. Cortlandt’s assertion is too vague and speculative to serve as a basis for
adjudication.See Indian Point 3,CLI-00-22, 52 NRC at 312. The distribution
of project revenues and profits pursuant to the operating agreement is not within
NRC’s purview, so long as the Indian Point plant has sufficient money to
operate safely and to meet decommissioning requirements. Although Cortlandt’s
assertions are couched in terms of jeopardy to the plant’s ability to operate
safely, we cannot admit an issue for adjudication based on mere conjecture.
‘‘Unsupportedhypotheticaltheoriesor projections. . . will notsupportinvocation
of the hearing process.’’Indian Point 3,CLI-00-22, 52 NRC at 315.
TECHNICAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
The Entergy companies assert they are technically qualified to operate IP2
because existing staff and personnel will become employees of Entergy Nuclear
Operations. CAN asserts that the Entergy companies are not technically qualified
to operate IP2. CAN urges that conditions be placed on the sale to protect the
health and safety of workers and the public; that the FSAR be verified; and that
an independentevaluation of IP2 be required before transfer because of historical
problems in NRC Region I. We decline to admit this issue, as CAN’s claims
are not directly linked to the license transfers at issue in this proceeding.See
IndianPoint 3,CLI-00-22,52 NRC at 309. With continuity in the workforce,any
problems alleged by CAN are operational problems that, if shown to exist, will
need to be remedied whether or not the license is transferred.
119
TECHNICAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
CAN has not squarely challenged the technical qualifications of the plant’s
intended employees.See Indian Point 3,CLI-00-22, 52 NRC at 309-
10. Rather, CAN has advanced the amorphous allegation that ConEd’s
‘‘systemic mismanagement’’ of Indian Point 2 has, in some undefined manner,
‘‘compromised the technical qualifications of existing personnel and support
organizations there.’’ CAN stresses that ‘‘Entergy would be relying on these
same technically unqualified staff.’’ CAN’s claims are too broad and too vague
to be suitable for adjudication.
TECHNICAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
CAN believes that verification of the FSAR and Design Basis Documentation
is necessary to meet the requirements for license transfer. This is another
operational issue outside the scope of a license transfer proceeding.See Indian
Point 3,CLI-00-22, 52 NRC at 310-11.
TECHNICAL QUALIFICATIONS
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Regarding CAN’s request for an independent evaluation of IP2 before any
license transfer, we declined to admit a similar issue espoused by CAN in Indian
Point 3 and in Vermont Yankee. See Indian Point 3,CLI-00-22, 52 NRC at 318,
citing Vermont Yankee,CLI-00-20, 52 NRC at 171. Region I’s performance in
overseeing the IP2 plant is far outside the scope of a license transfer proceeding.
See Vermont Yankee,CLI-00-20, 52 NRC at 171 and references cited therein.
120
LICENSE TRANSFER
DECOMMISSIONING FUNDS
10 C.F.R. §50.75
A reactor licensee must provide assurance of adequate resources to fund the
decommissioning of a nuclear facility by one of the methods described in 10
C.F.R. §50.75(e).See 10 C.F.R. §50.75(a). The Commission has held that a
showing of compliance with 10 C.F.R. §50.75 demonstrates sufficient assurance
of decommissioning funding.North Atlantic Energy Service Corp.(Seabrook
Station, Unit 1), CLI-99-6, 49 NRC 201, 217 (1999).
LICENSE TRANSFER
DECOMMISSIONING FUNDS
10 C.F.R. §50.75
Indeterminingtheamountofprepaymentofdecommissioningfunds,alicensee
may take credit for projected earnings on the trust funds using up to a 2% annual
rate of return.See 20 C.F.R. §50.75(e)(1)(i).
LICENSE TRANSFER
DECOMMISSIONING FUNDS
RULES OF PRACTICE: CHALLENGE OF COMMISSION RULE
Cortlandt questions whether the license transfer application contains the
information required by 10 C.F.R. §50.33(k)(1) pertaining to the adequacy
of its funding for decommissioning the Indian Point plant. ConEd initially
proposed to transfer a total of $430 million to Entergy Indian Point 2 to fund the
decommissioning trust. Cortlandt notes that the derivation of the $430 million
figure is not explained in the application, but surmises that it is the present value,
discountedat the rate of 2% realrate of return,of the calculatedminimumamount
of $558 million required at the expiration of the licenses in 2013. Cortlandt
states that, based on the results of a site-specific cost study contracted by ConEd,
$558 million will be insufficient, as the actual sum required for decommissioning
will be $578 million. In addition, ConEd apparently has committed to restore
the Indian Point plant site to ‘‘Greenfield’’ conditions, resulting in an additional
cost of $47 million. Even though the proposed decommissioning fund will meet
the NRC minimum amount, Cortlandt states that there will be a shortfall of $20
million for standard decommissioning and $67 million for restoring the property
to ‘‘Greenfield’’ conditions. Cortlandt’s decommissioning issues, as set out in
121
its petition, amount to an impermissible challenge to a generic decision made by
the Commission in its decommissioningrulemaking.See Seabrook,CLI-99-6, 49
NRC at 217 n.8.
LICENSE TRANSFER
DECOMMISSIONING FUNDS
RULES OF PRACTICE: CHALLENGE OF COMMISSION RULE;
WAIVER OF COMMISSION RULE
Cortlandt formally requested a waiver of 10 C.F.R. §50.75(e)(1)(i) to the
extent that compliance with the minimum funding requirement described in the
regulationisdeemedtoprovideadequateassuranceoftheabilitytodecommission.
Toshowunique‘‘specialcircumstances’’supportingits waiverrequest,Cortlandt
cites the fact that the present licensee has performed a site-specific study that
purportedlydocuments the inadequacy of the minimum funding level established
by regulatorycriteria. This study, accordingto Cortlandt, warrantsthe conclusion
that applicationof the rule would notserve the purposesfor which it was adopted.
See 10 C.F.R. §2.1329. We decline to grant the rule waiver or admit Cortlandt’s
decommissioning issue.
LICENSE TRANSFER
DECOMMISSIONING FUNDS
RULES OF PRACTICE: INTERPRETATION OF REGULATION
10 C.F.R. §50.75
We conclude that our generic funding rule serves both purposes for which
it was adopted, even in the alleged ‘‘special circumstances’’ of this case. The
two purposes of our regulations regarding decommissioning funding are (1) to
‘‘minimize the administrative effort of licensees and the Commission’’ and (2)
‘‘to provid[e] reasonable assurance that funds will be available to carry out
decommissioning in a manner that protects public health and safety.’’See Final
Rule: ‘‘General Requirements for Decommissioning Nuclear Facilities,’’ 53 Fed.
Reg.24,018,24,030(June27,1988). Priortoadoptionofthisrule,manylicensing
activities concerning decommissioning had to be determined on a case-by-case
basis, resulting in inconsistency and ‘‘inefficient and unnecessary administrative
effort.’’See id.at 24,019. The generic formulas set out in 10 C.F.R. §50.75(c)
were promulgated to fulfill the dual purposes of the rule. Using site-specific
estimates, as Cortlandtdemands,woulddefeatthe specific purposeof minimizing
inefficient administrative effort.
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DECOMMISSIONING FUNDS
We remain confident that our generic formula, along with our end-of-license
requirements, will result in adequate decommissioning funds:
[C]ombination of these steps, first establishing a general level of adequate financial
responsibility for decommissioning early in life, followed by periodic adjustment, and then
evaluation of specific provisions close tothe time ofdecommissioning, will provide reasonable
assurance that the Commission’s objective is met, namely that at the time of permanent end
of operations sufficient funds are available to decommission the facility in a manner which
protectspublichealthandsafety.MoredetailedconsiderationbyNRCearlyinlife...isnot
considerednecessary....
53 Fed. Reg. at 24,030-31.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: DECOMMISSIONING EXPENSES
Regardingtheadditionalexpensetodecommissionto‘‘Greenfield’’conditions,
we cannot require the Applicants to provide any monies above and beyond
those required for standard decommissioning as defined by NRC rules.See
Indian Point 3,CLI-00-22, 52 NRC at 303. Decommissioning funding under
NRC regulations does not include costs relating to nonradioactive structures and
materials beyond that necessary to terminate the NRC license. ‘‘Costs of disposal
of nonradioactive hazardous wastes not necessary for NRC license termination
are not included in the prescribed amounts.’’ 53 Fed. Reg. at 24,031.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: DECOMMISSIONING EXPENSES
Cortlandt questions whether Applicants have the resources to adequately fund
the environmentalremediation that it believes will be required at the Indian Point
plant site. We decline to admit this issue. The Intervenors have not alleged
any specific remediation that is likely to be undertaken in the next 5 years and
references to ‘‘environmental problems’’ are too vague to provide a basis for
a litigable issue. Because Cortlandt failed to identify a specific environmental
remediationactivitythat is likelyto occurwithin thenext 5 years,they havefailed
to raise a genuine issue about whether the Applicants’ 5-year revenue projections
are sufficient to cover the cost of any such remediation expense.
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FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: DECOMMISSIONING EXPENSES
CAN has challenged the adequacy of the provision for remediation of
radiological materials after the proposed license transfer because the purchase
and sale agreement between ConEd and Entergy Indian Point 2 contains a clause
whereby ConEd would retain any liability arising from a recent steam generator
tube rupture event. CAN arguesthat NRC will lose jurisdiction over ConEd if the
transfer is permitted, while only ConEd is financially responsible for remediation
expenses. CAN has failed to raise a litigable environmental remediation issue
because it has not described any specific remediation that will be necessary.
Further, the NRC retains enforcement authority to ensure adequate protection
of health and safety and the environment irrespective of any contract provision
between the parties to a transfer.
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Vague, unsupported issues are inadmissible.See 10 C.F.R. §2.1306.
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
EMERGENCY PLANNING
Cortlandtrequeststhatweexaminewhethertheapplicationisdeficientbecause
it fails to provide a radiological emergency response plan, required by 10 C.F.R.
§50.33(g), to account for the increased population and development of the
immediate vicinity of the Indian Point plant. Cortlandt states that, because of
the significant expansion of the communities in northern Westchester County in
the last 25 years, the evacuation of the population would be more difficult than
in the past. Cortlandt alleges that the application is deficient because it does not
consider the probability that a new evacuation plan will have to be designed and
may require significant additional expenses, ‘‘possibly including the construction
of new and improved highways to facilitate the rapid transportation of residents
awayfromanuclearaccident.’’ (Emphasisadded). We declineto acceptthisissue
for adjudication. In Indian Point 3,we rejected two similar issues, specifically,
the impact of the proposed transfers on the need for changes to the Emergency
Evacuation Plans and the appropriatenessof the proposed license transfer in view
124
of the plant’s proximity to metropolitan areas.See Indian Point 3,CLI-00-22,
52 NRC at 317. We noted in the earlier case that the new licensees would have
to meet all of our regulatory requirements concerning emergency planning and
preparedness.See id.We also concluded IP3’s proximity to metropolitan areas
and to locations for sporting and cultural events was not relevant to the question
whether to approve the license transfer.See id.The same reasoning applies in the
instantcase. Cortlandt’semergencyresponseclaimsrelatetotheeverydayrunning
of the plant, not to license transfer. Moreover, Cortlandt provides nothing more
than speculation that Entergy’s compliance with our emergency response plan
regulations will necessitate large unanticipated expenditures,renderingEntergy’s
5-year cost-and-revenueprojections unreliable.
FINANCIAL QUALIFICATIONS
LICENSE TRANSFER: DISPOSAL OF SPENT FUEL;
INTERVENTION (ADMISSIBILITY OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
Safe and adequate storage or disposal of spent nuclear fuel is an ongoing
operational issue that must be addressed by whoever owns the plant; as such, it
ordinarily falls outside the scope of a license transfer proceeding.Oyster Creek,
CLI-00-6, 51 NRC at 213-14. However, Cortlandt bases its challenge primarily
on the anticipated cost of additional storage capacity rather than on the safety,
environmental, or operational aspects of spent fuel storage. Applicants have
provided us nothing to show that their projected cost figures have accounted for
the undefined expense of solving their admitted short-term problem of interim
spent fuel storage. In the past the Commission has refused to consider spent fuel
storage issues in the context of license transfer proceedings.See Vermont Yankee,
CLI-00-20, 52 NRC at 171;Oyster Creek,CLI-00-6, 51 NRC at 207-08. In those
earlier cases, however, spent fuel issues were proffered in a purely operational
context or the anticipated storage problems were too far down the time line to
assume a role in the license transfer decision. Unlike those cases, the instant case
presents a situation where an expense — not quantified in the application — will
be incurred by the transferee within the carefully scrutinized 5-year period after
the requested license transfer. Therefore, we admit this issue as a subissue of the
financial qualifications question.
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LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
NRC: AUTHORITY
CAN asserts that approval of the license transfer would compromise NRC’s
regulatory authority over ConEd’s continued responsibility for radiological
materials and undermine NRC’s ability to protect public health and safety. CAN
is concerned because, under the Applicants’ Asset Purchase & Sale Agreement,
ConEdretainsliability forradiologicalmaterialsdepositedoffsiteunderits period
of ownership. If NRC approves the license transfer, contends CAN, the agency’s
authority over ConEd with respect to any such radiological materials would be
compromised because the NRC would no longer have direct regulatory authority
over ConEd after it is released from the Indian Point plant license. In Indian
Point 3,CAN similarly asserted that approval of the license transfer would
deprive the Commission of any post-transfer regulatory authority to ensure that
the previous owner (Power Authority of the State of New York) satisfies the
NRC’s requirements for decommissioning and remediation of the site because
the Commission’s regulations do not provide for retention of authority and
enforcement power over a former licensee.See Indian Point 3,CLI-01-14,
53 NRC at 552-53. We examined in detail the issue of our jurisdiction over
unlicensed persons and concluded that our authority extends to any person ‘‘who
engages in conduct affecting activities within the Commission’s subject-matter
jurisdiction— includingthose who. . .have been engagedin licensed activities.’’
See id.at 554-55 and references cited therein. Similarly, we conclude here that
CAN’s worries about the Commission’s continuing authority over ConEd are
unfounded. Moreover, the circumstances raised by CAN to justify its contention
are purely speculative at this point. We decline to consider this issue further.
LICENSE TRANSFER: INTERVENTION (ADMISSIBILITY
OF ISSUES)
INTERVENTION: ADMISSIBILITY OF ISSUES
NRC: AUTHORITY
Cortlandt contends loosely that the proposed transfer is not in the public
interest. This issue is too broad and vague to be suitable for adjudication.
Moreover, NRC’s mission is solely to protect the public health and safety. It is
not to make general judgments as to what is or is not otherwise in the public
interest—otheragencies,suchastheFederalEnergyRegulatoryCommissionand
state public service commissions, are charged with that responsibility. Because
126
Cortlandt’s ‘‘public interest’’ issue seems to go beyond the NRC’s statutory
duties, and also lacks sufficient specificity, we decline to admit it.
MEMORANDUM AND ORDER
I. INTRODUCTION
This proceeding involves an application seeking the Commission’s authoriza-
tion for Consolidated Edison Company of New York (‘‘ConEd’’) to transfer its
ownership interest in, and operating/maintenance responsibility for, the Indian
Point Nuclear Generating Units No. 1 and 2 (collectively, ‘‘the Indian Point
plant’’) to Entergy Nuclear Indian Point 2, LLC (‘‘Entergy Indian Point 2’’) and
Entergy Nuclear Operations, Inc. (‘‘Entergy Nuclear Operations’’), respectively.
The Indian Point plant is located in Westchester County, New York, beside the
HudsonRiver. Its propertylies partiallywithinthe TownofCortlandtandentirely
within the Hendrick Hudson School District. ConEd and the Entergy companies
(collectively ‘‘Applicants’’)submitted both a redacted and an unredactedversion
of their application to the Commission on December 12, 2000, pursuant to sec-
tion 184 of the Atomic Energy Act of 1954 (‘‘AEA’’), 42 U.S.C. §2234, and
section 50.80 of the Commission’s regulations.
1 The redacted version omitted
financial information relevant to the estimated costs of the plant’s operation and
maintenance.
On January 29, 2001, the Commission published in the Federal Register a
noticeoftheIndianPoint2application.2Inresponsetothisnotice,theCommission
received petitions to intervene and requests for hearing from two entities wishing
to oppose the license transfer application. The Petitioners are Citizens Awareness
Network(‘‘CAN’’)andtheTownofCortlandttogetherwiththeHendrickHudson
School District (collectively ‘‘Cortlandt’’).
3
1 See 42 U.S.C. §2234 (precluding the transfer of any NRC license unless the Commission both finds the transfer
in accordance with the AEA and gives its consent in writing).See also 10 C.F.R. §50.80, which reiterates the
requirements of AEA §184, sets forth the filing requirements for a license transfer application, and establishes the
following test for approval of such an application: (1) the proposed transferee is qualified to hold the license and
(2) the transfer is otherwise consistent with law, regulations, and Commission orders.
2 See Consolidated Edison Company of New York, Inc.; Indian Point Nuclear Generating Unit Nos. 1 and 2;
Notice of Consideration of Approval of Transfer of Facility Operating Licenses and Conforming Amendments, and
Opportunity for a Hearing, 66 Fed. Reg. 8122.3 See ‘‘Citizens Awareness Network’s Request for Hearing and Petition to Intervene in the License Transfers for
Indian Point Nuclear Generating Units Nos. 1 and 2’’ (Feb. 20, 2001) (‘‘CAN’s Petition’’) and ‘‘Petition for Leave
To Intervene and Request for Hearing in the Consideration of Approval of the Proposed License Amendment and
Transfer of Indian Point 2 Nuclear Power Plant Operating License and the Indian Point 1 Provisional Operating
License to Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc. and Request for Additional
Time’’ (Feb. 20, 2001) (‘‘Cortlandt’s Petition’’).
(Continued)
127
Cortlandt raised several issues and sought access to the unredacted version
of the application.
4 Citing lack of access to the unredacted application, CAN
raised no specific issues, but stated general concerns regarding the technical and
financial qualifications of the Entergy companies. CAN also requested that the
proceedingbe terminatedor suspended
5 or thatit be givenaccessto an unredacted
version of the transfer application, with appropriateconfidentiality arrangements,
and additional time to submit its issues. The Commission denied the motion to
terminate or suspend the proceeding, but granted both CAN and Cortlandt an
extension of time within which to submit or revise any issues after gaining access
to the confidential portions of the transfer application.See CLI-01-8, 53 NRC
225.
CAN submitted its issues on April 9, 2001,
6 and Cortlandt submitted its issues
on April 12, 2001.
7 Applicants filed answers and both CAN and Cortlandt filed
replies.8
The NRC Staff is not participatingas a party in the adjudicatoryportionof this
proceeding.See generally 10 C.F.R. §2.1316(b), (c). We consider the pleadings
under Subpart M of our proceduralrules.See 10 C.F.R. §§2.1300-2.1331.
For the reasons set forth below, we grant the requests for hearing of CAN and
Cortlandt and we admit certain issues involving whether the Entergy companies
have demonstrated their financial ability to operate and maintain the Indian Point
plant safely.
Entergy Nuclear Operations and Petitioners CAN and Cortlandt participated in the recently completed license
transfer proceeding involving the Indian Point 3 reactor.See Power Authority of the State of New York (James A.
FitzPatrick Nuclear Power Plant; Indian Point, Unit 3), CLI-01-14, 53 NRC 488 (2001);id.,CLI-00-22, 52 NRC
266 (2000) (hereinafter referred to as ‘‘Indian Point 3’’).
4 See Cortlandt’s Petition.
5 CAN requested the Commission to suspend this proceeding until the Commission completes the Indian Point 3
license transfer proceeding and until the NRC completes consideration of CAN’s Petition for Enforcement Action
pursuant to 10 C.F.R. §2.206 concerning alleged regulatory violations and systemic mismanagement by ConEd at
IP2.See CLI-01-8, 53 NRC 225, 228 (2001).
6 See ‘‘Citizens Awareness Network, Inc.’s Contentions Challenging the License Transfer Applications for Indian
Point Nuclear Generating Unit Nos. 1 and 2’’ (‘‘CAN’s Contentions’’). Although our Subpart M rules refer to
issues,CAN has consistently used the term ‘‘contentions.’’See 10 C.F.R. §2.1306(b)(2).
7 See‘‘SubmissionofIssuesbyTownofCortlandt,NewYorkandHendrickHudsonSchoolDistrict’’(‘‘Cortlandt’s
Issues’’) and ‘‘Submission of Redacted Issues by Town of Cortlandt, New York and Hendrick Hudson School
District’’ (‘‘Cortlandt’s Redacted Issues’’).8 See ‘‘Applicants’ Answer to Citizens Awareness Network, Inc.’s Revised Petition for Leave To Intervene and
Request for Hearing’’ (Apr. 19, 2001) (‘‘Applicants’ Answer to CAN’’); ‘‘Applicants’ Answer to Submission of
Issues by Town of Cortlandt, New York and Hendrick Hudson School District’’ (Apr. 23, 2001) (‘‘Applicants’
Answer to Cortlandt’’); ‘‘Proprietary Annex to Applicants’ Answer to Submission of Issues by Town of Cortlandt,
New York and Hendrick Hudson School District’’ (Apr. 23, 2001) (‘‘Applicants’ Cortlandt Annex’’); ‘‘Citizens
Awareness Network, Inc.’s Reply to Applicants’ Answer to CAN’s Petition for Leave To Intervene and Request for
Hearing on the License Transfer Applications for Indian Point Nuclear Generating Unit Nos. 1 and 2’’ (Apr. 26,
2001) (‘‘CAN’s Reply’’); ‘‘Town of Cortlandt and Hendrick Hudson School District’s Reply to Applicants’ Answer
to Submission of Issues’’ (Apr. 30, 2001) (‘‘Cortlandt’s Reply’’); and ‘‘Proprietary Annex to Reply of Town of
Cortlandt, New York and the Hendrick Hudson School District’’ (Apr. 30, 2001) (‘‘Cortlandt’s Annex’’).
128
II. THE LICENSE TRANSFER APPLICATIONS
ConEd, Entergy Indian Point 2, and Entergy Nuclear Operations have filed an
application seeking to transfer the ownership of the Indian Point plant to Entergy
Indian Point 2, and both the operating and maintenance responsibilitiesfor Indian
Point Unit 2 (‘‘IP2’’) and the maintenance responsibility for Indian Point Unit 1
(‘‘IP1’’) to Entergy Nuclear Operations.
9 ConEd will transfer decommissioning
funds for both plants to Entergy Indian Point 2 at the close of the sale. The
responsibility for decommissioning both plants would also transfer to Entergy
Indian Point 2.
The new owner and the new operator of the Indian Point plant are not
‘‘electric utilities’’ under our rules. Thus, they must demonstrate their financial
qualifications to own and/or operate the plants.See 10 C.F.R. §50.33(f).
The Entergy companies have submitted 5-year cost-and-revenue projections in
accordance with our rules.
10 Much of the material was submitted as proprietary
financial information and has been withheld from public disclosure.
Upon closing, essentially all employees within ConEd’s Nuclear Generation
Department,andcertainotheremployeessupportingthatdepartment,willbecome
employees of Entergy Nuclear Operations. The application proposes neither
physical changesto Indian Point plant facilities nor operationalchanges, but does
request administrative changes to the licenses that are necessary to reflect the
proposed transfers.See 66 Fed. Reg. at 8122.
Before deciding Petitioners’ standing and the admissibility of their issues, we
first address threshold procedural matters.
III. PRELIMINARY PROCEDURAL ISSUES
A. CAN’s Request for a Formal Subpart G Hearing
CAN has requested a formal hearing under Subpart G of our procedural
regulationsratherthan underSubpartM proceduresthatnormallyapplyto license
transfer adjudications.See CAN’s Contentions at 24, 31-32; CAN’s Reply at 5-9.
CAN contends that the ‘‘special circumstances’’ of this case warrant a ‘‘more
in-depth forum’’ to determine the Entergy companies’ qualifications to own and
operate the Indian Point plant.See CAN’s Reply at 8. The special circumstances
alleged by CAN include allegations of historical and continuing problems at IP2
and its request for an independent evaluation of the plant. CAN acknowledges
9 IP1, which ceased to operate in 1974, has been in safe shutdown mode since that time.
10CAN and Cortlandt dispute whether the Applicants submitted financial data for a sufficient period of time.See
Cortlandt’s Petition at 19-20; Cortlandt’s Issues at 11; CAN’s Contentions at 32-33. We address this issue in detail,
infra Section III.B.
129
that the issues it considers special are ‘‘not properly reviewable within a simple
license transfer.’’See CAN’s Contentions at 24.
CAN’s request for a Subpart G proceeding is expressly prohibited in a license
transfer proceeding.See 10 C.F.R. §2.1322(d) and Vermont Yankee Nuclear
Power Corp. and Amergen Vermont, LLC (Vermont Yankee Nuclear Power
Station), CLI-00-20, 52 NRC 151, 162 (2000). As it did in the Indian Point 3
license transfer proceeding, CAN invokes 10 C.F.R. §2.1329, which authorizes
the Commission to waive a rule when, ‘‘because of special circumstances
concerning the subject of the hearing, application of a rule or regulation would
not serve the purposes for which it was adopted.’’ 10 C.F.R. §2.1329(b).See
CAN’s Contentions at 31; CAN’s Reply at 6.
In the earlier case, the ‘‘special circumstances’’ alleged by CAN were that
matters in the license transfer proceeding were not strictly financial in nature.
IndianPoint3,CLI-00-22,52NRCat290. Inthiscase,CANagainassertsthatthe
issues involve more than ‘‘mere financial matters’’ and that the hearing process
needs the ‘‘intensive investigatory power’’ that cross-examination provides.See
CAN’s Contentions at 31. In denying CAN’s earlier request, we observed that
our Subpart M rules cover all license transfer issues:
Our Subpart M rules are intended to apply to more than just those cases presenting only
financial issues. We expected when promulgating Subpart M that most issues would be
financial . . . . However, we also predicted that Petitioners would raise other categories of
issues as well (such as foreign ownership, technical qualifications, and appropriate critical
staffinglevels)....Forthatreason,whenpromulgatingSubpart M, we expressly declined
to adopt [a commenter’s] suggestion that we limit the scope of Subpart M proceedings to
financial matters.
Indian Point 3,CLI-00-22, 52 NRC at 290-91. We see no basis at this time
for finding the Subpart M process inadequate to address CAN’s proposed issues.
Accordingly, we deny CAN’s request for a Subpart G hearing.
In the alternative, CAN requests a ‘‘broad-ranging’’ hearing under Subpart
M.See CAN’s Contentions at 31. The Commission’s regulations provide that
the Commission, on its own motion or in response to a request from a Presiding
Officer,mayuseadditionalprocedures,suchasaformalhearingoranopportunity
to cross-examinewitnesses, if necessaryfor ‘‘sufficientaccuracy.’’See 10 C.F.R.
§2.1322(d). The regulations prohibit motions by parties for ‘‘special procedures
or formal hearings.’’Id.Thus, we deny CAN’s request for a ‘‘broad ranging’’
hearing.See Indian Point 3,CLI-00-22, 52 NRC at 291. The Commission will
consider additional procedures if it deems them necessary as this proceeding
moves forward.
130
B. Applicants’ Submission of Financial Data
Both Cortlandt and CAN maintain that the license application is deficient
because the Applicants submitted financial data only for the years 2001 through
2005.11 As the Applicants had requested that the license transfer be effective on
May 11, 2001, CAN and Cortlandt contend that the data are insufficient because
Applicants provided projections for only 1 partial year (i.e., 2001) and 4 full
years of operation by the transferee. CAN argues that ‘‘the Entergy companies
have disregarded the most basic requirement — a simple filing requirement —
for demonstrating financial qualifications.’’See CAN’s Reply at 23. Further,
Cortlandt questions whether the alleged shortcoming renders the application ‘‘so
patently deficient that it should be dismissed or supplemented’’ for failure to
provide the required financial information.See Cortlandt’s Issues at 11.
The Applicants argue that the data are sufficient under our rule, which states:
‘‘The applicant shall submit estimates for total annual operating costs for each
of the first five years of operation of the facility.’’See 10 C.F.R. §50.33(f)(2).
The Applicants apparently believe that, since 2001 was to be the first year of
operation, supplying figures for 2001 through 2005 complies with our rule. The
Petitioners, on the other hand, contend that the rule requires data for five full
12-month periods after the effective date of the license transfer.
We agree with the Petitioners that the financial qualifications rule requires
data for the first five 12-month periods after the proposed transfer; however, we
decline to dismiss this license transfer application. An application need not be
automatically rejected whenever an omission or error is found.See Curators of
the University of Missouri,CLI-95-1, 41 NRC 71, 95-96 (1995),reconsideration
denied,CLI-95-8, 41 NRC 386, 395 (1995). The missing data can be submitted
for consideration by the Presiding Officer at the adjudicatory hearing.See id.
Dismissing this proceeding would not serve the parties’ best interests, as the
deficiency in the application can easily be cured and the focus should be on the
numerous substantive matters that remain to be resolved.
12
C. Incorporation of Issues by Reference
CAN has stated that it incorporates Cortlandt’s ‘‘contentions’’ by reference,
and Cortlandt has done the same for CAN’s issues.See CAN’s Contentions at
1; Cortlandt’s Issues at 15. Applicants, however, argue that such incorporation
should be rejected because each petitioner must independentlymeet the threshold
requirements for participation, i.e., both demonstrate standing to participate and
11See Cortlandt’s Petition at 19-20; Cortlandt’sIssues at 11; CAN’s Contentions at 32-33.12We note that the Applicants have supplied the missing data to the NRC Staff and to the Petitioners.
131
proffer at least one admissible issue.See Applicants’ Answer to Cortlandt at 14;
Applicants’ Answer to CAN at 7-8.
Cortlandt has presented several admissible issues, and CAN has presented
one.See Section IV.B,infra.As both Petitioners have independently met the
requirements for participation, we will provisionally permit Petitioners to adopt
each other’s issues at this early stage of the proceeding.
13 But if the primary
sponsor of an issue later withdraws from this proceeding, the remaining sponsor
must then demonstrate to the Presiding Officer its independent ability to litigate
this issue. A failure to do so renders the issue subject to dismissal prior to the
hearing.
Under our rules governing license transfer proceedings, all participants are
permitted to submit statements of position and written testimony with supporting
affidavits ‘‘on the issues.’’See 10 C.F.R. §§2.1321(a) and 2.1322(a)(1). In
promulgating these procedural rules, we did not limit parties to filing such
statements and affidavits on only their own issues. Thus, CAN and Cortlandt
are entitled to address all of the issues, whether or not they were the original
sponsor.14 Theagencyhas permittedincorporationofothers’contentionsor issues
in the past
15 and the practice is also consistent with that of the federal courts.
16
We add a cautionary note. Although we are provisionally permitting incorpo-
ration of issues by reference here, where each Petitioner has shown substantial
effort in preparing its own issues, we do not give carte blanche approval of
the practice for all contexts. For instance, we will not permit incorporation
by reference where the effect would be to circumvent NRC-prescribed page
13If the requests had been made later, they would have had to meet the standards for late filing of issues.See
Consolidated EdisonCo.of New York(Indian Point, Units 1 and 2), CLI-01-8, 53 NRC225, 229-30 (2001) (applying
to late-filed issues the Commission’s rule, 10 C.F.R. §2.1308(b), regarding late-filed petitions to intervene);
Indian Point 3,CLI-00-22, 52 NRC at 319 (‘‘The Commission will not consider new issues or new arguments or
assertions related to the admitted issues at the hearing, unless they satisfy our rules for late-filed issues (10 C.F.R.
§2.1308(b))’’).See also Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant;
Indian Point, Unit 3), LBP-00-34, 52 NRC 361, 363 (2000) (‘‘further consideration ...ofthedismissedcontention,
should another party seekto litigate it, would require a balancing of the factors applicable to late-filed contentions’’).
14See Indian Point 3,LBP-00-34, 52 NRC at 363 (referring to ‘‘an intervenor [being] permitted to participate in
litigation of another intervenor’s issues’’).
15See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-731, 17 NRC 1073, 1074
(1983);Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86-22, 24 NRC 103, 106
(1986) (relying on ALAB-731,supra).
16See 5 Charles A. Wright & Arthur R. Miller,Federal Practice and Procedure: Civil §1326 (available in
WestLaw, FPP Library) (regarding Fed. R. Civ. P. 10(c): (‘‘allegations in a prior effective pleading in the same
action can be incorporated by reference regardless of the pleading in which the matter appears and regardless of the
identity of the party who issued the pleading’’); Fed. R. Civ. P. 10(c) (‘‘Statements in a pleading may be adopted by
reference in . . . another pleading or in any motion’’).
132
limits17 or specificity requirements.
18 Nor will we permit wholesale incorporation
by reference by a petitioner who, in a written submission, merely establishes
standingandattempts, withoutmore,toincorporatethe issuesofotherpetitioners.
Further, we would not accept incorporation by reference of another petitioner’s
issues in an instance where the petitioner has not independently established
compliance with our requirements for admission as a party in its own pleadings
by submitting at least one admissible issue of its own. Our contention-pleading
rules are designed, in part, ‘‘to ensure that full adjudicatoryhearingsare triggered
only by those able to proffer at least some minimal factual and legal foundation
in support of their contentions.’’
19
IV. DISCUSSION
Tointerveneasofrightinalicensingproceeding,apetitionermustdemonstrate
standing, i.e., that its ‘‘interest may be affected by the proceeding.’’See AEA
§189a, 42 U.S.C. §2239(a). In addition, in a license transfer proceeding, the
petition to intervene must raise at least one admissible issue.See 10 C.F.R.
§2.1306. As discussed below, both CAN and Cortlandt have demonstrated
standing and have raised at least one admissible issue. We therefore set the case
for hearing.
A. Standing
Applicants do not contest the standing of any of the three entities. We recently
granted standing to CAN and Cortlandt in a license transfer proceeding involving
anothernuclear unit on the same site as the Indian Point plant.See IndianPoint 3,
CLI-00-22, 52 NRC at 293-95. We grant standing to CAN and Cortlandt in this
proceeding for the same reasons.
B. Admissibility of Issues
Our rules specify that, to demonstrate that issues are admissible in a Subpart
M proceeding, a petitioner must
17See, e.g., Hydro Resources, Inc.(2929 Coors Road, Suite 101, Albuquerque, NM 87120), LBP-98-5, 47 NRC
119, 121 n.1 (1998) (‘‘Incorporating the Petitioners’ hearing petition by reference is an inartful attempt to bypass
[the regulation’s 10-]page limitation’’),interlocutory appeal dismissed,CLI-98-8, 47 NRC 314 (1998).
18See, e.g., International Uranium (USA) Corp.(Receipt of Material from Tonawanda, New York), LBP-98-21,
48 NRC 137, 142 n.7 (1998);Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-3,
29 NRC 234, 240-41 (1989),aff’d,ALAB-915, 29 NRC 427 (1989);Tennessee Valley Authority (Browns Ferry
Nuclear Plant, Units 1 and 2), LBP-76-10, 3 NRC 209, 216 (1976).19Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999).
133
(1) set forth the issues (factual and/or legal) that petitioner seeks to raise,
(2) demonstrate that those issues fall within the scope of the proceeding,
(3) demonstrate that those issues are relevant to the findings necessary to a grant of the
license transfer application,
(4) show that a genuine dispute exists with the applicant regarding the issues, and
(5) provide a concise statement of the alleged facts or expert opinions supporting
petitioner’s position on such issues, together with references to the sources and documents on
which petitioner intends to rely.
See 10 C.F.R. §2.1306;IndianPoint3,CLI-00-22,52 NRC at295and references
cited therein. Mere ‘‘notice pleading’’ is insufficient under these standards;
however, our requirement for specificity and factual support rather than vague or
conclusory statements is not intended to prevent intervention when material and
concrete issues exist.See id.
Ourrulesexpresslyrequireaninterventionpetitionerto state thefactsorexpert
opinions supporting its position.See 10 C.F.R. §2.1306. If an application lacks
detail, a Petitioner may meet its pleading burden by providing ‘‘plausible and
adequately supported’’ claims that the data are either inaccurate or insufficient.
See GPU Nuclear, Inc.(Oyster Creek Nuclear Generating Station), CLI-00-6, 51
NRC 193, 207 (2000).
20
To support its proposed issues, Cortlandt relies primarily on the affidavit of
its expert, George E. Sansoucy.
21 Mr. Sansoucy has used information available
from public sources (e.g., data from FERC-1 forms filed by Applicants) as a
starting point and made assumptions within his area of expertise to interpret
such information. Cortlandt has also used information — often generated or
commissioned by ConEd — obtained from filings before other government
agencies which are separately considering the instant license transfer. CAN, too,
has supplied extensive material, but some of it is irrelevant to a license transfer
proceeding (e.g., its petition under 10 C.F.R. §2.206 and an analysis by David
Lochbaumof the Union of ConcernedScientists that mightserve as supportin the
2.206 proceeding, but has little or no value in this license transfer proceeding).
CAN has offered an affidavit by its expert, Edward A. Smeloff, but he prepared
thataffidavitforthe IndianPoint3licensetransferproceeding.22We will consider
only the paragraphs of that affidavit that are of general applicability, and we will
ignoreany paragraphthatspecifically relatesto the IndianPoint3 plant. CAN has
20‘‘[I]f the petitioner believes that the application fails to contain information on a relevant matter as required
by law, the identification of each failure and the supporting reasons for the petitioner’s belief’’ constitute sufficient
information to show that a genuine dispute exists under the Subpart G analog of 10 C.F.R. §2.1306.See 10 C.F.R.
§2.714(b)(2)(iii).
21Applicants have not challenged Mr. Sansoucy’s expertise.
22See ‘‘Declaration of Edward A Smeloff’’ (Jan. 10, 2001) in the matter of Power Authority of the State of New
York and Entergy Nuclear Fitzpatrick LLC, Entergy Nuclear Indian Point 3 LLC, and Entergy Nuclear Operations,
Inc., Docket Nos. 50-333-LT and 50-286-LT.
134
also used information available in NRC publications to provide factual support
for its proposed issues.
We now turn to the actual proposed issues in this case to determine whether
they are admissible under 10 C.F.R. §2.1308. Some issues we find admissible,
and some not. For convenience, we have grouped related issues.
1. Financial Qualifications Issues
Both Cortlandt and CAN express strong doubts that the Entergy companies
havetheleveloffinancialqualificationsnecessarytooperatetheIndianPointplant
safely.See 10 C.F.R. §50.33(f)(2). Cortlandt asserts that the application does
not demonstrate an appropriate margin between anticipated operating costs and
revenue projections, and that the Applicants do not provide evidence of access
to sufficient reserve funding. Under the ‘‘financial qualifications’’ umbrella,
Cortlandt raises numerous subissues — some of which overlap.
23 CAN alleges
more generally that Applicants’ revenue projections are unreasonable and their
operating and maintenance cost projections are far too low. We admit the jointly
sponsored financial qualifications issue, limited to the bases approved in the
following discussion of Petitioners’ itemized claims.
a. Applicants’ 85% Capacity-Factor Projection
Petitioners assert that the Applicants’ revenue projections are unreasonable
because they rest on achieving an average annual capacity factor
24 of 85% for
IP2. Cortlandt challenges this projection as ‘‘fantasy,’’ and both Petitioners note
that no supporting information for this assertion appears in the license transfer
application.SeeCortlandt’sIssuesat5-6;CAN’sContentionsat34;CAN’sReply
at23-24.CitingdataobtainedfromFederalEnergyRegulatoryCommissionforms
filed by Applicants, George E. Sansoucy, the expert retained by Cortlandt, notes
that the average annual capacity factor for IP2 from 1995 through 1999 was
57.66% if no adjustment is taken for an extended shutdown.See Letter from
George E. Sansoucy to Paul V. Nolan at 2, Feb. 20, 2001 (‘‘Sansoucy Letter’’).
According to CAN, the NRC Staff has stated that, without taking an extended
shutdowninto account,the averagefor1994through1999was 66.1%.
25 Focusing
on recent operation, CAN says that the average capacity factor for 1997-1998
23In Section III.B,supra,we considered CAN’s and Cortlandt’s objection that the Applicants provided only 41/2
years of cost-and-revenue projections.
24‘‘Capacityfactor’’is‘‘theratioofthe...electricitygenerated,fortheperiodoftimeconsidered,totheenergy
that could have been generated at continuous full-power operation during the same period.’’See Indian Point 3,CLI-
01-14, 53 NRC at 510,citing ‘‘Glossary of Nuclear Terms,’’ at http://www.nrc.gov/NRC/EDUCATE/GLOSSARY.
25See CAN’s Contentions at 35,citing the NRC Web site at
http://www.nrc.gov/NRC/NUREGS/SR1350/V12/sr1350v12.html#1 58.
135
was 30.7%, as IP2 suffered 17 monthsof outage in that 2-year period.See CAN’s
Contentions at 34-35.
CAN claims generally that ConEd has repeatedly failed to address the
fundamental problems responsible for loss of production and, in light of IP2’s
history of being a ‘‘troubled’’ reactor, cost-and-revenue projections should be
tested for a 1-year outage to determine whether the Entergy companies are
financially qualified to own and operate the Indian Point plant.See CAN’s
Contentionsat35. CANarguesthat‘‘[t]hemereclaimthatEntergy’sperformance
record at other reactorsjustifies their assumption that such performancewould be
immediately achievable at Indian Point 2 does not constitute evidence in support
of these newly formed non-utilities’ financial qualifications.’’See CAN’s Reply
at 26-27.
We recently approved a Presiding Officer’s admission of a similar capacity-
factor issue in Indian Point 3. See Indian Point 3,CLI-01-14, 53 NRC at 518-19,
approving LBP-01-4, 53 NRC 121, 128 (2001). We accept Cortlandt and CAN’s
issue for adjudication in this case as well.
In a related vein, Cortlandt also questions whether the Entergy companies’
operatingexperiencewithotherplantsisevenrelevanttoIP2achievinganaverage
plantfactorof85%inlightofIP2’srecentoperatinghistory.SeeCortlandt’sIssues
at 7. Further, Cortlandt maintains that ‘‘[e]ven if a description of experience with
other plants was provided,such experience would be totally irrelevant because
it would not consider the particular capital improvements needs, or operating
history of IP2, which is the sole source of Plant generated revenues.’’Id.This
issue, too, warrants further inquiry at a hearing.See Indian Point 3,CLI-01-14,
53 NRC at 520-21. Accordingly, we accept this subissue for litigation.
b. Projected Revenues
Cortlandtalso disputeswhether the projectedrevenuesfor operationof IP2 are
reasonable and reliable. Specifically, Cortlandt claims that Applicants’ estimates
of costs and revenues are ‘‘facially incredible and cannot be reconciled with
known information.’’See Cortlandt’s Redacted Issues at 6. Citing proprietary
data,26 Cortlandt notes that the average revenue claimed by Applicants for 2002-
2004 exceeds the figure calculated using an 85% capacity factor and the fixed
price for electricity under contract to ConEd.See id.at 7. Similarly, according to
Cortlandt, Applicants’ revenue estimates for 2005, the first year not covered by
the power purchaseagreementwith ConEd,greatly exceed the revenuesavailable
using an 85% capacity factor and Applicants’ estimate of sale price per megawatt
hour.See id.at 8. Cortlandt concludes that Applicants’ projections ‘‘grossly
26Specific figures will not be revealed here.
136
overstate’’the anticipatedrevenues.See id.As this subissue notonlyis backedby
calculations derived from the Applicants’ own data but also relates to Cortlandt
andCAN’schallengetotheApplicants’85%capacityfactorprojection,weaccept
it for litigation.
c. Estimated Costs
CAN asserts generally that Applicants’ operating and maintenance cost
projections are far too low. CAN alleges that Applicants have not accounted
for ‘‘the increased expenses to take on the project of restoring the reactor to
regulatory compliance and resolving the organizational and personnel problems
the Entergycompanieswould inherit.’’See CAN’s Contentionsat 36. Based only
on a comparison with operations and maintenance costs in the FitzPatrick/IP3
license transfer application, CAN concludes that the Entergy companies expect
to resolve the foregoing problems with a ‘‘hopelessly inadequate’’ additional
investment of less than $50 million.See id.CAN has advanced no documentary
support or expert opinion for its claim.
27
Cortlandt, however, contests Applicants’ estimated costs in four better
documentedsubissues: (1) whetherthe estimated projectcosts are reasonablein
lightofIP2’spreviousoperatinghistory;(2)whetherprojectedcostsarereasonable
and reliable in their own right; (3) whether the projected total operating expenses
jeopardize Applicants’ financial ability to operate IP2 safely;
28 and (4) whether
achieving an average plant capacity factor of 85% will cause Applicants to incur
additional costs for maintenance of plant safety (increased variable costs for
refueling, repairs, and maintenance) in excess of those projected.See Cortlandt’s
Issuesat7-10;Cortlandt’sRedactedIssuesat6,8-10. Theseinterrelatedsubissues
amount to a claim that Entergy’s costs will prove higher than anticipated.
Cortlandt relies on an analysis of data available from FERC Form 1 for
the years 1995 through 1999.See Sansoucy Letter. These figures include the
costs of operation, fuel, and maintenance reported by ConEd and the estimated
costs of capital to finance the purchase of the facility and nuclear fuel and fuel
oil inventories.
29 Cortlandt compares these historic costs to the income expected
undertheproposedpowerpurchaseagreementbetweenConEdandEntergyIndian
Point 2, and concludes that, if IP2 performs at its 1995-1999 levels, the total
cost of operation may exceed the revenues obtainable under the power purchase
27As noted,supra,CAN submitted an affidavit its expert prepared for another license transfer proceeding. We do
not find the general paragraphs of that affidavit applicable here.
28This subissue warrants no separate discussion, as it inheres in the first two subissues.
29Cortlandt cites the Affidavit of George Jee, page 2, Applicants’ Joint Petition filed with the New York Public
Service Commission, PSC Case No. 01-M-0075.See Cortlandt’s Issues at 9. Annual capital requirements were
estimated by George Sansoucy using a 10% cost of capital to finance the purchase over a 10-year period.See
Sansoucy Letter at 2, ¶3. Applicants have not stated whether they will finance the purchase of the Indian Point plant.
137
agreement by 20% or more.See Cortlandt’s Issues at 9. Cortlandt argues that
‘‘the financial capabilityof [EntergyIndianPoint 2] is dependenton performance
levels that the facility did not maintain during the years 1995 to 1999 or cost
savings which have not been identified in the Transfer Application.’’See id.
Cortlandt also relies on proprietary data submitted by Applicants and publicly
available data regarding annual operating expenses of ConEd for IP2 for 1997-
1999. Cortlandt argues that Applicants do not explain why their cost estimates
appear to be substantially lower than those experienced by ConEd, and why
certain estimates, such as cost of fuel, do not harmonize with historic costs.See
id.at8-9. Cortlandtallegesthattheprojectedcostfiguresarenotonlyunsupported
but also ‘‘plainly in contradiction with known historical operating data.’’See
Cortlandt’s Redacted Issues at 8. Cortlandt states that, according to the license
transfer application, the Entergy companies anticipate being able to fund fixed
operating expensesfrom retained earningsor by lines of credit.See id.at 9,citing
LicenseTransferApplication. Cortlandtcontendsthat, inthe eventofanextended
outage,EntergyIndianPoint2 will notbe able to payits projectedfixedoperating
expenses from retained earnings.
We accept this subissue for adjudication, as it, like some of Cortlandt’s
other issues, rests on expert-backed claims that the transfer application relies on
unexplained or noncredible data.
Cortlandt’s final cost-based concern is whether achieving an average plant
capacity factor of 85% will cause the Applicants to incur additional costs, in
excessofthoseprojected. WefindthatCortlandthasnotstatedthisproposedbasis
with the particularity required for consideration in a license transfer adjudication.
See Cortlandt’s Issues at 7-8. Therefore, we reject it.
30
d. Decreasing Retained Earnings
Cortlandtcontendsthat, underApplicants’projections,‘‘retainedearningswill
be reduced drastically and possibly wiped out entirely before IP2’s operating
license expires.’’See Cortlandt’s Redacted Issues at 2-3. Cortlandt foresees
that, after 2003, a shortfall in retained earnings will require Entergy Indian Point
2 to access monies available to it under intercompany agreements. Further,
Cortlandt worries that any deficiency in Entergy Indian Point 2’s showing of
financial strength would be exacerbated by any adverse operating events such
as an extended shutdown.See id.at 3. Here, Cortlandt’s queries are based on
information contained in the license transfer application itself and questions that
30Cortlandt has briefly raised the issue of whether the expiration of a collective bargaining agreement with IP2
employees in 2004 will result in costs beyond those accounted for in cost projections.SeeCortlandt’s Petition at 20.
Since Cortlandt relies only on speculation to frame this issue, we decline to consider it further.
138
follow logically after considering IP2’s operating history. We therefore accept
this subissue for adjudication.
Cortlandtalsoraisesanissueabouttheavailabilityoffundsundera$20,000,000
line of credit with Entergy Global Investments, Inc. Specifically, Cortlandt
questions whether the lines of credit available to the Entergy companies from
EntergyGlobalInvestmentsandEntergyInternationalLtd. LLCaresufficientand
reliable.See Cortlandt’sPetitionat17-19.But‘‘[g]iventhatourregulationsdonot
require supplemental funding as part of a showing of financial qualifications, we
do not see why the creditworthinessof the guarantor would be any more germane
than the amount of the supplemental funding guarantee itself ....’’Indian Point
3,CLI-01-14, 53 NRC at 540. We would consider this issue only if the Entergy
companies intended to rely on these credit arrangements to demonstrate their
financial qualifications to own and operate the Indian Point plant. We have held
that, ‘‘absent a demonstrated shortfall in the revenue predictions required by 10
C.F.R. §50.33(f),the adequacyof a corporateparent’ssupplementalcommitment
is not material to our license transfer decision.’’See Vermont Yankee,CLI-00-20,
52 NRC at 177.Accord Oyster Creek,CLI-00-6, 51 NRC at 205 (adequacy
of a credit line is not an issue if the credit line is not part of the financial
qualifications showing, but offered merely as an additional demonstration of
financial assurance). Therefore, we decline to consider the supplemental funding
issue given that the Applicants do not rely on supplemental funding as a basis for
financial qualification.
e. Revision of the Power Purchase Agreement
CortlandtnextinquireswhethertheEntergy-ConEdpowerpurchaseagreement
should be revised to ensure that Entergy Indian Point 2 has adequate financial
resourcestocovertotalcoststooperateincompliancewithNRCrequirements.See
Cortlandt’s Issues at 10. The sale of the Indian Point plant is, in Cortlandt’s view,
tied to a power purchase agreement with ConEd that provides for significantly
below market rates for electricity; moreover, the sale of electricity is the only
source of income to cover costs of operation.
We find this issue well outside the bounds of a license transfer proceedingand
reject it. Enforcement or revision of a power purchase contract between private
parties, even when the parties are within the regulatory authority of the NRC,
is not within the jurisdiction of the NRC. While a change in such an agreement
could in theory make the difference between proving an entity is financially
qualified to own and operate a nuclear power plant and being unable to do so,
the NRC has authority only to make a ‘‘yes or no’’ decision regarding financial
qualifications or, at most, to give a conditional ‘‘yes’’ answer. Any financial
conditions attached to a nuclear power plant license transfer would ordinarily
be concerned with an additional sum of money or credit deemed necessary to
139
demonstrate financial qualifications; NRC-imposed conditions normally would
not direct that a particular source, such as a power purchase agreement, provide
the additional funds. The remedy sought by Cortlandt lies outside the scope of
this proceeding.
f. Legality of the Proposed Operating Agreement
As a ‘‘catch-all’’ financial issue, Cortlandt asks ‘‘whether the proposed
operating agreement: A) is legal under New York State law, B) endangers
[Entergy Indian Point 2’s] financial ability to operate [the Indian Point plant]
safely, and C) requires supplemental information.’’See Cortlandt’s Redacted
Issues at 3-5.
Cortlandt submits that the proposed operating agreement is unenforceable
under New York State law because it ‘‘purports to indemnify’’ Entergy Indian
Point2 forclaimsthatmaybe lodgedagainstit.Seeid.at4. AnNRC adjudicatory
proceeding is simply not the appropriate forum for examining a contractual
agreement’s legality under state law. To be effective, the license transfer
application must be approved by the New York Public Service Commission,
among other agencies. NRC’s charge is to protect the health and safety of the
nuclear workforce and the general population by ensuring the safe use of nuclear
power. We depend on the State of New York to handle any issues — such as
contractualissues — which are not in conflict with our jurisdiction and which are
properly contested under that state’s laws.
We also reject Cortlandt’sassertion that the operatingagreementmay interfere
with Entergy Indian Point 2’s financial ability to operate the Indian Point plant
safely. Cortlandt’s assertion is too vague and speculative to serve as a basis for
adjudication.See Indian Point 3,CLI-00-22, 52 NRC at 312. Cortlandt believes
that, under the proposed operating agreement, the ability of Entergy Nuclear
Operationsto incurcostsis‘‘unfettered’’and, consequently,EntergyIndianPoint
2 is ‘‘likely’’ to be ‘‘embroil[ed] . . . in expensive disputes.’’See Cortlandt’s
Redacted Issues at 4. In another apparent criticism of the agreement, Cortlandt
characterizes the prepayment of expenses by Entergy Nuclear Operations and
the obligation of Entergy Indian Point 2 to reimburse the former entity as
‘‘nothingmorethanameansfor‘conveying’projectrevenuesto[EntergyNuclear
Operations], out of the coffers of [Entergy Indian Point 2] — a limited liability
corporation,andintothehandsofupstream andnonregulatedaffiliatesof[Entergy
Indian Point 2].’’See id.The distribution of project revenues and profits is not
within NRC’s purview, so long as the Indian Point plant has sufficient money to
operate safely and to meet decommissioning obligations. Although Cortlandt’s
assertions are couched in terms of jeopardy to the plant’s ability to operate
safely, we cannot admit an issue for adjudication based on mere conjecture.
140
‘‘Unsupportedhypotheticaltheoriesor projections. . . will notsupportinvocation
of the hearing process.’’Indian Point 3,CLI-00-22, 52 NRC at 315.
2. Technical Qualifications
The Entergy companies assert they are technically qualified to operate IP2
because existing staff and personnel will become employees of Entergy Nuclear
Operations. CAN asserts that the Entergy companies are not technically qualified
to operate IP2 and that the application does not acknowledge any of ConEd’s
special circumstances and problems, specifically, that ConEd’s ‘‘history of
systemicmismanagement...hascompromisedthematerialcondition, licensing
and design basis, and technical qualifications of the existing personnel.’’See
CAN’s Contentions at 11. Further, according to CAN, a ‘‘culture of non-
compliance [at IP2] threatens occupational and public health and safety.’’Id.at
17. CAN considersit‘‘imperativeto considerthelegacyproblemsthatundermine
the Entergy companies’ technical qualifications’’ in the context of this license
transfer proceeding.See CAN’s reply at 21. CAN urges that conditions be placed
on the sale to protect the health and safety of workers and the public; that the
FSAR be verified; and that an independent evaluation of IP2 be required before
transfer because of historical problemsin NRC Region I.See CAN’s Contentions
at 16-18, 24-29.
We decline to admit this issue, as CAN’s claims are not directly linked to the
license transfers at issue in this proceeding.See Indian Point 3,CLI-00-22, 52
NRC at 309. With continuity in the workforce, any problems alleged by CAN are
operational problems that, if shown to exist, will need to be remedied whether or
not the license is transferred. Indeed, CAN’s concerns are under review as the
subject of an enforcement petition filed by CAN under 10 C.F.R. §2.206, which
provides for any person to ‘‘file a request to institute a proceeding pursuant to
§2.202 to modify, suspend, or revoke a license, or for any other action as may be
proper.’’31
CAN has not squarely challenged the technical qualifications of the plant’s
intended employees.See Indian Point 3,CLI-00-22, 52 NRC at 309-10.
Rather, CAN has advanced the amorphous allegation that ConEd’s ‘‘systemic
mismanagement’’ of Indian Point 2 has, in some undefined manner, ‘‘compro-
mised the technicalqualificationsof existing personneland supportorganizations
there.’’See CAN’s Contentions at 15. CAN stresses that ‘‘Entergy would be
31See CAN’s ‘‘Formal Petition for Enforcement Action Pursuant to 10 CFR 2.206 to Revoke Con Edison’s
Operating License for Indian Point Unit 2 Due to Chronic, Systemic Mismanagement Resulting in Significant
Violations of NRC Safety Regulations,’’ Docket No. 50-247 (Dec. 4, 2000) (CAN’s 2.206 Petition’’). CAN’s
petition has been accepted for review by NRC’s Director of Nuclear Reactor Regulation.See License No. DPR-26,
Consolidated Edison Company of New York, Inc., Receipt of Petition for Director’s Decision Under 10 C.F.R.
2.206, 66 Fed. Reg. 15,301 (Mar. 16, 2001).
141
relying on these same technically unqualified staff.’’See CAN’s Reply at 19.
CAN’s claims are too broad and too vague to be suitable for adjudication.
CAN believes that verification of the FSAR and Design Basis Documentation
is necessary to meet the requirementsforlicense transfer.See CAN’s Contentions
at 24-27. Applicants maintain that ConEd updated the FSAR in 1982 and
subsequently updated it pursuant to our regulations.See License Transfer
Application, Enclosure 1, at 15, ¶B. This is another operational issue outside
the scope of a license transfer proceeding.See Indian Point 3,CLI-00-22, 52
NRC at 310-11. As with CAN’s other operational grievances, the NRC Staff is
considering CAN’s FSAR concern in conjunction with the petition CAN filed in
December 2000.See CAN’s 2.206 Petition at 3;see also supra note 5.
Regarding CAN’s request for an independent evaluation of IP2 before any
license transfer, we declined to admit a similar issue espoused by CAN in Indian
Point 3 and in Vermont Yankee. See Indian Point 3,CLI-00-22, 52 NRC at 318,
citing Vermont Yankee,CLI-00-20, 52 NRC at 171. Region I’s performance in
overseeing the IP2 plant is far outside the scope of a license transfer proceeding.
See Vermont Yankee,CLI-00-20, 52 NRC at 171 and references cited therein.
3. Decommissioning Funding
Cortlandt questions whether the license transfer application contains the
information required by 10 C.F.R. §50.33(k)(1) pertaining to the adequacy of
its funding for decommissioning the Indian Point plant.See Cortlandt’s Petition
at 21-23, Cortlandt’s Reply at 2-4. A reactor licensee must provide assurance
of adequate resources to fund the decommissioning of a nuclear facility by one
of the methods described in 10 C.F.R. §50.75(e).See 10 C.F.R. §50.75(a).
The Commission has held that a showing of compliance with 10 C.F.R. §50.75
demonstrates sufficient assurance of decommissioning funding.North Atlantic
Energy Service Corp.(Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 217
(1999). Applicants initially proposed to meet this requirement by prepaying a
deposit in an amount sufficient to cover the decommissioning costs at the time
termination of operation is expected.See 10 C.F.R. §50.75(e)(1)(i); License
Transfer Application, Enclosure 1, at 13, ¶K. In determining the amount of
prepayment, a licensee may take credit for projected earnings on the trust funds
using up to a 2% annual rate of return.See 10 C.F.R. §50.75(e)(1)(i).
ConEd initially proposed to transfer a total of $430 million to Entergy Indian
Point 2 to fund the decommissioning trust. Cortlandt notes that the derivation of
the $430 million figure is not explained in the application, but surmises that it is
the present value, discountedat the rate of 2% real rate of return, of the calculated
minimum amount of $558 million required at the expiration of the licenses in
2013.See Cortlandt’s Petition at 21.
142
Cortlandtstatesthat,basedontheresults ofasite-specificcoststudycontracted
by ConEd, $558 million will be insufficient, as the actual sum required for
decommissioning will be $578 million.
32 In addition, ConEd apparently has
committed to restore the Indian Point plant site to ‘‘Greenfield’’ conditions,
resulting in an additional cost of $47 million.See id.at 22. Even though the
proposed decommissioning fund will meet the NRC minimum amount, Cortlandt
states that there will be a shortfall of $20 million for standard decommissioning
and $67 million for restoring the property to ‘‘Greenfield’’ conditions.See id.
Cortlandt suggests three additional factors that could add to the decommissioning
shortfall: the total decommissioning cost is based on the assumption that the
decommissioning of IP1, IP2, and IP3 will all be done by one owner; due to the
uncertainty in financial markets, the decommissioning fund may not appreciate
at the estimated 2% real growth rate; and a significant source of funding for
decommissioningwill no longer be available after the transfer of the licenses.See
id.at 22-23.
Cortlandt’s decommissioning issues, as set out in its petition, amount to
an impermissible challenge to a generic decision made by the Commission
in its decommissioning rulemaking.See Seabrook,CLI-99-6, 49 NRC at
217 n.8.
33 In its reply, however, Cortlandt formally requested a waiver of 10
C.F.R. §50.75(e)(1)(i) to the extent that compliance with the minimum funding
requirementdescribedintheregulationisdeemedtoprovideadequateassuranceof
the ability to decommission.See Cortlandt’sReply at 3. To show unique‘‘special
circumstances’’ supporting its waiver request, Cortlandt cites the fact that the
present licensee has performed a site-specific study that purportedly documents
the inadequacy of the minimum funding level established by regulatory criteria.
See id.at 4. This study, according to Cortlandt, warrants the conclusion that
application of the rule would not serve the purposesfor which it was adopted.See
10 C.F.R. §2.1329.
We decline to grant the rule waiver or admit Cortlandt’s decommissioning
issue. We conclude that our generic funding rule serves both purposes for which
it was adopted, even in the alleged ‘‘special circumstances’’ of this case. The
two purposes of our regulations regarding decommissioning funding are (1) to
‘‘minimize the administrative effort of licensees and the Commission’’ and (2)
‘‘to provid[e] reasonable assurance that funds will be available to carry out
decommissioning in a manner which protects public health and safety.’’See
Final Rule: ‘‘General Requirements for Decommissioning Nuclear Facilities,’’
32See Cortlandt’s Petition at 21-22,citing Affidavit of Edward Rasmussen, annexed to Draft Supplemental
Environmental Impact Statement prepared by ConEd, dated Jan. 19, 2001, with respect to the transfer of Indian
Point Units 1 and 2 to Entergy, pursuant to section 70 of the New York State Public Service Law.
33We agree with Applicants that ‘‘Cortlandt’s petition implicitly concedes that, absent a waiver of the NRC’s
regulatory position, it is barred from challenging the adequacyof a decommissioning funding approach that complies
with the requirements of 10 C.F.R. §50.75.’’SeeApplicants’ Answer to Cortlandt at 8.
143
53 Fed. Reg. 24,018, 24,030 (June 27, 1988). Prior to adoption of this rule,
many licensing activities concerning decommissioning had to be determined on
a case-by-case basis, resulting in inconsistency and ‘‘inefficient and unnecessary
administrative effort.’’See id.at 24,019. The generic formulas set out in
10 C.F.R. §50.75(c) fulfill the dual purposes of the rule. Using site-specific
estimates, as Cortlandtdemands,woulddefeatthe specific purposeof minimizing
inefficient administrative effort. Indeed, in our decommissioning rulemaking we
explicitlyrejectedthe use ofsite-specific estimates,
34 althoughwe recognizedthat
site-specific cost estimates may have to be prepared for rate regulators.See Final
Rule: ‘‘Financial Assurance Requirements for Decommissioning Nuclear Power
Reactors,’’ 63 Fed. Reg. 50,465, 50,468-69 (Sept. 22, 1998); 53 Fed. Reg. at
24,030.
Our adherence to the regulatory formulas does not mean that we do not share
Cortlandt’s concerns about decommissioning funds. Use of the generic formula,
however, is only the first step in ensuring adequate funds for decommissioning,
and our rules take into account the possibility of changes over time. Five years
prior to the expected end of operation, the licensee is required to submit a cost
estimate for decommissioning based on an up-to-date assessment of the actions
necessaryfor decommissioningandplansfor adjustinglevelsof fundsassured for
decommissioning. This estimate would be based on a ‘‘then current assessment
of major factors that could affect decommissioning costs.’’See 53 Fed. Reg.
at 24,030. ‘‘These factors could include site specific factors as well as then
current information on . . . disposal of waste, residual radioactivity criteria, etc.,
and would present a realistic appraisal of the decommissioning of the specific
reactor, taking into account actual factors and details specific to the reactor and
the time period.’’Id.We remain confident that our generic formula, along with
our end-of-license requirements, will result in reasonable assurance of adequate
decommissioning funding:
[C]ombination of these steps, first establishing a general level of adequate financial
responsibility for decommissioning early in life, followed by periodic adjustment, and then
evaluation of specific provisions close tothe time ofdecommissioning, will provide reasonable
assurance that the Commission’s objective is met, namely that at the time of permanent end
of operations sufficient funds are available to decommission the facility in a manner which
protectspublichealthandsafety.MoredetailedconsiderationbyNRCearlyinlife...isnot
considerednecessary....
Id.at 24,030-31.
34Although we did not actually reach the question addressed here, we stated in an earlier license transfer
proceeding that ‘‘no one would be free to argue in a license transfer case that site-specific conditions at a particular
nuclear power reactor render unusable the generic projected costs calculated under our rule’s cost formula.’’See
Seabrook,CLI-99-6, 49 NRC at 217 n.8.
144
Regardingtheadditionalexpensetodecommissionto‘‘Greenfield’’conditions,
wecannotrequiretheApplicantstoprovidefundsaboveandbeyondthoserequired
for standard decommissioning as defined by NRC rules.See Indian Point 3,CLI-
00-22, 52 NRC at 303. Decommissioning funding under NRC regulations does
not include costs relating to nonradioactivestructures and materials beyond those
necessary to terminate the NRC license. ‘‘Costs of disposal of nonradioactive
hazardous wastes not necessary for NRC license termination are not included in
the prescribed amounts.’’ 53 Fed. Reg. at 24,031.
The other factors (in addition to the alleged shortfall between the generic
formula and the contractor’s site-specific estimate and restoring to ‘‘Greenfield’’
conditions) mentioned by Cortlandt do not change our analysis.
35 See Cortlandt’s
Petition at 22-24. Therefore, we decline to admit Cortlandt’s issue.
4. Environmental Remediation
Cortlandt questions whether Applicants have the resources to adequately fund
the environmentalremediation that it believes will be required at the Indian Point
plant site. Cortlandt cites a report prepared by a contractor retained by ConEd
to perform an environmental site asessment for IP2.See Cortlandt’s Petition at
25. Cortlandt states that the report identified ‘‘environmental problems’’ and
‘‘potential actions and remediation that may be required.’’See id.Cortlandt
also refers to a pending renewal of the State Pollutant Discharge Elimination
System water discharge permit for IP2 and insists that the cost of compliance
with any agreement among the New York State Department of Environmental
Conservation,theU.S.EnvironmentalProtectionAgency,variouselectricutilities,
and Intervenors needs to be explained before a final determination can be made
regarding the adequacy of Entergy Indian Point 2’s financial qualifications.See
id.at 26.
We declineto admitthese issues. TheIntervenorshavenotallegedanyspecific
remediationthat islikely to be undertakenin thenext 5yearsandthe referencesto
‘‘environmental problems’’ are too vague to provide a basis for a litigable issue.
Substantive questions relating to plantoperations, such as whether environmental
remediation may be necessary in the future, are not within the scope of license
transfer proceedings.See Indian Point 3,CLI-00-22, 52 NRC at 311;Vermont
Yankee,CLI-00-20, 52 NRC at 169;Oyster Creek,CLI-00-6, 51 NRC at 213.
Issues addressing the sufficiency of the Applicants’ 5-year cost estimates are
within the scope of transfer proceedings. However, because Cortlandt failed
to identify a specific environmental remediation activity that is likely to occur
within the next 5 years, they have failed to raise a genuine issue about whether
35Cortlandt mentions uncertainty in financial markets, unavailability of a significant source of funding, and
Entergy Indian Point 2’s lack of assets other than the facilities to be decommissioned.
145
the Applicants’ 5-year revenue projections are sufficient to cover the cost of any
such remediation expense.
CAN has also raised an environmental remediation issue. CAN challenged
the adequacy of the provision for remediation of radiological materials after
the proposed license transfer because the purchase and sale agreement between
ConEd and Entergy Indian Point 2 contains a clause whereby ConEd would
retain any liability arising from a recent steam generator tube rupture event.See
CAN’s Reply at 34-37. CAN objects to this clause because CAN argues that
the NRC will lose jurisdiction over ConEd if the transfer is permitted, while the
clause addressing liability in the purchase and sale agreement leaves only ConEd
financially responsible for remediation expenses.See id.Applicants assert that
‘‘thereis nobasis foranyclaim thatthereis anyradioactivecontaminationoffsite,
let alone any that requires remediation.’’ Applicants’ Answer to CAN at 19.
CAN too has failed to raise a litigable environmental remediation issue. Like
Cortlandt, CAN hasnotdescribedanyspecific remediationthat willbe necessary.
Further, the NRC retains enforcement authority to ensure adequate protection
of health and safety and the environment irrespective of any contract provision
between the parties to a transfer. Vague, unsupportedissues are inadmissible.See
10 C.F.R. §2.1306.
5. Radiological Emergency Response Plans
Cortlandtrequeststhatweexaminewhethertheapplicationisdeficientbecause
it fails to provide a radiological emergency response plan, required by 10 C.F.R.
§50.33(g), to account for the increased population and development of the
immediate vicinity of the Indian Point plant.See Cortlandt’s Petition at 26-27.
Cortlandt states that, because of the significant expansion of the communities in
northernWestchester Countyin the last 25 years, the evacuationof the population
would be more difficult than in the past. Cortlandt alleges that the application
is deficient because it does not consider the probability that a new evacuation
plan will have to be designed and may require significant additional expenses,
‘‘possibly including the construction of new and improved highways to facilitate
the rapid transportation of residents away from a nuclear accident.’’See id.at
26-27 (emphasis added). We decline to accept this issue for adjudication.
In Indian Point 3,we rejected two similar issues. Specifically, in that
case Cortlandt asked the Commission to consider the impact of the proposed
transfers on the need for changes to the Emergency Evacuation Plans and the
appropriateness of the proposed license transfer in view of the plant’s proximity
to metropolitan areas.See Indian Point 3,CLI-00-22, 52 NRC at 317. We
noted in the earlier case that the new licensees would have to meet all of our
regulatory requirements concerning emergency planning and preparedness.See
id.We also concluded that IP3’s proximity to metropolitan areas and to locations
146
for sporting and cultural events was not relevant to the question whether to
approve the license transfer.See id.The same reasoning applies in the instant
case. As with some of Cortlandt’s other issues, its emergency response claims
relate to the everyday running of the plant, not to license transfer. Moreover,
Cortlandt provides nothing more than speculation that Entergy’s compliance
with ouremergencyresponseplan regulationswill necessitate large unanticipated
expenditures,renderingEntergy’s5-year cost-and-revenueprojectionsunreliable.
6. Spent Nuclear Fuel Storage Capacity
Cortlandt states that IP2’s spent nuclear fuel storage capacity will be fully
utilized in 2004 and argues that the application is deficient because it fails to
demonstrate the capacity to handle onsite nuclear waste after that time.See
Cortlandt’s Petition at 12, 24; Cortlandt’s Issues at 11-14. Safe and adequate
storage or disposal of spent nuclear fuel is an ongoing operational issue that
must be addressed by whoever owns the plant; as such, it ordinarily falls outside
the scope of a license transfer proceeding.Oyster Creek,CLI-00-6, 51 NRC at
213-14.
Inthis case, however,Cortlandtbasesits challengeprimarilyontheanticipated
cost of additional storage capacity rather than on the safety, environmental, or
operational aspects of spent fuel storage. As support, Cortlandt points to a study
performed a year ago for ConEd.See Cortlandt’s Issues at 12. According to
Cortlandt, the study estimates the cost of addressingthe problemof nuclear waste
at the Indian Point plant after 2004 as between $147 million and $362 million.
See Cortlandt’s Petition at 24-25. Cortlandt may have misinterpreted the figures
it quoted— Applicantsclaim the figuresapply to the total costs incurredbetween
unit shutdown and complete restoration of the site, not just the cost of solving
the 2004 problem.See Applicants Answer to Cortlandt at 28 n.31. Cortlandt
offers no other factual support for the implied proposition that Applicants will be
unable to afford managing spent nuclear fuel in accordance with our regulations.
But Applicants have provided us nothing to show that their projected cost figures
have accounted for the undefined expense of solving their admitted short-term
problem of interim spent fuel storage.
We are reluctant to permit Cortlandt to transform an operational issue into
one of financial qualifications. Cortlandt’s issue raises no immediate health or
safety concerns, as the plant will simply shut down if the Entergy companies
become unable to accommodate spent fuel generated by Indian Point 2. In the
past the Commission has refused to consider spent fuel storage issues in the
context of license transfer proceedings.See Vermont Yankee,CLI-00-20, 52
NRC at 171;Oyster Creek,CLI-00-6, 51 NRC at 207-08. In those earlier cases,
however, spent fuel issues were proffered in a purely operational context or the
anticipated storage problems were too far down the time line to assume a role
147
in the license transfer decision. Unlike those cases, the instant case presents a
situationwhere an expense— not quantifiedin the application— will be incurred
by the transferee within the carefully scrutinized 5-year period after the requested
license transfer. Therefore, we admit this issue as a subissue of the financial
qualifications question.
7. Compromise of NRC’s Regulatory Authority
CAN asserts that approval of the license transfer would compromise NRC’s
regulatory authority over ConEd’s continued responsibility for radiological
materials and undermine NRC’s ability to protect public health and safety.See
CAN’s Contentions at 39-43. CAN is concerned because, under the Applicants’
Asset Purchase & Sale Agreement, ConEd retains liability for radiological
materials deposited offsite under its period of ownership. If NRC approves the
license transfer, contends CAN, the agency’s authority over ConEd with respect
toanysuchradiologicalmaterialswouldbecompromisedbecausetheNRCwould
no longer have direct regulatory authority over ConEd after it is released from
the Indian Point plant license.See id.at 39. CAN believes there is evidence of
the need for offsite remediation because the Entergy companies have included
contractual language in the purchase and sale agreement that shields them from
liability that may be associated with a steam generator tube rupture event that
occurred during ConEd’s stewardship of the plant. CAN is worried that ConEd
may not be able to fulfill its responsibilitiesif it is released from its license before
these matters are resolved.See id.at 42.
In Indian Point 3,CAN similarly asserted that approval of the license transfer
would deprivethe Commission of any post-transferregulatoryauthorityto ensure
that the previous owner (Power Authority of the State of New York) satisfies the
NRC’s requirements for decommissioning and remediation of the site because
the Commission’s regulations do not provide for retention of authority and
enforcement power over a former licensee.See Indian Point 3,CLI-01-14,
53 NRC at 552-53. We examined in detail the issue of our jurisdiction over
unlicensed persons and concluded that our authority extends to any person ‘‘who
engages in conduct affecting activities within the Commission’s subject-matter
jurisdiction— includingthose who. . .have been engagedin licensed activities.’’
See id.at 554-55 and references cited therein. Similarly, we conclude here that
CAN’s worries about the Commission’s continuing authority over ConEd are
unfounded. Moreover, the circumstances raised by CAN to justify its issue are
purely speculative at this point. For the foregoingreasons, we decline to consider
this issue further.
148
8. The Public Interest
Cortlandt contends loosely that the proposed transfer is not in the public
interest. Its entire basis for this issue is as follows:
The proposed transfer will enable an investor owned utility, subject to regulation by the PSC,
to transfer a generating asset (IP2) together with a defunct liability (IP1) to a wholesale electric
generating company. Even more significant, the assets transferred have serious potential
liabilities, both in terms of potential radiological exposure, and undisclosed environmental
hazards, and the proposed transferee does not appear to have adequate financial resources to
cover either ongoing expenses or decommissioning.Such a transfer is plainly not in the public
interest.
Cortlandt’s Petition at 28.
This issue is too broad and vague to be suitable for adjudication. Moreover,
NRC’s mission is solely to protect the public health and safety. It is not to make
general judgments as to what is or is not otherwise in the public interest — other
agencies, such as the Federal Energy Regulatory Commission and state public
service commissions, are charged with that responsibility. Because Cortlandt’s
‘‘public interest’’ issue seems to go beyond the NRC’s statutory duties, and also
lacks sufficient specificity, we decline to admit it.
V. OTHER PROCEDURAL MATTERS
A. Designation of Issues
To avoid confusion regarding the issues we have found to be admissible, we
directthepartiestoorganizetheirpresentationsatthehearingaroundthefollowing
issues. All relate to the Applicants’ 5-year cost-and-revenue projections:
1. Revenue
a. whether Entergy’s 85% capacity-factor assumption is reasonable in its
own right and reasonably rests on the Entergy companies’ operating
experience at other plants;
b. whether, even assuming an 85% capacity factor, the revenue claimed by
Entergy exceeds the revenues likely to be attained, given Entergy’s fixed
price agreement with ConEd and Entergy’s estimate of the sale price per
megawatt hour; and
c. whether Entergy’s projected decrease in retained earnings will leave
Entergy short of necessary operational funds
149
2. Costs
a. whether, given fixed operating costs, Indian Point 2’s historical operating
expenses, and the application’s asserted lack of information on cost
savings, Entergy’s cost estimates are too low; and
b. whether Entergy’s cost estimates include appropriate amounts to resolve
a shortage of spent fuel storage capacity expected to begin in 2004.
The parties should be prepared to offer prefiled testimony and exhibits
containing specific facts and/or expert opinion in support of their positions on
these issues. Parties shall keep their pleadingsas shortand as focused as possible.
The Commission will not consider new issues or new arguments related to the
admitted issues at the hearing unless they satisfy our rules for late-filed issues
(see 10 C.F.R. §2.1308(b)),and will not consider claims rejected in this opinion.
Redundant, duplicative, unreliable, or irrelevant submissions are not acceptable
and will be stricken from the record.See 10 C.F.R. §2.1320(a)(9).We also direct
the Intervenors to state explicitly the remedial measures (if any) they believe
the Commission should take in addition to those specified in their intervention
petitions.
B. Designation of Presiding Officer
The Commission directs the Chief Administrative Judge of the Atomic Safety
and Licensing Board promptly to appoint a Presiding Officer for this proceeding.
Until the appointment of a Presiding Officer, the parties should file any written
submissions with the Office of the Secretary.
C. Notices of Appearance
If they have not already done so, each attorney or representative for each
party shall, not later than 11:59 p.m. on September 4, 2001, file a notice of
appearance complying with the requirements of 10 C.F.R. §2.713(b). Each
notice of appearance shall specify the attorney’s or representative’s business
address, telephone number, facsimile number, and e-mail address. Any attorney
orrepresentativewhohasalreadyenteredanappearancebutwhohasnotprovided
one or more of these pieces of information should do so not later than the date
and time specified above.
D. Filing Schedule
If the parties agree to a non-oral hearing, they must file their joint motion for
a ‘‘hearing consisting of written comments’’ no later than 11:59 p.m. (Eastern
Time) on September 6, 2001 (i.e., 15 days from the date of this Order).See 10
150
C.F.R. §2.1308(d)(2). We also direct the parties to confer promptly on whether
this proceeding might be settled amicably without conducting a hearing.
All initial written statements of position and written direct testimony(with any
supporting affidavits) must be filed no later than 11:59 p.m. on September 21,
2001(30daysaftertheissuancedateofthisOrder).See 10C.F.R.§§2.1309(a)(4),
2.1310(c), 2.1321(a), 2.1322(a)(1). All written responses to direct testimony, all
rebuttal testimony (with any supporting affidavits), and all proposed questions
directed to written direct testimony must be filed no later than 11:59 p.m. on
October 11, 2001 (20 days after the submission of written statements of position
and written testimony).See 10 C.F.R. §§2.1309(a)(4), 2.1310(c), 2.1321(b),
2.1322(a)(2)-(3). All proposed questions directed to written rebuttal testimony
must be submitted to the Presiding Officer no later than 11:59 p.m. on October
22, 2001 (10 days after the submission of rebuttal testimony).
36
Ifthepartiesdonotunanimouslyseekahearingconsistingofwrittencomments,
the Presiding Officer will hold an oral hearing beginning at 9:30 a.m. on October
29, 2001 (5 business days after submission of questions), at the Commission’s
headquarters in Rockville, MD. The subject of the hearing will be the issues
designated above. Portions of the hearing may have to be closed to the public
when issues involving proprietary information are being addressed.
Any party submitting prefiled direct testimony should make the sponsor of
that testimony available for questioning at the hearing. The Presiding Officer
will issue an order establishing the amount of time available for the initial and
reply presentations of the parties. Given the expedited nature of license transfer
proceedings,the Commission anticipates that the hearing will take no longer than
1 day. The hearing will not include opportunitiesfor cross-examination,although
the Presiding Officer may question any witness proffered by any party.See 10
C.F.R. §§2.1309, 2.1310(a), 2.1322(b);Indian Point 3,CLI-01-14, 53 NRC at
560-61.
Finally, all written post-hearing statements of position must be filed no later
than 11:59 p.m. on November 19, 2001 (20 days after the oral hearing, pursuant
to 10 C.F.R. §2.1322(c), plus 1 additional day because the due date falls on a
Sunday).37
36See 10 C.F.R. §§2.1309(a)(4), 2.1310(c), 2.1321(b), 2.1322(a)(4). The 7-day filing period specified in the last
two of these regulations is, pursuant to 10 C.F.R. §2.1314(b) and 2.1314(c), extended by 3 days, because the period
includes a Saturday and a Sunday; the period is extended 1 additional day because the prescribed time period ends
on a Sunday.37See 10 C.F.R. §2.1314(a).
151
E. Participants in the Hearing; Service List
The parties to this proceeding will be CAN, Cortlandt, ConEd, Entergy Indian
Point 2, and Entergy Nuclear Operations. The recipients on the service list will
be:
The General Counsel The Secretary of the Commission
U.S. Nuclear Regulatory Commission ATTN: Rulemakings and Adjudications
Washington, DC 20555-0001 Staff
301-415-1537 U.S. Nuclear Regulatory Commission
E-mail: [e-mail] Washington, DC 20555-0001
301-415-1101(FAX)
E-mail: [e-mail]
Timothy L. Judson Paul V. Nolan, Esq.
Central New York-Citizens 5515 North 17th Street
Awareness Network Arlington, VA 22205
140 Bassett St. E-mail: [e-mail]
Syracuse, NY 13210
E-mail: [e-mail]
Brent L. Brandenburg, Esq. Douglas E. Levanway, Esq.
Consolidated Edison Co. of New York Wise, Carter, Child and Caraway
4 Irving Place, Room 1830 P.O. Box 651
New York, NY 10003 Jackson, MS 39205
E-mail: [e-mail] E-mail: [e-mail]
David A. Repka, Esq. Jay E. Silberg, Esq.
Mark J. Wetterhahn, Esq. Matias F. Travieso-Diaz, Esq.
Winston & Strawn Shaw Pittman
1400 L Street, NW 2300 N Street, NW
Washington, DC 20005-3502 Washington, DC 20037-1128
E-mail: [e-mail]; E-mail: [e-mail];
[e-mail] [e-mail]
We direct the parties immediately to supplementor correctthe above information
to the extent that it is incomplete or inaccurate, and immediately to notify all
recipients of any such changes.
Pursuant to 10 C.F.R. §2.1316(b)-(c), the NRC Staff has indicated that it will
not be a party to this proceeding. Nevertheless, the Staff is expected both to offer
into evidence its Safety Evaluation Report and to proffer one or more sponsoring
witnesses for that document.See 10 C.F.R. §2.1316(b).
152
F. Service Requirements
Thepartieshavea numberofoptionsunder10C.F.R.§2.1313(c)forserviceof
their filings, the preferredmethodof filing in this proceedingis electronic(i.e., by
e-mail). Electronic copies should be in WordPerfect format (in a version at least
asrecentas6.0). Servicewillbeconsideredtimelyifsent notlaterthan11:59p.m.
of the due date under our Subpart M rules. We also require the parties to submit
a single signed hard copy of any filings to the Rulemakings and Adjudications
Branch, Office of the Secretary, U.S. Nuclear Regulatory Commission, 11555
RockvillePike, RoomO-16-H-15,Rockville, MD 20852. As notedabove,the fax
number for this office is [phone]and the e-mail address is [e-mail].
VI. CONCLUSION
For the reasons set forth above:
1. CAN’s and Cortlandt’s petitions to intervene and requests for hearing are
granted.
2. CAN’s and Cortlandt’s requests to cosponsor each issue admitted for
hearing are provisionally granted,subject to a requirement that, should the
primarysponsorofanissuewithdrawfromthisproceeding,theremainingsponsor
demonstrate to the Presiding Officer the ability to litigate the issue.
3. CAN’s motion for a SubpartG hearing or an expandedSubpartM hearing
is denied.
4. Cortlandt’s request to dismiss the application is denied.
5. Cortlandt’s request for a waiver regarding consideration of site-specific
decommissioning funding estimates is denied.
6. The parties are required to inform the Commission of any court or
administrative orders, settlements, or business decisions that may in any way
relate to, or render moot, part or all of the instant proceeding.
IT IS SO ORDERED.
For the Commission
38
By ANDREW L. BATES
for ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 22d day of August 2001.
38Commissioner Dicus was not present for the affirmation of this Order. If she had been present, she would have
approved it.
153
Cite as 54 NRC 155 (2001)LBP-01-22
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
G. Paul Bollwerk, III,Chairman
Dr. Jerry R. Kline
Dr. Peter S. Lam
In the Matter of Docket No. 72-22-ISFSI
(ASLBP No. 97-732-02-ISFSI)
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) August 1, 2001
In this proceeding concerning the application of Private Fuel Storage, L.L.C.
(PFS), under 10 C.F.R. Part 72 to construct and operate an independent
spent fuel storage installation (ISFSI), acting pursuant to 10 C.F.R. §2.749,
the Licensing Board grants a PFS request for summary disposition in its
favor regarding contention Utah V, Inadequate Consideration of Transportation-
Related Radiological Environmental Impacts, finding that in light of the revised
transportation impacts analysis put forth by the NRC Staff in its June 2000 draft
environmental impact statement (DEIS), contention Utah V is now moot.
RULES OF PRACTICE: SUMMARY DISPOSITION (BURDEN OF
PERSUASION; BURDEN OF PROOF)
Under 10 C.F.R. §2.749(a), (d), summary disposition may be entered with
respect to any matter (or all of the matters) in a proceeding if the motion, along
with anyappropriatesupportingmaterial, showsthatthere is‘‘nogenuineissue as
to any material fact and that the moving party is entitled to a decision as a matter
of law.’’ The movantbears the initial burdenof makingthe requisite showingthat
155
there is no genuine issue as to any material fact, which it attempts to do by means
of a required statement of material facts not at issue and any supporting materials
(including affidavits, discovery responses, and documents) that accompany its
dispositive motion. An opposing party must counter each adequately supported
material fact with its own statement of material facts in dispute and supporting
materials, or the movant’s facts will be deemed admitted.See Advanced Medical
Systems, Inc.(One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98,
102-03 (1993).
RULES OF PRACTICE: CONTENTIONS (AMENDMENT;
CHANGED CIRCUMSTANCES)
When a revised transportation analysis provided in a DEIS is a significant
change from the applicant’s environmental report transportation analysis,
intervenor concerns about flaws and inadequacies in the DEIS analysis should be
channeled into a new contention (or perhaps an amended version of the existing
contention).
MEMORANDUM AND ORDER
(Granting Summary Disposition Motion Regarding
Contention Utah V)
Pending before the Licensing Board in this proceeding concerning the June
1997 application of Private Fuel Storage, L.L.C. (PFS), for authorization to
construct and operate a 10 C.F.R. Part 72 independent spent fuel storage
installation (ISFSI) in Skull Valley, Utah, is a PFS motion for summary
disposition regarding Intervenor State of Utah’s (State) contention Utah V,
Inadequate Consideration of Transportation-Related Radiological Environmental
Impacts. As admitted, contention Utah V challenges the sufficiency of the
PFS environmental report relative to its analysis of the environmental effects of
transporting spent nuclear fuel to and from the proposed ISFSI. PFS asks that
summary disposition be granted in its favor on contention Utah V because that
issue is now moot, a request that is supported by the NRC Staff and opposed by
the State.
For the reasons set forth below, we grant the PFS dispositive motion on this
issue.
156
I. BACKGROUND
In our April 1998 ruling on standing and litigable issues, the Licensing Board
admitted a portion of contention Utah V concerning the transportation-related
environmental impacts of the proposed ISFSI.See LBP-98-7, 47 NRC 142, 199-
201,reconsideration granted in part and denied in part,LBP-98-10, 47 NRC
288,aff’d on other grounds,CLI-98-13, 48 NRC 26 (1998). In admitting the
contention,the Licensing Board allowed only that portionof the State’s proffered
bases for the contention asserting that the weight for a loaded shipping cask
to be utilized for transportation of spent nuclear fuel to the facility is outside
the parameters of 10 C.F.R. §51.52 (Summary Table S-4) and that a detailed
description of transportation impacts must therefore be provided. LBP-98-7, 47
NRC at 200. As admitted by the Board, the contention reads:
The Environmental Report (‘‘ER’’) fails to give adequate consideration to the transportation-
related environmental impacts of the proposed ISFSI in that PFS does not satisfy the threshold
condition for weight specified in 10 C.F.R. §51.52(a) for use of Summary Table S-4, so that
the PFS must provide ‘‘a full description and detailed analysis of the environmental effects
of transportation of fuel and wastes to and from the reactor’’ in accordance with 10 C.F.R.
§51.52(b).
Id.at 256. PFS subsequently sought reconsideration or clarification relative to
contention Utah V, arguing that the Board’s decision to admit the contention
relative to the ‘‘weight’’ component of Table S-4, 10 C.F.R. §51.52(c), should
be circumscribedto include onlyconsiderationof regionalimpacts; however,that
reconsideration request was denied.
1 See LBP-98-10, 47 NRC at 295-96.
In June 2000, the Staff issued its draft environmental impact statement
(DEIS) for the PFS facility.See Draft Environmental Impact Statement for the
Construction and Operation of an Independent Spent Fuel Storage Installation on
the Reservation of the Skull Valley Band of Goshute Indians and the Related
Transportation Facility in Tooele County, Utah, NUREG-1714 (June 2000)
[hereinafterDEIS].Inaddressingthetransportation-relatedenvironmentalimpacts
of the proposed ISFSI in the DEIS, rather than relying on Table S-4, the Staff
utilized PFS-specific computer analyses, specifically the RADTRAN 4 computer
1 Thereafter, in October 1999, the State submitted what it labeled a late-filed, amended contention Utah V.
Based on a discussion of spent fuel shipment convergence impacts in the Las Vegas, Nevada area relative to the
proposed Yucca Mountain high-level waste repository in the August 1999 addendum to NUREG-1437, the generic
environmental impact statement fornuclearpowerplant licenserenewal,the amended contention soughtto challenge
the adequacy of the PFS ER and Table S-4 relative to thoseitems’ consideration of the impacts of the convergence
of shipments of spent fuel in the Salt Lake City, Utah area and at the PFS facility.See [State] Request for Admission
of Late-Filed Amended Utah Contention V (Oct. 4, 1999). After considering the submissions by the parties, in a
June 2000 ruling the Board denied the State’s request for admission as failing to meet the late-filing criteria of 10
C.F.R. §2.714(a)(1) and as an untimely request for reconsideration of its April 1998 contention admission decision.
See LBP-00-14, 51 NRC 301, 308-11 (2000).
157
model.See DEIS at 5-36 to -39;see also id.App. C (Rail Routes to the Proposed
PFS Site);id.App. D (Transportation Risks Analysis). Thereafter, the State
requested the admission of five late-filed contentions challenging various aspects
of the DEIS transportation impacts analysis, but the Board denied the requests as
failing to meet the late-filing criteria of section 2.714(a)(1).See LBP-00-28, 52
NRC 226 (2000) (late-filed contentions Utah LL through Utah OO),petition for
interlocutory review denied,CLI-01-1, 53 NRC 1 (2001); LBP-01-13, 53 NRC
319 (2001) (late-filed contention Utah PP).
OnApril16, 2001,PFS filedthe motionforsummarydispositionofcontention
Utah V that presently is before us for resolution, along with a supporting
statement of material facts not in dispute.See [PFS] Motion for Summary
DispositionofUtahContentionV— InadequateConsiderationofTransportation-
Related Radiological Environmental Impacts (Apr. 16, 2001) [hereinafter PFS
Dispositive Motion];see also id.Statement of Material Facts on Which No
Genuine Dispute Exists [hereinafter PFS Undisputed Facts]. On May 15, 2001,
the State and the Staff filed responses to the PFS dispositive motion.See [State]
Response to [PFS] Motion for Summary Disposition of Utah Contention V (May
15, 2001) [hereinafter State Response]; NRC Staff Response to [PFS] Motion
for Summary Disposition of Utah Contention V — Inadequate Consideration
of Transportation-Related Radiological Environmental Impacts (May 15, 2001)
[hereinafter Staff Response]. In opposing the PFS motion, the State included a
statement of disputed and relevant material facts and the affidavit of Radioactive
Waste Management Associates Senior Associate Dr. Marvin Resnikoff, with
supporting materials.See State Response, [State] Statement of Disputed and
RelevantMaterialFacts[hereinafterState DisputedFacts];id.Exh.1(Declaration
of Dr. Marvin Resnikoff Regarding Material Facts in Dispute with Respect to
Contention Utah V) [hereinafter Resnikoff Declaration]. The Staff included
the declaration of Office of Nuclear Material Safety and Safeguards Spent Fuel
Project Nuclear Engineer Robert J. Lewis in support of its position that the PFS
motion should be granted.See Staff Response, unnumbered exhibit (Affidavit of
Robert J. Lewis Concerning Utah Contention V) [hereinafter Lewis Declaration].
Finally, the Staff’s pleading engendered a May 25, 2001 State reply opposing the
Staff’s support for the PFS contention Utah V summary disposition request.See
[State] Reply to Staff’s Response to [PFS] Motion for Summary Disposition of
[Contention Utah V] (May 25, 2001) [hereinafter State Reply].
158
II. ANALYSIS
A. Summary Disposition Standards
The standard governing a presiding officer’s consideration of a motion for
summary disposition is well established and has been repeatedly used in this
proceeding in ruling on previous PFS motions:
Under 10 C.F.R. §2.749(a), (d) summary disposition may be entered with respect to
any matter (or all of the matters) in a proceeding if the motion, along with any appropriate
supporting material, shows that there is ‘‘no genuine issue as to any material fact and that
the moving party is entitled to a decision as a matter of law.’’ The movant bears the initial
burden of making the requisite showing that there is no genuine issue as to any material
fact, which it attempts to do by means of a required statement of material facts not at issue
and any supporting materials (including affidavits, discovery responses, and documents) that
accompany its dispositive motion. An opposing party must counter each adequately supported
material fact with its own statement of material facts in dispute and supporting materials, or the
movant’s facts will be deemed admitted.See Advanced Medical Systems, Inc.(One Factory
Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102-03 (1993).
LBP-01-19, 53 NRC 416, 421-22 (2001) (quoting cited cases from this pro-
ceeding).
Withthesegeneralprinciplesasthebackdrop,wenowturntothePFSsummary
disposition motion regarding contention Utah V.
B. Application to Contention Utah V
1. PFS Position
PFS provides nine undisputed material facts in support of its argument that
the State’s concerns with respect to the ER analysis of transportation-related
impacts, as articulated in contention Utah V as admitted by the Board, have been
rendered moot by the subsequent Staff DEIS. Initially, PFS recognizes that its
June 1997 ER analysis of the transportation-related environmental impacts was
based on 10 C.F.R. §51.52(a), Table S-4, rather than a detailed, facility-specific
analysis.See PFS Undisputed Facts at 1. According to PFS, however, the
June 2000 issuance of the DEIS displaced the ER Table S-4-based analysis by
providing an ‘‘independent, detailed analysis — not based on Table S-4 — of
potential environmental impacts from transportation of spent nuclear fuel to and
from the [PFS facility].’’ PFS Dispositive Motion at 5. Thus, instead of relying
upon Table S-4, the DEIS analysis used the RADTRAN 4 computer code to
modeland estimate the potentialradiologicalimpactsfromincident-freetransport
and potential transportation accidents using the PFS-specific parameters for cask
loading.
159
Although noting agency case law that contentions challenging an ER are
considered as also contesting a subsequently prepared DEIS, PFS nonetheless
concludesthatthe upshotof the above-describeddevelopmentsregardingthe PFS
facility DEIS is that contention Utah V now raises no disputed issues of material
fact.See PFS Dispositive Motion at 5-6 (citing Louisiana Energy Services, L.P.
(Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 84 (1998);Duke Power
Co.(Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1049
(1983)).Thisresult follows, accordingto PFS, because(1)the State didnot revise
contention Utah V following issuance of the DEIS, notwithstanding the fact the
DEIS did not rely upon Table S-4 that was the focus of contention Utah V as
admitted; and (2) the Board rejected late-filed contentions Utah LL through Utah
OO by which the State sought to challenge the non-Table S-4 dependent DEIS
transportationanalysis. The concernsexpressed in contentionUtah V thus having
been addressed so as to render that contentionmoot, PFS maintains that summary
disposition in its favor is appropriate.See PFS Dispositive Motion at 7-10.
2. Staff Position
The Staff agrees with PFS that there no longer exists any genuine dispute
of material fact with respect to contention Utah V. According to the Staff,
the DEIS discussion of transportation-relatedradiological environmental impacts
eliminatesanygenuinedisputeofmaterialfactconcerningtheassertionscontained
in contention Utah V. In this regard, the Staff also points out that section 5.7.2
of the DEIS, which provides an analysis of the transportation-relatedradiological
environmentalimpactsoftheproposedPFS facility,doesnotrelyonTableS-4but
uses PFS facility-specific considerations and RADTRAN 4 computer analyses to
assess theincident-freeandaccident-relatedradiologicalimpactsofcross-country
and regional transportation of spent fuel to and from the PFS facility. Arguing,
like PFS, that the State may not change the scope of its contention to raise a
challengetotheDEIS,intheStaff’sviewthescopeofcontentionUtahVislimited
to whether a case-specific analysis that does not rely upon Table S-4 should be
used to determine the transportation-related radiological environmental impacts
of the PFS proposal. According to the Staff, the subsequent DEIS, by providing a
facility-specific transportation impacts analysis, differs so significantly from the
ER that the State had to amendits contentionor file a new contentionto challenge
the adequacy of the DEIS analysis, which it failed to do in a timely manner. In
light of these circumstances, the Staff concludes that PFS has met its burden of
showing that there are no material facts in dispute regarding contention Utah V
and so should have summary disposition entered in its favor.See Staff Response
at 4-6.
160
3. State Position
Seeking to establish the existence of a material factual dispute with regard
to PFS material facts six and seven, the State notes that the DEIS includes an
analysis of the environmental effects of transporting spent nuclear fuel to and
from the proposed PFS facility based on RADTRAN 4 computer modeling,
but disputes that there is a sufficiently detailed analysis of the environmental
effects of transporting fuel and wastes to and from the reactor as required by 10
C.F.R. §51.52(b), with a listing of what it considers to be specific deficiencies
in the DEIS analysis.See State Disputed Material Facts at 1-2 (citing Resnikoff
Declarationat3-5). AccordingtotheState,contentionUtahVisabroadchallenge
to the adequacy of any analysis of the impacts from the transportation of spent
nuclear fuel to and from the proposed PFS facility, and not simply a challenge
to an analysis that relies upon Table S-4. As a result, it clearly has established
a material factual dispute relative to the adequacy of the DEIS transportation
impacts analysis such that summary disposition relative to contention Utah V is
not appropriate.See State Response at 3-9;see also State Reply at 3-4.
4. Board Ruling
As admitted, contention Utah V concerns alleged inadequacies in the use of
Table S-4 relative to the analysis of transportation-related radiological impacts.
Whatever the situation prior to the submission of the Staff’s DEIS transporta-
tion analysis, there is no question now that the revised transportation analysis
provided in the DEIS is not based on Table S-4, a significant change from the
ER transportation analysis. Despite the State’s reliance on what it considers
flaws and inadequacies in the DEIS analysis relative to the requirements in 10
C.F.R. §51.52(b) — particularly the ability of certain reactor sites to handle the
HI-STAR 100 shipping cask or its railcar — those arguments do not support a
denial of summary disposition for contention Utah V. As was the case previously
with contention Utah C,see LBP-99-23, 49 NRC 485, 492-93 (1999), the State’s
displeasure with a revised analysis does not mean there is controversy, factual or
otherwise, regarding an existing contention relating to the same general subject.
In this instance, the State’s arguments regarding the alleged current deficiencies
in the DEIS transportation analysis should have been channeled into a new
contention (or perhaps an amended version of contention Utah V), an action the
State already tried to take, albeit unsuccessfully. Thus, absent some additional
significant change in the final environmental impact statement,see 10 C.F.R.
161
§2.714(b)(2)(iii), the time for introducing such matters into this proceeding
appears to have long since passed.
2
III. CONCLUSION
InconnectionwithcontentionUtahV,InadequateConsiderationofTransporta-
tion-Related Radiological Environmental Impacts, in light of the revised
transportation impacts analysis put forth by the Staff in its June 2000 DEIS,
we conclude that PFS has met its burden of establishing there are no material
factual issues remaining in dispute regarding contention Utah V so as to entitle
it to a judgment in its favor as a matter of law in that contention Utah V is now
moot.
For the foregoing reasons, it is, this first day of August 2001, ORDERED
that the April 16, 2001 motion for summary disposition of PFS regarding
contentionUtah V is granted and, for the reasons set forth in section II.B.4 of this
Memorandum and Order, a decision regarding contention Utah V is rendered in
favor of PFS on the ground that the issue is now moot.
THE ATOMIC SAFETY AND
LICENSING BOARD
3
G. Paul Bollwerk, III, Chairman
ADMINISTRATIVE JUDGE
Dr. Jerry R. Kline
ADMINISTRATIVE JUDGE
Dr. Peter S. Lam
ADMINISTRATIVE JUDGE
Rockville, Maryland
August 1, 2001
2 As the discussion above makes clear, the ultimate issue of the validity or adequacy of the DEIS transportation
analysis is not now before us. We thus do not express a view on the ‘‘correctness’’ of the Staff’s revised DEIS
analysis. Instead, we consider the Staff’s computer-modeled analysis of the transportation-related radiological
environmental impacts facially sufficient to support the PFS ‘‘mootness’’ argument regarding contention Utah V.
3 Copies of this Memorandum and Order were sent this date by Internet e-mail transmission to counsel for (1)
Applicant PFS; (2) Intervenors Skull Valley Band of Goshute Indians, Ohngo Gaudadeh Devia, Confederated Tribes
of the Goshute Reservation, Southern Utah Wilderness Alliance, and the State; and (3) the Staff.
162
Cite as 54 NRC 163 (2001)LBP-01-23
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
G. Paul Bollwerk, III,Chairman
Dr. Jerry R. Kline
Dr. Peter S. Lam
In the Matter of Docket No. 72-22-ISFSI
(ASLBP No. 97-732-02-ISFSI)
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) August 1, 2001
In this proceeding concerning the application of Private Fuel Storage, L.L.C.
(PFS), under 10 C.F.R. Part 72 to construct and operate an independentspent fuel
storage installation (ISFSI), acting pursuant to 10 C.F.R. §2.749, the Licensing
Board grants a PFS request for summary disposition in its favor regarding
contention Utah Z, No Action Alternative, finding that a discussion in the NRC
Staff’sJune2000draftenvironmentalimpactstatement(DEIS)thatanalyzesboth
theadvantagesanddisadvantagesoftheno-actionalternativemootsthiscontention
asserting that such a discussion was missing from the PFS environmental report
(ER).
RULES OF PRACTICE: SUMMARY DISPOSITION (BURDEN OF
PERSUASION; BURDEN OF PROOF)
Under 10 C.F.R. §2.749(a), (d) summary disposition may be entered with
respect to any matter (or all of the matters) in a proceeding if the motion, along
with anyappropriatesupportingmaterial, showsthatthere is‘‘nogenuineissue as
to any material fact and that the moving party is entitled to a decision as a matter
163
of law.’’ The movantbears the initial burdenof makingthe requisite showingthat
there is no genuine issue as to any material fact, which it attempts to do by means
of a required statement of material facts not at issue and any supporting materials
(including affidavits, discovery responses, and documents) that accompany its
dispositive motion. An opposing party must counter each adequately supported
material fact with its own statement of material facts in dispute and supporting
materials, or the movant’s facts will be deemed admitted.See Advanced Medical
Systems, Inc.(One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98,
102-03 (1993).
RULES OF PRACTICE: CONTENTIONS (MODES OF
FORMULATION)
At a petitioner’s choosing, a contention can take three forms: a challenge
to the application’s adequacy based on the validity of the information that is in
the application; a challenge to the application’s adequacy based on its alleged
omission of relevant information; or some combination of these two challenges.
See 10 C.F.R. §2.714(b)(2)(iii).
RULES OF PRACTICE: CONTENTIONS (SCOPE)
In determining which of the three forms is involved in any contention, a
presiding officer should look first to the language of the contention. If that proves
unavailing, the language of the bases provided to support the contention may be
examined to discern the sponsor’s intent relative to the contention’s scope and
meaning.See Public Service Co. of New Hampshire (Seabrook Station, Units 1
and 2), ALAB-899, 28 NRC 93, 97 (1988) (explaining that when ‘‘the issue is
the scope of a contention, there is no good reason not to construe the contention
and its bases together in order to get a sense of what precise issue the party seeks
to raise’’).
RULES OF PRACTICE: CONTENTIONS (SCOPE)
NEPA: CONTENTIONS (SCOPE; AMENDMENT)
When a superseding DEIS includes an analysis that discusses matters
specifically identified by the intervenor in a contention as missing from the
discussion in the applicant’s environmental report, and what the intervenor now
questions is the adequacy of that DEIS analysis, the intervenor can do so in the
context of a timely, properly framed new or amended contention outlining the
intervenor’s concerns about the DEIS discussion.
164
RULES OF PRACTICE: CONTENTIONS (SCOPE)
NEPA: CONTENTIONS (SCOPE)
A contention contesting an applicant’s ER may be viewed as a challenge
to the Staff’s subsequently issued DEIS/EIS.See Louisiana Energy Services,
L.P.(Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 84 (1998). This
‘‘migration’’ tenet does not, however, change the basic form of the contention,
i.e., whether it challenges the soundness of the information provided or claims
that necessary information has been omitted (or some combination of the
two).
MEMORANDUM AND ORDER
(Granting Summary Disposition Motion Regarding
Contention Utah Z)
Pending before the Licensing Board in this 10 C.F.R. Part 72 proceeding
concerningtheapplicationofPrivateFuelStorage,L.L.C.(PFS),forauthorization
to construct and operate an independent spent fuel storage installation (ISFSI) in
Skull Valley, Utah, is a motion for summary disposition filed by PFS regarding
contention Utah Z, No Action Alternative. With contention Utah Z, Intervenor
State of Utah (State) challenges the adequacy of the ‘‘no-action’’ alternative
discussion in the environmental report (ER) that accompanied the PFS ISFSI
application. The NRC Staff supports the PFS summary disposition request, while
the State opposes this motion.
Pursuantto 10 C.F.R. §2.749, for the reasonsset forth below we grant the PFS
dispositive motion.
I. BACKGROUND
In June 1997, as part of its license application for its proposed ISFSI,
PFS submitted an ER addressing various issues pertaining to the National
EnvironmentalPolicy Act of 1969(NEPA).See 10 C.F.R. §§51.45,51.60(b)(iii).
On November 23, 1997, the State filed its safety and environmental contentions
relating to the PFS application, including a challenge to the adequacy of the ER’s
discussion of the no-action alternative under NEPA.See [State] Contentions on
the Construction and Operating License Application by [PFS] for an Independent
Spent Fuel Storage Facility (Nov. 23, 1997) [hereinafter Utah Contentions]. The
contention now at issue — contention Utah Z — was admitted in its entirety by
the Licensing Board in its April 1998 ruling on standing and contentions.See
165
LBP-98-7, 47 NRC 142, 203,aff’d on other grounds,CLI-98-13, 48 NRC 26
(1998).
As admitted, that contention reads:
The Environmental Report does not comply with NEPA because it does not adequately discuss
the ‘‘no action’’ alternative.
Id.at 256. In describing the basis for the admitted portions of this contention,
the State declared that PFS’s ER focused ‘‘solely on the perceived disadvantages
of the no build alternative’’ and therefore ‘‘fail[ed] to provide [a] balanced
comparison of environmental consequences among alternatives.’’See Utah
Contentionsat 169. To illustrate this failure, the State listed several advantagesof
the no-action alternative that PFS allegedly ignored in its ER: (1) the benefits of
foregoingshipmentof 4000 casks of spentfuel rods thousandsof miles across the
country; (2) the diminished potential for sabotage at a centralized storage facility;
(3) the decreased risk of accidents from additional cask handling; and (4) the
safety gains in storing spent fuel at the reactor sites, whose spent fuel pools will
be accessible for transfers or inspections.See id.at 169-70.
Thereafter, in a May 18, 1998 ruling on reconsideration motions relating to
its April 1998 decision, the Board clarified the scope of the admitted contention
by excluding consideration of the aforementioned sabotage aspects of contention
Utah Z.See LBP-98-10, 47 NRC 288, 296 (1998). Additionally, in a November
9, 2000 memorandum and order, the Board further clarified the scope of Utah
Z by limiting it to environmental impacts and excluding economic impacts.
See Licensing Board Memorandum and Order (Ruling on Contention Utah Z
Discovery Production Requests) (Nov. 9, 2000) at 4 (unpublished).
In June 2000, the Staff issued its draft environmentalimpact statement (DEIS)
regarding the PFS facility.See Draft Environmental Impact Statement for the
Construction and Operation of an Independent Spent Fuel Storage Installation on
the Reservation of the Skull Valley Band of Goshute Indians and the Related
TransportationFacility in Tooele County, NUREG-1714(June 2000)[hereinafter
DEIS]. Among other things, the DEIS provided a ‘‘no-action alternative’’
discussion containing an expanded analysis of the environmental impacts that
might stem from the PFS proposal.Compare ER at 8.1-2 to -4 with DEIS at 6-43
to-47,9-8to-9&Table9.1(summaryandcomparisonofpotentialenvironmental
impacts).
On February 14, 2001, PFS filed a motion for summary disposition of
contention Utah Z, which is presently before us for resolution, supported by a
statement of material facts not in dispute. The premise of this motion is that
there is no genuine dispute of material fact with respect to the State’s no-action
alternative contention Utah Z challenging the ER in that the State’s contention
wasrenderedmootby theStaff’ssubsequent coverageof the no-actionalternative
166
in the DEIS.See [PFS] Motion for Summary Disposition of Utah Contention Z
— No Action Alternative (Feb. 14, 2001) at 6-18 [hereinafter PFS Dispositive
Motion];see also id.Statement of Material Facts on Which No Genuine Dispute
Exists [hereinafter PFS Undisputed Facts].
In its March 6, 2001 response to the PFS summary disposition motion, the
Staff declared its support for this PFS request. In its response, which is supported
by the affidavit of Scott C. Flanders, a Senior Project Manager in the Spent Fuel
Project Office of the Office of Nuclear Material Safety and Safeguards, the Staff
agrees with PFS that the DEIS renders contention Utah Z moot.See NRC Staff’s
Response to [PFS] Motion for Summary Disposition of Utah Contention Z —
No Action Alternative (March 6, 2001) at 5-7 [hereinafter Staff Response];see
also id.Attach. A (Affidavit of Scott C. Flanders Concerning Utah Contention
Z) [hereinafter Flanders Affidavit]. The State, on the other hand, opposes the
PFS motion in all respects, supported by a statement of disputed and relevant and
materialfactsandtheaffidavitofDr.MarvinResnikoff,aseniorassociatewiththe
private consulting firm Radioactive Waste Management Associates.See [State]
Response to [PFS] Motion for Summary Disposition on Utah Contention Z (Mar.
13, 2001) at 4-18 [hereinafter State Response];see also id.[State] Statement of
Disputed and Relevant Material Facts;id.Attach. A (Declaration of Dr. Marvin
Resnikoff Regarding Material Facts in Dispute with Respect to Contention Utah
Z). Thereafter, pursuant to 10 C.F.R. §2.749 and in accordance with a Board
schedulingorder,see LicensingBoardOrder(GeneralResponseSchedules)(Apr.
23, 1999) (unpublished), the State expressed its disagreement with the Staff
response as well.See [State] Reply to Staff’s Response to [PFS] Motion for
Summary Disposition on Utah Contention Z (March 22, 2001) [hereinafter State
Reply].
II. DISCUSSION
A. Summary Disposition Standards
We have articulated the standard governing the consideration of a motion for
summary disposition several times in this proceeding in ruling on previous PFS
dispositive motions and rely on that same standard here:
Under 10 C.F.R.§2.749(a), (d) summarydisposition may be entered with respect to any matter
(or all of the matters) in a proceeding if the motion, along with any appropriate supporting
material, shows that there is ‘‘no genuine issue as to any material fact and that the moving party
is entitled to a decision as a matter of law.’’ The movant bears the initial burden of making the
requisite showing that there is no genuine issue as to any material fact, which it attempts to do
by means of a required statement of material facts not at issue and any supporting materials
(including affidavits, discovery responses, and documents) that accompany its dispositive
motion. An opposing party must counter each adequately supported material fact with its own
167
statement of material facts in dispute and supporting materials, or the movant’s facts will be
deemed admitted.See Advanced Medical Systems, Inc.(One Factory Row, Geneva, Ohio
44041), CLI-93-22, 38 NRC 98, 102-03 (1993).
LBP-01-19, 53 NRC 416, 421-22 (2001) (quoting cited cases from this pro-
ceeding).
With these general principlesin mind, we turn to the PFS summarydisposition
motion regarding contention Utah Z.
B. Contention Utah Z
1. PFS Position
In this instance, PFS has provided a statement of purportedly undisputed
material facts indicating that the State-alleged deficiencies regarding the no-
action alternative discussion in the ER (i.e., the supposed PFS discussion only
of the disadvantages of the no-action alternative) are, in fact, addressed in the
Staff-issued DEIS. Initially, PFS notes that the DEIS specifically acknowledges
in chapter six:
‘‘Under the no-action alternative, no PFS [facility] and no transportation facilities would be
constructed in Skull Valley. The impacts described in Chapters 4 and 5 of the DEIS would not
occur, and Skull Valley would remain as it is today (see Chapter 3).’’
PFS Dispositive Motion at 9 (quoting DEIS at 6-43). According to PFS, DEIS
chapters four and five are, respectively, sixty-five page discussions of PFS
facility construction and operation impacts and transportation impacts. Also
relevant to the State’s concerns, PFS declares, is the portion of DEIS chapter
six that assesses the impact of the no-action alternative for future at-reactor
ISFSIs relative to geology/minerals/soils,water resources, air quality, ecological/
socioeconomic/community/cultural resources, and human health.See id.at 9-
10;see also DEIS at 6-45 to -47. And as further evidence that the State’s
contention Utah Z concern regarding the no-action alternative analysis has now
been addressed, PFS maintains that DEIS chapter 9 contains a comparative table
summary of the impacts of alternative actions considered in the DEIS, including
the no-action alternative.See PFS Dispositive Motion at 10.
Moreover,accordingtoPFS,severalsectionsoftheDEISaddresstheparticular
assertionsthatformthebasisoftheState’scontentionUtahZchallengetothePFS
ER relative to its discussion of the environmental advantages and disadvantages
of the no-action alternative.
1 In connection with the State’s contention Utah Z
1 PFS notes that the other specific basis for the State’s no-action alternative contention — sabotage avoidance —
was dismissed by the Board.SeePFS Dispositive Motion at 2 (citing LBP-98-10, 47 NRC 288, 296 (1998)).
168
concern about the transportation effect advantages of the no-action alternative,
PFS highlights the DEIS chapter five discussion of the effects of transporting
4000 casks of spent fuel across the country, the statement in DEIS chapter six
indicating that the impacts described in chapters four and five would not occur
if the proposed ISFSI were not built, and the chapter nine table comparison of
transportation impacts, including the no-action alternative.See PFS Dispositive
Motion at 11-13;see also DEIS at 5-35, 6-43, 9-34 to -35 (Table 9.1). Relative
to the State’s contention Utah Z challenge to the lack of ER discussion about the
accident risk increase associated with cask handling, PFS points out there is a
measurement in DEIS chapter four of the impact of cask handling accidents as
well as a conclusion that the effects of such an accident would be insignificant.
See PFS Dispositive Motionat 13-15;see also DEISat 4-48. Finally, with respect
to the State’s contention Utah Z challenge regarding the failure to outline the
safety advantages of onsite waste storage at existing reactors, PFS declares that
the DEIS recognizes another advantage of the no-action alternative, specifically
that at-reactor storage is safe and will not have any significant incremental
environmental impact.See PFS Dispositive Motion at 15-17;see also DEIS at
6-44.
Based on this DEIS considerationof the no-actionalternative, PFS thus asserts
that the concerns raised by contention Utah Z regarding the inadequate PFS
ER discussion of the advantages of the no-action alternative have been satisfied.
AccordingtoPFS, thisrendersmootanyState assertionthatabalanceddiscussion
of the no-action alternative was lacking, thus entitling it to summary disposition
in its favor on contention Utah Z.See PFS Dispositive Motion at 18.
2. Staff Position
For its part, the Staff agrees with PFS, declaring that the DEIS sufficiently
covers both the advantages and disadvantages of the no-action alternative so as
to satisfy NEPA’s requirements as well as the points highlighted by the State as
the basis for contention Utah Z.See Staff Response at 8-13;see also Flanders
Affidavit at 2-3. Thus, the Staff concludes that by virtue of the DEIS, there no
longer is any genuine issue of material fact relative to contention Utah Z so that
summary disposition in favor of PFS is appropriate.
3. State Position
In opposingthe PFS dispositive motion, the State rejects the PFS assertion that
contention Utah Z is merely a challenge to the failure of the ER to address the
advantages of the no-action alternative. The State asserts that this interpretation
is contrary to the plain language of contention Utah Z in that the contention
169
does not state that the ER is devoid of all discussion of the no-action alternative.
Instead, the State maintains that the ER did not properly consider the no-action
alternative and failed to provide a balanced comparison between the advantages
and disadvantages of the option. According to the State, the contention was
intended as a challenge to the adequacy of the qualitative discussion of the
no-action alternative in the ER.See State Response at 5;see also State Reply 2-3.
Based on this interpretation of the scope of contention Utah Z, the State insists
that PFS has failed to meet its burden relative to its summary disposition request.
According to the State, as was the case with the ER, the DEIS presents the no-
action alternative in a conclusory, biased manner by claiming and emphasizing
the disadvantages of that alternative without justifying them.See State Response
at 5-7;see also State Reply at 4-8, 9-10. The State asserts that this is apparent
from the DEIS discussion of the three disadvantages that also were identified
in the ER — spent fuel storage space loss leading to power generation loss;
delays in reactor decommissioning activities and associated expenses incurred
for continued at-reactor spent fuel storage; and the need to construct additional
reactor storage sites — each of which is inadequately supported and analyzed.
See State Response at 7-14;see also State Reply at 8. Further, the State declares,
as was the case with the ER, the DEIS still fails to discuss adequately each of the
three specific ‘‘advantage’’ items referenced in the basis statement to contention
Utah Z. According to the State, relative to the question of transportation impacts,
the DEIS fails to recognize that postponing spent fuel shipments until a final
repositoryis constructedwillresultin reducedradioactivitylevels, andsoreduced
occupational and public doses, relative to the transported fuel. So too, the State
asserts the DEIS fails to analyze adequately the no-action impacts of reduced
exposures and other environmental benefits that would result from (1) fewer fuel
handling operations; (2) fewer managerial actions and human errors that could
result in transportation accidents or en route delays; and (3) the likelihood that
existing reactor facilities will continue to store fuel onsite, regardless of whether
an offsite facility like the PFS proposal is constructed. Finally, the State declares
that the DEIS no-action alternative analysis is deficient because it does not
recognize the benefits of onsite storage at existing reactor facilities vis-a-vis the
possibility of military aircraft crash-related radiological releases, which the State
asserts are a concern only with regard to the PFS facility.See State Response at
14-18;see also State Reply at 9.
4. Board Ruling
From this discussion, it is apparent that the parties’ submissions relative to
the PFS dispositive motion highlight the initial, and potentially determinative,
question that must be answered relative to contention Utah Z, i.e., what is the
scope of this State issue statement? In this regard, the Commission has made
170
it clear that in drafting contentions regarding a challenged licensing action, the
application (including an accompanying Safety Analysis Report and ER) is to
be the initial focus of any issue statements and their supporting bases. As the
Commissionalsohasmadeclear, atthe petitioner’schoosing,suchstatementscan
takethreeforms:achallengetotheapplication’sadequacybasedonthevalidityof
theinformationthatisintheapplication;achallengetotheapplication’sadequacy
based on its alleged omission of relevant information; or some combination of
these two challenges.See 10 C.F.R. §2.714(b)(2)(iii). Further, it is apparent that
in determining which of these three forms is involved in any contention, we look
first to the languageof the contention. Yet, if that provesunavailing,the language
of the bases provided to support the contention may be examined to discern
the sponsor’s intent relative to the contention’s scope and meaning.See Public
Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28
NRC 93, 97 (1988) (explaining that when ‘‘the issue is the scope of a contention,
there is no good reason not to construe the contention and its bases together in
order to get a sense of what precise issue the party seeks to raise’’).
In this instance, the contention in question is relatively succinct, declaring
simply that the PFS ER did not ‘‘adequately discuss’’ the no-action alternative.
On its face, it is unclear which of the three forms of application challenges
outlined above this issue statement is intended to encompass. To ascertain the
scopeofthiscontention,therefore,we mustexaminethetwo-pagebasisstatement
provided by the State. As was noted above,see supra p. 166, the basis for
contention Utah Z declares the ER does not meaningfully discuss the no build
alternative because PFS focuses ‘‘solely on the perceived disadvantagesof the no
build alternative.’’ It then provides three examples of this purported deficiency
— transportation, spent fuel handling, and existing onsite storage expansion —
that the State asserts are not considered at all so as to render the PFS discussion
‘‘one-sided.’’ Moreover, in seeking to support this challenge to the ‘‘adequacy’’
of the ER, the State also relied on four judicial decisions, all of which are
described as supporting the proposition that an agency failure to discuss the
no-build alternative is improper.
2
Under the circumstances, it is apparent that contention Utah Z, as framed
by the State, was an ‘‘omission’’ challenge to the no-action alternative aspect
of the ER that was based on the alleged PFS failure to include a discussion of
certain information, specifically the disadvantages of the no-action alternative.
Putting aside the question of whether or not an ER (or DEIS/EIS) lacking such
a discussion would be adequate, the superseding DEIS includes a no-action
2 As PFS points out, only three of these cases actually involve a failure to discuss the no-build alternative.See
PFS Dispositive Motion at 11. The fourth,Van Abbema v. Fornell,807 F.2d 633, 640-43 (7th Cir. 1986), is based
on an agency’s reliance on a record containing known factual inconsistencies and ambiguities that the agency made
no attempt to resolve, a situation unlike that before the Board.
171
alternative analysis that discusses both the advantages and disadvantages of the
proposed course of action, including the three matters specifically identified by
the State. What also is apparent is that the State now questions the adequacy of
that analysis in the DEIS. This is certainly something the State can do, so long as
it doesso in the contextof a timely, properlyframed contention. As profferedand
admitted, however,contentionUtah Z does not providethe vehicle to pursue such
a challenge. Rather, what is needed is a new or amended contention outlining the
State’s concerns about the DEIS discussion of the no-action alternative.
3 At this
point, more than a year after the DEIS was issued, whether the State could gain
the admission of such an issue seems problematic. In any event, because the State
has made no such request, that is not a matter we need resolve at this juncture.
Instead,relative to thematter beforeus, forthe reasonsset forthabove,we find
that PFS has met its burden of showing there are not material facts at issue so as
to be entitled to summary disposition regarding contention Utah Z, as admitted,
in that the State concern framed by that issue statement is now moot.
4
III. CONCLUSION
WithregardtocontentionUtahZ,NoActionAlternative,basedontheinclusion
of a discussion in the DEIS that analyzes both the advantages and disadvantages
of the no-action alternative, PFS has established that there are no genuine issues
as to any material fact and that it is entitled to judgment in its favor as a matter of
law regarding that State issue statement, which is now moot.
For the foregoing reasons, it is, this first day of August 2001, ORDERED that
the February 14, 2001 PFS motion for summary disposition of contention Utah
Zisgranted and, for the reasons set forth in section II.B.4 of this Memorandum
3 As the parties noted, the Commission has recognized that a contention contesting an applicant’s ER may be
viewedasachallenge tothe Staff’s subsequentlyissuedDEIS/EIS.See, e.g.,Staff Responseat9-10 (citingLouisiana
Energy Services, L.P.(Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 84 (1998)). This ‘‘migration’’ tenet
does not, however, change the basic form of the contention, i.e., whether it challenges the soundness of the
information provided or claims that necessary information has been omitted (or some combination of the two).
4 Although the issue of the qualitative validity of the DEIS no-action analysis is not now before us, the Staff’s
DEIS analysis nonetheless is facially sufficient to support the PFS argument regarding the mootness of contention
Utah Z in connection with the asserted failure to discuss the disadvantages of the no-action alternative.
172
and Order, a decision regarding contention Utah Z is rendered in favor of PFS on
the ground that issue is now moot.
THE ATOMIC SAFETY AND
LICENSING BOARD
5
G. Paul Bollwerk, III, Chairman
ADMINISTRATIVE JUDGE
Dr. Jerry R. Kline
ADMINISTRATIVE JUDGE
Dr. Peter S. Lam
ADMINISTRATIVE JUDGE
Rockville, Maryland
August 1, 2001
5 Copies of this Memorandum and Order were sent this date by Internet e-mail transmission to counsel for (1)
Applicant PFS; (2) Intervenors Skull Valley Band of Goshute Indians, Ohngo Gaudadeh Devia, Confederated Tribes
of the Goshute Reservation, Southern Utah Wilderness Alliance, and the State; and (3) the Staff.
173
Cite as 54 NRC 174 (2001)LBP-01-24
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
G. Paul Bollwerk, III,Chairman
Dr. Jerry R. Kline
Dr. Peter S. Lam
In the Matter of Docket No. 72-22-ISFSI
(ASLBP No. 97-732-02-ISFSI)
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) August 21, 2001
In this proceeding concerning the application of Private Fuel Storage, L.L.C.
(PFS), under 10 C.F.R. Part 72 to construct and operate an independent spent
fuel storage installation (ISFSI), the Licensing Board grants a joint motion of
ApplicantPFS and IntervenorState of Utah to dismiss, with prejudice,contention
Utah T, Inadequate Assessment of Required Permits and Other Entitlements,
based on the parties’ agreement to record in the PFS environmental report their
disagreement concerning the permits, licenses, approvals, and other entitlements
that must be obtained in connection with the PFS ISFSI license application.
MEMORANDUM AND ORDER
(Dismissing Contention Utah T)
In this proceeding regarding the August 1997 application of Private Fuel
Storage, L.L.C. (PFS), for authorization to construct and operate a 10 C.F.R.
Part 72 independent spent fuel storage installation (ISFSI) in Skull Valley, Utah,
by motion dated August 10, 2001, PFS and Intervenor State of Utah (State)
174
have requested that the Licensing Board dismiss contention Utah T, Inadequate
Assessment of Required Permits and Other Entitlements, with prejudice, on the
ground that the parties have reached an acceptable resolution of the contention.
According to the joint motion, these parties have successfully completed
negotiations regarding this contention, in which the State asserts that the PFS
‘‘‘EnvironmentalReportdoesnotlist’’’allpermits,licenses, approvalsandother
entitlementsthat must be obtainedin connectionwith the PFS license application,
as required by 10 C.F.R. §51.45(d). Joint Motion to Dismiss Utah Contention
T (Aug. 10, 2001) at 1 (quoting LBP-98-7, 47 NRC 142, 255,reconsideration
granted in part and denied in part on other grounds,LBP-98-10, 47 NRC 288,
aff’d on other grounds,CLI-98-13, 48 NRC 26 (1998)).
1 The joint motion also
indicatesthatPFS counselhasdiscussed thismotionwith NRC staff counsel, who
does not object to the Board granting this request.See Joint Motion at 2. No other
party has objected to, or otherwise commented on, the PFS/State motion.
According to the joint motion, under the terms of their settlement accord,
the parties have agreed to record in the PFS Environmental Report (ER) their
disagreement concerning the permits, licenses, approvals, and other entitlements
that must be obtained in connection with the PFS ISFSI license application. The
State and PFS have agreed that, if a listing and description of the permitting
requirementsasserted bythe State to be applicableto thePFS facility are included
as part of the PFS ER, contention Utah T can be dismissed with prejudice.See id.
at 1. Further, attached as exhibit 1 to the joint motion is a listing of the various
permits, licenses, approvals, and other entitlements that the State claims must be
obtained by PFS in connection with the PFS facility. According to the motion,
PFS believes that the exhibit makes clear that many of the permits identified by
the State in exhibit 1 are not required, and that the ER as currently constituted
identifies the appropriate environmental permitting needs for the project. The
motion also indicates, however, that both PFS and the State have agreed to the
addition of exhibit 1 to the PFS ER, uponwhich basis they further agree that Utah
T may be dismissed with prejudice. Finally, the motiondeclaresthat PFS will add
the new language to the ER as a part of the first ER revision following dismissal
of the contention.See id.at 2.
After reviewing the joint motion and the accompanying exhibit, and finding
nothing therein that is inconsistent with the public interest, we thus grant the
1 Subsequent to the admission of what initially was consolidated contention Utah T/Castle Rock 10, 12, 22,
see LBP-98-7, 47 NRC at 198, sponsoring Intervenors Castle Rock Land and Livestock, L.C., and Skull Valley
Company, Ltd., filed a notice of withdrawal, with prejudice, regarding their admitted contentions, to which the State
responded with a request that, among other things, asked that all portions of this consolidated contention be retained
for further litigation. In LBP-99-6, 49 NRC 114, 122 (1999), ruling on this State request, the Board limited the scope
of the contention by excising that portion regarding the Clean Water Act permitting authority of Intervenor Skull
Valley Band of Goshute Indians (Skull Valley Band) on whose Skull Valley, Utah reservation the PFS facility is to
be constructed and operated.
175
August 10, 2001 joint motion to dismiss. Further, as requested by PFS and the
State, contention Utah T is dismissed with prejudice.
It is so ORDERED.
THE ATOMIC SAFETY AND
LICENSING BOARD
2
G. Paul Bollwerk, III, Chairman
ADMINISTRATIVE JUDGE
Jerry R. Kline
ADMINISTRATIVE JUDGE
Peter S. Lam
ADMINISTRATIVE JUDGE
Rockville, Maryland
August 21, 2001
2 Copies of this Memorandum and Order were sent this date by Internet e-mail transmission to counsel for (1)
Applicant PFS; (2) Intervenors Skull Valley Band, Ohngo Gaudadeh Devia, Confederated Tribes of the Goshute
Reservation, Southern Utah Wilderness Alliance, and the State; and (3) the Staff.
176
Cite as 54 NRC 177 (2001)LBP-01-25
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
Ann Marshall Young,Chair
Dr. Peter S. Lam
Thomas D. Murphy
In the Matter of Docket No. 50-213-OLA
(ASLBP No. 01-787-02-OLA)
CONNECTICUT YANKEE ATOMIC
POWER COMPANY
(Haddam Neck Plant) September 17, 2001
In this license termination proceeding under 10 C.F.R. §50.82(a)(9), (10),
the Licensing Board denies Applicant Connecticut Yankee’s Motion for
ReconsiderationoftheBoard’srulingonPetitionerCitizensAwarenessNetwork’s
Contention 6.1, relating to dose modeling calculation methodology, (1) finding
that the Petitioner adequately supported the contention; (2) reframing a central
issue raised in the motion as that of the proper interpretation of the words,
‘‘averagemember,’’in 10C.F.R. §20.1402;(3)analyzingandstating theBoard’s
preliminary conclusion on the issue; and (4) given that the issue had not been
previously so defined, permitting parties to file motions on the issue.
REGULATIONS: INTERPRETATION (10 C.F.R. §20.1402)
The term, ‘‘average member,’’ in 10 C.F.R. §20.1402, is not defined in the
regulations, and the parties differ on how it should be interpreted. Therefore,
althoughtheApplicant’sMotionforReconsiderationcharacterizesthePetitioner’s
contention relating to this as an attack on a regulation, the issue is instead that of
the proper interpretation of the regulation in question.
177
REGULATIONS: INTERPRETATION
In the absence of any specific definition in a rule, it is appropriate to look first
to the meaning of the language of the provision in question, and to seek further
guidance in documents addressing the same subject matter addressed in the rule,
especiallythosetowhichtheCommission refersinitsStatementofConsiderations
(SOC) relating to the rule. Such guidance documents may assist in resolving any
ambiguities in a regulation’s language, even though they themselves do not carry
the binding effect of regulations or prescribe requirements, provided they do not
conflict with the plain meaning of the wording used in the regulation.
REGULATIONS: INTERPRETATION (10 C.F.R. §20.1402)
Because all of the International Commission on Radiological Protection
(ICRP) and Environmental Protection Agency (EPA) documents quoted in the
Commission’s SOC for 10 C.F.R. §20.1402 either allow for or recommend that
(1) averaging calculations, or calculation of an ‘‘arithmetic mean,’’ be performed
to determine the characteristics of the ‘‘average member of the critical group,’’
and (2) the characteristics of children be taken into account in performing such
calculations when appropriate, notwithstanding that one sentence from NUREG-
1727 is arguably inconsistent with such a reading, and based also upon the
Commission’s use in section 20.1402 of the more recent ICRP terms ‘‘critical
group’’ and ‘‘average member of the critical group,’’ rather than the older ICRP
term ‘‘Reference Man,’’ used by the EPA, it would be reasonable to conclude
that the Commission in using these terms intended that they be interpreted in a
manner consistent with these more recent recommendationsof the ICRP.
MEMORANDUM AND ORDER
(Ruling on Motion of Connecticut Yankee for Reconsideration
(Portions of LBP-01-21))
Applicant Connecticut Yankee Atomic Power Company (CYAPCO) moves,
in this proceeding in which Intervenors Citizens Awareness Network (CAN) and
Connecticut Department of Public Utility Control (CDPUC) challenge various
aspects of CYAPCO’s license amendmentapplication seeking approval under 10
C.F.R. §50.82(a)(9)-(10) of a License Termination Plan (LTP) for its Haddam
Neck Plant, that the Licensing Board reconsider a ruling in its July 9, 2001,
Memorandum and Order (Ruling on Standing and Contentions), LBP-01-21, 54
NRC 33 (2001) [hereinafter LBP-01-21], admitting CAN’s Contention 6.1 in
limited form.See id.at 93-94. For the reasons set forth below, the Board denies
CYAPCO’s motion.
178
BACKGROUND
CYAPCO filed its Motion for Reconsideration on July 18, 2001, originally
seeking reconsideration not only of the Board’s ruling on CAN Contention 6.1,
but also of the ruling on CDPUC’s Contention II.A. Motion of Connecticut
Yankee for Reconsideration (Portions of LBP-01-21) (July 18, 2001) [hereinafter
CYAPCO Motion for Reconsideration]. CDPUC, CAN, and the NRC Staff
filed responses on July 26, July 30, and August 2, 2001, respectively.See
Connecticut Department of Public Utility Control’s Response to Connecticut
Yankee’s Motion for Reconsideration (July 26, 2001) [hereinafter CDPUC
Response]; Citizens Awareness Network, Inc. Response to Connecticut Yankee
Atomic Power Company’sMotion for Reconsiderationof a Portion of Prehearing
Conference Order (July 30, 2001) [hereinafter CAN Response]; NRC Staff’s
Response to Motion of Connecticut Yankee for Reconsideration (Portions of
LBP-01-21) (Aug. 2, 2001) [hereinafter Staff Response]. CYAPCO subsequently
filed documents replying to CDPUC’s and CAN’s responses and moving, in the
same documents, for leave to file them.See Reply of Connecticut Yankee to
Connecticut Departmentof Public Utility Control’sResponse to CY’s Motion for
Reconsideration (Portions of LBP-01-21) (Aug. 6, 2001) [hereinafter CYAPCO
Reply to CDPUC]; Supplementary Filing to Reply of Connecticut Yankee to
Connecticut Departmentof Public Utility Control’sResponse to CY’s Motion for
Reconsideration (Portions of LBP-01-21) (Aug. 8, 2001) [hereinafter CYAPCO
Supplementary Reply to CDPUC]; Reply of Connecticut Yankee to CAN’s
Response to CY’s Motion for Reconsideration (Aug. 10, 2001) [hereinafter
CYAPCO Reply to CAN Response].
On August 29, 2001, CYAPCO counsel notified the Board that CYAPCO
and CDPUC were then in negotiations that, if successful, would result in the
withdrawal by CDPUC of Contention II.A. Counsel stated that the Board would
be notified by September 5, 2001, whether the negotiations had been successful,
and requested that no action be taken with regard to CDPUC Contention II.A
prior to such notification. On August 29, 2001, an order was entered granting
this request and delaying the issuance of a ruling on CYAPCO’s Motion for
Reconsideration until after September 5, 2001. On September 5, 2001, counsel
notified the Board that the negotiations in question had been concluded and that
CDPUC would shortly be filing a pleading withdrawing Contention II.A. On
September 12, 2001, CDPUC filed a Motion to Withdraw its Contention II.A,
dated September 11, Motion to Withdraw DPUC Contention II(A) (Sept. 11,
2001), which motion is hereby granted. As a result, this Order addresses only
CYAPCO’s motion with regard to CAN Contention 6.1.
179
PRIOR RULING
InLBP-01-21,theBoardadmittedCAN Contention6.1in part. Thecontention
reads as follows:
Contrary to the requirements of 10 C.F.R.50.82, the dose modeling calculation methodology
CYAPCO employs in the LTP is not adequate to demonstrate that the LTP will assure the
protection of the public health and safety.
LBP-01-21, 54 NRC at 92. This contention was based on CYAPCO allegedly not
employingthe latest version of the RESRAD code (a code developedby Argonne
National Laboratory to calculate site-specific residual radiation guidelines and
dosesto futureonsite hypotheticalindividuals),andonits employing‘‘manynon-
conservative assumptions,’’ including (1) choosing an ‘‘outdoors’’ value (for the
‘‘residentfarmer’’scenarioforunrestricteduseofthe site afterdecommissioning)
that is too low based upon how much time actual farmers are asserted to spend
outdoors,(2)assumingtheyearlyamountofwaterpersonsdrinkattoolowalevel,
and (3) not including children as the ‘‘average member of the critical group’’
under 10 C.F.R. §20.1402. During oral argument, CAN revised its position with
regard to children to claim only that children should be included in the averaging
to reach the total effective dose equivalent (TEDE) to the ‘‘average member of
the critical group.’’ Tr. 521-25.
We limitedouradmissionofthiscontentiontoexcludefromlitigationtheissue
of the different RESRAD versions, because CAN had not shown any genuine
dispute that there would be different results using the more recent version of
RESRAD. We admitted for litigation, however, the remainder of the contention,
includingCAN’sargumentthatchildrenshouldbeincludedintheaveragingofthe
TEDE to the average memberof the critical groupin the resident farmer scenario.
We recognized that the position of CYAPCO and the Staff was that CAN’s
argument concerning the inclusion of children in calculating the TEDE for the
‘‘average member of a critical group’’constituted a challenge to a regulation, but
found that this argument rested not on any language in a regulation but rather on
counsel’s reading of language in the Commission’s Statement of Considerations
(SOC) with regard to regulations relating to Radiological Criteria for License
Termination (including the regulation in question, section 20.1402).See 62 Fed.
Reg. 39,058,39,061 (July 21, 1997). We therefore left the matter open for further
argument and litigation, finding that CAN had provided sufficient alleged facts
and expert opinion to show a genuine dispute on material issues of fact.See
LBP-01-21, 54 NRC at 94.
180
POSITIONS OF PARTIES
CYAPCO
CYAPCO challenges our admission of Contention 6.1, stating that, in its
reference to children, the contention is ‘‘an unabashed attempt to rewrite the
Commission’s promulgated regulation.’’ CYAPCO Motion for Reconsideration
at 4. Disagreeing with CAN’s assertion at oral argument that new, previously
unavailable information relating to dose calculations for children warrants
consideration in arriving at the TEDE for the ‘‘average member of the critical
group,’’ CYAPCO asserts that the Commission’s use in the SOC of the singular
to refer to the ‘‘average member’’ being an ‘‘individual,’’ 62 Fed. Reg. 39,068,
as well as its reference,id.at 39,061, to an EPA Guidance Document,Radiation
Protection Draft Guidance for Exposure of the General Public,59 Fed. Reg.
66,414 (Dec. 23, 1994), in which the ‘‘reference man’’ concept is discussed,
indicates that it ‘‘specifically rejected the notion of computing averages of
population member parameters.’’ CYAPCO Motion for Reconsideration at 6.
CYAPCO goes on to argue that the Commission does not intend ‘‘site specific
‘averages’ to be a requirement,’’ apparently misunderstanding our ruling to find
sucharequirement.Id.at7. Further,incontrasttoitsearlierargumentthat‘‘NMSS
Decommissioning Standard Review Plan,’’ NUREG-1727 [hereinafter NUREG-
1727], relied upon by the Petitioners in support of various of their contentions, is
irrelevantin thiscase becauseit concernsthe decommissioningnotof reactorsbut
of materials facilities,see, e.g.,CYAPCO Response to CAN Contentions at 42
n.35, CYAPCO now itself relies on portions of the same document, asserting in a
telephonestatusconferencethat,forthepurposesforwhichitrefersustoNUREG-
1727,thepartsitcitesarerelevantinthiscaseandindeed‘‘oughttobereproduced
in [NUREG-]1700 [relating to reactor decommissioning].’’ Tr. 690. CYAPCO
continues,withsomeemphasisandagainapparentlymisunderstandingourruling,
to note that the Board has ‘‘no jurisdiction to decide that the Commission’s
existingregulationshouldbe abandoned.’’CYAPCO MotionforReconsideration
at 7. Finally, CYAPCO complains that, in admitting CAN Contention 6.1, the
Board has ‘‘left the parties with utterly no guidance as to what it means,’’ asking,
‘‘What, exactly, is the ‘genuine issue’ for the Board to resolve?’’ CYAPCO
argues that, for the preceding reasons and because the ‘‘children’’ aspect of
CAN Contention 6.1‘‘wouldresult in unacceptableimpedimentsto site release,’’
we should reconsider its admission, or certify our ruling to the Commission,
‘‘inasmuch as this ruling will fundamentally alter the nature of the proceedings
and invite extended, extensive and time-consuming litigation in an area entirely
devoid of any limiting principles or rules of decision.’’Id.at 8.
181
Staff
The Staff supports CYAPCO in its motion, agreeing with the characterization
of the portion of Contention 6.1 relating to the exclusion of children from the
averaging of the TEDE as constituting ‘‘an attack on a Commission rule,’’ and
relying on generally the same arguments and authorities as CYAPCO (including
NUREG-1727, ‘‘albeit a document concerned with decommissioning at non-
reactor sites’’). Staff Response at 3-8.
CAN
CAN responds to CYAPCO’s motion by, among other things, pointing out
that section 20.1402 contains no reference to the ‘‘reference man’’ relied upon
by CYAPCO, and that there are ‘‘no definitions in the regulations that set limits
on the kind of human beings that are part of the critical group.’’ CAN Response
at 3. Noting that, according to 10 C.F.R. §20.1003, ‘‘Critical Group means
the group of individuals reasonably expected to receive the greatest exposure
to residual radioactivity for any applicable set of circumstances,’’ CAN further
observes that the term ‘‘individual,’’ used in this definition, is itself defined as
‘‘any human being,’’ as distinguished from ‘‘a particular type of human being.’’
CAN Response at 3.
Withregardto theEPA’suseofthe‘‘referenceman,’’CAN pointsoutthatthis
use is not exclusive of other considerations including age, quoting a statement in
theSOC to theeffectthat ‘‘adetailedconsiderationofageandsex is not generally
necessary.’’ CAN Response at 7 (quoting from 59 Fed. Reg. at 66,423 (emphasis
added by CAN)). CAN argues that ‘‘post-decommissioning farming is not such
a ‘general’ case,’’ noting that decommissioning does not appear to be among
the listed applications for the EPA’s Federal Radiation Protection Guidance for
Exposure to the General Public (FRG), given that those listed are shorter-lived,
primarily limited to adults, and address exposure patterns that are different from
a decommissioning model. CAN Response at 7. CAN describes various facets of
resident farming that it asserts CYAPCO has not taken into account.Id.at 7-8.
CAN also points out that the SOC for the Rules on Radiological Criteria for
License Termination refers to other documents in addition to the EPA guidance
document, including ICRP 60 (a publication of the International Commission on
Radiological Protection); NCRP 116 (a publication of the National Council on
Radiation Protection and Measurements); the ‘‘preamble to issuance of 10 CFR
Part 20 on May 21, 1991(56 FR 23360)’’;and the National Academyof Sciences
(NAS) Technical Bases for Yucca Mountain Standards(1995), in which ‘‘critical
groups’’ are not limited so as to exclude children. CAN Response at 4 (citing 62
Fed. Reg. at 39,061).
182
CYAPCO Reply
CYAPCO in its Reply to CAN’s Response, which we permit and consider
in order to assure an appropriate and full evaluation of all relevant factors
raised with regard to CYAPCO’s motion, repeats its argument that Contention
6.1 constitutes a challenge to the regulation, and asserts that ‘‘the Commission
expressly rejected’’ the averaging approach argued by CAN. CYAPCO Reply to
CAN Response at 1. Further, CYAPCO asserts that ‘‘the differences that CAN
alleges exist in the approaches taken by the EPA, the ICRP, and the NSA [sic],
were notapparentto the Commission when it promulgated10 C.F.R. §20.1402,’’
and ‘‘the Commission viewed them as supportingthe non-averagingmethodology
that it promulgated in the site release criterion rule.’’Id.at 2-3 (emphasis added).
In addition, CYAPCO quotes pertinent language from the SOC (see below at
p. 185, and makes various other arguments essentially to the effect that section
20.1402 must, and can, be interpreted only in a manner consistent with its own
argument on the subject.
ANALYSIS
We note first that we agree that the Board has ‘‘no jurisdiction to decide that
the Commission’s existing regulation should be abandoned.’’ We find, however,
thattheissuewehavetodecideisbothnotsosimpleas, andatthesametimemuch
more straightforward than, CYAPCO’s characterization of it. The regulation in
question (with the portion at issue emphasized) states:
§20.1402 Radiological criteria for unrestricted use.
A site will be considered acceptable for unrestricted use if the residual radioactivity that
is distinguishable from background radiation results in a TEDE to an average member of
the critical group that does not exceed 25 mrem (0.25 mSv) per year, including that from
groundwater sources of drinking water, and that the residual radioactivity has been reduced
to levels that are as low as reasonably achievable (ALARA). Determination of the levels
which are ALARA must take into account consideration of any detriments, such as deaths
from transportation accidents, expected to potentially result from decontamination and waste
disposal.
The words, ‘‘critical group,’’ are defined in 10 C.F.R. §20.1003 as follows:
Critical Group means the group of individuals reasonably expected to receive the greatest
exposure to residual radioactivity for any applicable set of circumstances.
Also, from section 20.1003, ‘‘Individual means any human being.’’
The dispute at issue with regard to CYAPCO’s Motion for Reconsideration
has most specifically to do with the words, ‘‘average member,’’ from section
183
20.1402,which words are not definedin the rules. The partiesdiffer on how these
words should be interpreted. The issue, therefore, is one of the interpretation of
a rule, and not at all one of any ‘‘attack’’ on, or abandonment of, a rule, nor of
whether the rule should be followed, which, it should go without saying, it must
be.
The relevant question for purposes of CYAPCO’s motion would seem to be:
whether the words, ‘‘average member of the critical group,’’ can be interpreted
only as CYAPCO argues, to mean a single hypothetical individual whose
characteristics are defined in the same way the EPA’s ‘‘reference man’’ is
defined,and also to exclude any consideration of children in the definition
of such a hypothetical individual; or to the contrary mean a collection of
characteristics of a hypothetical ‘‘average member’’ arrived at by taking into
account, or ‘‘averaging,’’ the various characteristics of more than one member
of the critical group, including children. To resolve this question we look to the
words themselves, as well as to any additional indications of the Commission’s
intent as to their meaning.
As noted in LBP-01-21, in the absence of any specific definition in a rule,
we look first to the meaning of the language of the provision in question.See
LBP-01-21, 54 NRC at 59;Long Island Lighting Co.(Shoreham Nuclear Power
Station, Unit 1), ALAB-900, 28 NRC 275, 288 (1988),review declined,CLI-
88-11, 28 NRC 603 (1988). In this regard, the dictionary defines the word,
‘‘average,’’ as ‘‘equaling an arithmetic mean . . . , approximating or resembling
an arithmetic mean. . . .’’Webster’s Third New International Dictionary of the
English Language 150 (4th ed. 1976). Given the somewhat general nature of this
definition,wefinditappropriatetoseekfurtherguidanceindocumentsaddressing
the same subject matter addressed in section 20.1402, especially those to which
the Commission refers in its 1997 SOC relating to the rule.
Such guidance documents may assist in resolving any ambiguities in a
regulation’s language, even though they themselves do not carry the binding
effect of regulations or prescribe requirements, so that nonconformance with
them does not equate to noncompliance with regulations.See International
Uranium (USA) Corp.(Request for Materials License Amendment), CLI-00-1,
51 NRC 9, 19 (2000);see also Curators of the University of Missouri,CLI-95-1,
41 NRC 71, 98, 100 (1995). Despite this lack of binding effect, these documents
may be consulted in interpreting a regulation, provided they do not conflict with
the plain meaning of the wording used in the regulation.Shoreham,ALAB-900,
28 NRC at 288. As was recognized in the Shoreham case,
NUREG[s] and similar documents are akin to ‘‘regulatory guides.’’ That is, they
provide guidance for the Staff’s review, but set neither minimum nor maximum regulatory
requirements. . . . Where such guidance documents conflict or are inconsistent with a
regulation, the latter of course must prevail.On the other hand, guidance consistent with the
184
regulations and at least implicitly endorsed by the Commission is entitled to correspondingly
special weight.
Shoreham,ALAB-900, 28 NRC at 290 (citations omitted).
1997 Statement of Considerations
CYAPCO relies on language in the SOC to assert that the Commission
‘‘expressly rejected’’ the averaging approach argued by CAN. CYAPCO Reply
to CAN Response at 1. The language on which CYAPCO relies is that which
addresses the definition of the ‘‘critical group’’:
Section 20.1003 of the proposed rule defined the term ‘‘critical group’’ as the group of
individuals reasonably expected to receive the greatest exposure to residual radioactivity for
any applicable set of circumstances. For example, if a site were released for unrestricted
use, the critical group would be the group of individuals reasonably expected to be the most
highly exposed considering all reasonable potential future uses of the site. As noted in the
preamble to the proposed rule (at 59 FR 43218;August 22, 1994), NUREG/CR-5512 defines
the critical group as an individual or relatively homogeneous exposed group expected to
receive the highest exposure within the assumptions of a particular scenario and the dosimetric
methods of 10 CFR part 20. The average member of the critical group is an individual who
is assumed to represent the most likely exposure scenario based on prudently conservative
exposure assumptions and parameter values within model calculations.For example,the
critical group for the building occupancy scenario can be the group of regular employees
working in a building that has been decontaminated.If a site were converted to residential
use, the critical group could be persons whose occupations involve resident farming on the
site, not an average of all residents of the site.
62 Fed. Reg. at 39,067-68(emphasisadded). CYAPCO directsus to the reference
to‘‘an individual whoisassumedtorepresentthemostlikelyexposurescenario,’’
and characterizes this as the Commission’s mandated, specific definition of the
term, ‘‘average member,’’ in the actual regulation, which is argued to incorpo-
rate a methodology ‘‘based on the concept of using a ‘Reference Man.’’’Id.
at 4. CYAPCO also asserts that the final sentence of the paragraph ‘‘firmly
rejects CAN’s notion of computingaverages of populationmember parameters.’’
Id.at 2.
In LBP-01-21, we stated that we did notfind the languageof the final sentence
of the above-quoted language of the SOC — that ‘‘[i]f a site were converted to
residential use, the critical group could be persons whose occupations involve
resident farming at the site, not an average of all residents on the site’’ — to be
so unequivocal as CYAPCO argued it to be, and left the matter open for further
argument and litigation. LBP-01-21, 54 NRC at 94. In light of CYAPCO’s
arguments in support of its motion, and in order to provide some guidance to the
185
parties in further proceedings in this matter, we find it appropriate at this point to
address this subject more thoroughly.
Webeginbyobservingthattheuseoftheword,‘‘could,’’intheSOC,italicized
in the preceding paragraph, might be interpreted to indicate either that the only
way the actual definition of ‘‘critical group’’ in section 20.1003 (see above at
p. 183) may permissibly or can possibly be implemented in a residential use
scenario is as ‘‘persons whose occupations involve resident farming at the site’’;
or that this is one example of a possible ‘‘critical group.’’ The SOC’s use
of the words, ‘‘[f]or example,’’ in the sentence that immediately precedes the
sentence referring to ‘‘residential use,’’ suggests that the latter interpretation is
more reasonable, as it fits within a context of providing examples rather than
mandating a single model.
With regard to the words, ‘‘not an average of all residents on the site,’’ in
the SOC, this phrase might be interpreted as a prohibition against averaging any
of the residents on the site in determining what sorts of persons constitute the
appropriate ‘‘critical group’’ or, as CYAPCO and Staff have in effect argued,
in defining the ‘‘average member’’ of such a critical group. On the other hand,
the phrase, ‘‘not an average of all residents on the site,’’ might be interpreted as
stating that it would be inappropriateto average all residents on a site, because all
oftheresidentsmightnotberepresentativeofthe‘‘criticalgroup’’of‘‘individuals
reasonablyexpectedto receivethe greatestexposureto residualradioactivity’’for
the circumstances involved in residential use; but that this would not prohibit the
averaging of characteristics of some of the residents — namely, those residents
who are ‘‘individuals reasonably expected to receive the greatest exposure’’ and
would therefore reasonably be members of the ‘‘critical group’’ — to arrive at
the characteristics of the ‘‘average member’’ of the critical group, ‘‘an individual
who [would] represent the most likely exposure scenario based on prudently
conservative exposure assumptions,’’ in the words of the SOC.
Thus, the word, ‘‘individual,’’ does not appear to exclude the use of an aver-
aging approach. The following paragraph from the SOC, which appears immedi-
ately after the paragraph quoted above, and in which the plural ‘‘individuals’’ is
used, would also seem to allow for the approach argued by CAN:
Althoughtheterms‘‘criticalgroup’’and‘‘averagemember’’arenewtermsinNRCregulations,
they are consistent with ICRP practice of defining and using a critical group when assessing
individual public dose from low levels of radioactivity similar to those expected from a
decommissioned site. ICRP recommends that such analyses should consider exposure to
individuals representative of those expected to receive the highest dose using cautious but
reasonable assumptions. This approach has been adopted in the proposed FRG [EPA Guidance
Document] and is also consistent with the recommendations of the National Academy of
Sciences [NAS] on the Yucca Mountain Standards (August 1995).
62 Fed. Reg. 39,068 (emphasis added).
186
1995 Technical Bases for Yucca Mountain Standards
We find that the following selection from the 1995 Technical Bases for Yucca
Mountain Standards,part of which CAN relies upon in its argument, provides a
helpful introduction to the principles underlying the terms, ‘‘critical group’’ and
‘‘average member of the critical group,’’ and is particularly relevant in view of
the Commission’sreferenceto it in the SOC. We have emphasizedportionsof the
selection, which, taken together in light of the whole, suggest that the ‘‘average
member of the critical group’’ concept envisions some averaging calculations
occurring, as argued by CAN. We quote at some length from this document in
order to make the context clear:
Who Is Protected?
To determine whether a repository [or, as in the instant case, a site being decommissioned]
complies with the standards, it is necessary to calculate the risk to some individual or
group of individuals and then to compare that number with the risk limit established in the
standard. Therefore, the standard must specify the individual or individuals for whom the risk
calculations are to be made. The issue is how to define who is to be protected among the
persons having the highest risk of health effects due to releases from a repository [or site],
since by definition all other persons face a lower risk.
The choice ofthose to be protected can obviouslyhave a significant effect on the calculated
risk and, therefore, on whether the calculated performance meets the standard. For example,
some groups of persons are particularly sensitive to exposure due to factors such as pregnancy,
age, or existing health problems. Similarly, it is possible to construct scenarios in which an
individual could receive a very high dose of radiation, even though only one or two people
might ever receive such doses.
There is an obviously sensitive issue involved here, since the definition of the person or
persons to be protected directly affects the outcome of the risk calculation. Although not a
purely scientific issue, we believe that a reasonable and practicable objective is to protect the
vastmajority ofmembers ofthe public while also ensuring that thedecision onthe acceptability
of a repository [or site] is not prejudiced by the risks imposed on a very small number of
individuals with unusual habits or sensitivities.The situation to be avoided, therefore, is an
extreme case defined by unreasonable assumptions regarding the factors affecting dose and
risk, while meeting the objectives of protecting the vast majority of the public. An approach
consistent with this objective that is used extensively elsewhere in the world is to define and
protect a critical group;werecommendthisapproach....
The critical group has been defined by the ICRP . . . as a relatively homogeneous group
of people whose location and habits are such that they are representative of those individuals
expected to receive the highest doses as a result of the discharges of radionuclides. Therefore,
as the ICRP notes, ‘‘because the actual doses in the entire population will constitute a
distribution for which the critical group represents the extreme, this procedure is intended to
ensure that no individual doses are unacceptably high. . . .’’
The critical-group dose is defined as that dose received by an average member of the
critical group. Using the average member of the group as the basis for comparison with the
limit established by the standard avoids the problem of the outcome being unduly influenced
by the habits of a few persons. To ensure that this calculation is nevertheless representative of
the persons who receive the highest doses, the ICRP definition of the critical group requires
that:
187
1. The persons calculated to receive the highest doses based on cautious, but reasonable,
assumptions be included in the group.
2. Thegroup be homogeneous in dose; that is, there should be arelatively small difference
between those receiving the highest and lowest doses in the group. . . . Inits Publication
43, the ICRP . . . suggests that if the ratio of the calculated average critical-group
dose to the regulatory limit is less than one-tenth, then the critical group should be
considered homogeneous if the distribution of individual doses lies substantially within
a total range of a factor of ten, or a factor of three on either side of the average.At
ratios smaller than one-tenth, homogeneity requires a smaller range.
3. The group be relatively small. The ICRP recommends that it should typically include
a few to a few tens of persons. Normally a critical group would not consist of a single
individual but rather a few tens of individuals. On the other hand, homogeneity implies
that the group should not be too large.
In the context of an individual-risk standard, similar conditions would apply for the same
reasons. Based on cautious, but reasonable assumptions, the group would include the persons
expected to be at highest risk, would be homogeneous in risk, and would be relatively small.
The critical-group risk calculated for purposes of comparison with the risk limit established in
the standard would be the mean of the risks of the members of the group.
TechnicalBasesforYuccaMountainStandards(1995),at51-53(emphasisadded;
citations omitted).
ICRP Publications 60 and 43
The SOC also contains the following references:
In addition, the NRC evaluated the proposed Federal Radiation Protection Guidance for
Exposure of the General Public (FRG) as published for comment on December 23, 1994 (59
FR 66414), in which the EPA, under its charter,made recommendations to the President of
the United States concerning recommended practices for protection of the public and workers
from exposure to radiation.
Recent recommendations contained in ICRP 60, NCRP No. 116, and the proposed FRG are
essentially similar. Use of these sources for formulating basic radiation protection standards is
consistent with NRC’s general approach regarding risk decisions and is noted in the preamble
to issuance of 10 CFR part 20 on May 21, 1991. (56 FR 23360). The NRC considers it
reasonable and appropriate to use the findings of these bodies in developing criteria for license
termination to apply to its licensees.
62 Fed. Reg. at 39,061.
CAN has referred us to section 5.5.1 of ICRP 60, which states:
In practice, almost all public exposure is controlled by the procedures of constrained
optimisation and the use of prescriptive limits. It is often convenient to class together
individuals who form a homogeneous group with respect to their exposures to a single source.
When such a group is typical of those most highly exposed by that source, it is known as a
critical group.The dose constraint should be applied to the mean dose in the critical group
from the source for which the protection is being optimised. . . .
188
ICRP Publication 60,1990 Recommendation of the International Commission
on Radiological Protection §5.5.1 at 44 (1990) [hereinafter ICRP 60] (emphasis
added);see also id.¶S38 at 74. On the subject of ‘‘the selection of critical
groups,’’ICRP 60 refers the reader at section 7.5.3 to ICRP Publication 43. ICRP
60 at 62.
ICRP 43 contains the following language relating to both ‘‘mean dose
equivalent’’ and to taking account of characteristics of children:
The Commission believes that it will be reasonable to apply the appropriate dose-equivalent
limit for individual members of the public to the mean dose equivalent in the critical group.It
is recognized that, because of the innate variability within an apparently homogeneous group,
some members of the critical group will in fact receive dose equivalents somewhat higher
than the mean. However, because of the maximizing assumptions normally used, the dose
equivalent actually received will usually be lower than the estimated dose equivalent. The
critical group is discussed further in Section 8.
....
‘‘(127)In the calculation of the dose equivalent incurred by members of the public from
intake of radionuclides,account must be taken of differences in organ size of metabolic
characteristics of children....’’
ICRP Publication 43,PrinciplesofMonitoringfor the RadiationProtectionofthe
Population at 4 (1984) (emphasis added).
1
Section 8 of ICRP 43, referenced in the previous quotation from the same
document, states in relevant part the following:
67. One of the major aspects in the choice [of the critical group] is the size of the
critical group. It is clearly stated by the Commission (see Section 3) that the dose-equivalent
limits are intended to apply to mean dose equivalent in a reasonably homogeneous group.
In an extreme case it may be convenient to define the critical group in terms of a single
hypothetical individual, for example when dealing with conditions well in the future which
cannot be characterized in detail. Usually, however, the critical group would not consist of one
individual nor would it be very large for then homogeneity would be lost. The size of a critical
group will usually be up to a few tens of persons. In a few cases, where large populations
are uniformly exposed, the critical group may be much larger. This guidance on size has
certain implications: for example, in habit surveys it is not necessary to search for the most
exposed individual within a critical group in order to base controls on that one person. The
results of a habit survey at a particular point in time should be regarded as an indicator of an
underlying distribution and the value adopted for the mean should not be unduly influenced
by the discovery of one or two individuals with extreme habits.
1 We note that, in the paragraph from page 4 of ICRP Publication 43 that begins with ‘‘(127) . . . ,’’ the ICRP
is referring to and quoting from its recommendation 127 from ICRP Publication 26,Recommendations of the
International Commission on Radiological Protection (1977), which publication contains revisions of the ICRP’s
previous report, Publication 7,Principles of Environmental Monitoring Related to the Handling of Radioactive
Materials (1966). In the introduction to Publication 43, the ICRP explains the changes from the recommendations
found in Publication 7 that resulted in the recommendations in Publication 26.Id.at 1, 19 nn.1-2.
189
68. In calculating dose equivalents to critical groups it is important to select appropriate
mean values for factors such as food consumption rates or occupancy parameters. However,
metabolic parameters should be chosen to be typical of the age-group (foetal, infant, child or
adult) in the normal population rather than extreme values.
69. It is obvious from the definition that some individuals will receive dose equivalents
in excess of the calculated mean dose equivalent.Decisions as to the acceptability of the
exposure of the critical group will depend not only on the proximity of the calculated mean
dose equivalent to the dose-equivalent limit but also onthe expected spread of the distribution
of actual dose equivalents....
Id.at 15-16 (emphasis added).
Portions of the above references have been emphasized to illustrate that, like
the 1995 Technical Bases for Yucca Mountain Standards,the ICRP documents
implicitly contemplate that from the critical group,a calculation of an average or
mean is performed to arrive at a ‘‘mean dose’’ that would apply to a hypothetical
individual, or ‘‘average member of the critical group,’’ which would both
represent ‘‘the group of individuals reasonably expected to be the most highly
exposed considering all reasonable potential future uses of the site,’’see 62 Fed.
Reg. 39,068, and not be ‘‘unduly influenced by . . . the discovery of individuals
with extreme habits,’’see ICRP 43 at 15. In addition, portions in which the ICRP
recommendsincluding, in some way or ways,consideration of the characteristics
of children in arriving at the final ‘‘calculated mean dose equivalent,’’ have been
emphasized.Id.at 4.
EPA Guidance Document
The EPA’s 1994 Guidance Document that is referred to in the SOC at 62 Fed.
Reg. 39,061 as being ‘‘essentially similar’’ to ICRP 60 and NCRP 116,
2 and
discusses the ‘‘Reference Man’’ concept argued by CYAPCO to be the standard
for interpreting the term ‘‘average member of the critical group’’ in 10 C.F.R.
§20.1402, provides in relevant part as follows:
These dose conversion factors are appropriate for application to any population adequately
characterized by the set of values for physiological parameters developed by the [ICRP] and
collectively known as ‘‘Reference Man’’ [Here the EPA document itself cites, in a footnote,
‘‘ICRP No. 23,Report of the Task Group on Reference Man (1974).’’] The actual dose to
2 We find no reference to ‘‘critical groups,’’ ‘‘average members’’ thereof, or ‘‘Reference Man’’ in NCRP 116,
nor has CYAPCO or CAN referred us to it. We therefore do not quote extensively from it in this Memorandum
and Order. We note, however, the following statement from the Introduction to NCRP 116: ‘‘The recommendations
and concepts provided in ICRP Publication 60 ...havebeencarefullyreviewedandintheinterestofauniform
international approach to radiation protection have, in general, been incorporated in this Report. Deviation from
their recommendations was deemed necessary in a few cases where greater flexibility could be obtained at similar or
less risk (e.g.,the occupational dose limits) or where increased protection was considered to be warranted (e.g., a
monthly exposure limit for the embryo-fetus).’’ NCRP Report No. 116,Limitation of Exposure to Ionizing Radiation
at 2 (1993) (emphasis added). Thus, NCRP 116 would appear to support CAN’s arguments.
190
a particular individual from a given intake is dependent upon age and sex, as well as other
characteristics. As noted earlier, implementing limits for the general public expressed as age
and sex dependent quantities would be difficult. (Clearly, it would be impracticable to conduct
an annual survey of age and sex at every location of a potential source of public exposure.)
More importantly, the variability in dose due to these factors is comparable in magnitude to
the uncertainty in our estimates of the risks which provide the basis for our choice of the
RPG [Radiation Protection Guide]. For this reason EPA believes that, for the purpose of
providing radiation protection under the conditions addressed by these recommendations, the
assumptions exemplified by Reference Man adequately characterize the general public, and a
detailed consideration of age and sex is not generally necessary.
59 Fed. Reg. at 66,423 (emphasis added). CYAPCO argues that this language
mandates use of the ‘‘reference man’’ and exclusion of any consideration of
children in determining the TEDE for the ‘‘average member of the critical
group.’’ CAN on the other hand, as indicated above, highlights the use of
the word, ‘‘generally,’’ at the end of the quoted material, as indicating that
consideration of age is appropriate in some circumstances.
ICRP 23
Given the EPA document’s citation of ICRP Publication 23 as the basis for its
use of the ‘‘reference man’’ concept, it is helpfulto look to ICRP 23 for guidance
on this concept. The following selections from the Introduction to ICRP 23 (with
languageof particular relevanceto ourinquiryherein italicized) serve to illustrate
the ICRP’s basic approach to this concept in 1974, as well as its acknowledged
limitations:
1. GENERAL PURPOSES FOR THE REFERENCE MAN
Estimation of radiation dose to the human body, whether from external or internal sources,
requires a certain amount of data about the exposed individual. In the case of external sources,
fairly simple specifications of mass, dimensions, and elemental composition of the organs and
tissues concerned are largely sufficient for most situations. However, in order to calculate
maximum permissible annual intakes (MPAI) and related secondary standards for radioactive
substances,aswellasforestimationofdoseduetoaspecifiedintake, ...itisnecessary
to have much more biological information concerning the individual potentially or actually
exposed. . . . Finally,in assessing the exposure of a population, the age dependence of such
factors is also necessary.
Although individuals vary considerably in such respects, it is important to have a well-
defined reference individual for estimation of radiation dose. Such a reference individual is
convenient for routine cases of estimation of dose when the levels are sufficiently low that
individual differences may be ignored. . . .
....
3. PURPOSE OF THE PRESENT REPORT
. . . In particular, it is desired to define Reference Man, in the first instance, as a
typical occupational individual, and it is important that some indication of variability of the
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occupational group about this norm be indicated.In addition, differences due to age, sex, or
habits should be indicated where possible with particular emphasis on fetuses, infants, and
children.
....
....HoweverimportantordesirableitmaybetohaveaReferenceManembodying all
known characteristics of man, the task of defining such a Reference Man is clearly beyond the
scope of the present effort. Thus many known characteristics of man have received little or no
attention on the part of the Task Group, because they were not known to be or considered to
be closely related to estimation of radiation dose. . . .
....ReferenceManisdefinedasbeingbetween20-30yearsofage,weighing70kg,is
170 cm in height, and lives in a climate with an average temperature of from 10°to 20°C. He
is a Caucasian and is a Western European or North American in habitat and custom.
(c) The Task Group agreed that it was not feasible to define Reference Man as an
‘‘average’’ or ‘‘median’’ individual of a specified population group and that it was not
necessary that he be defined in any such precise statistical sense.The available data certainly
do not represent a random sample of any specified population. Whether the sample is truly
representative of a particular population group remains largely a matter of judgment which
cannot be supported on the basis of statistical tests of the data since the sampling procedure is
suspect. . . .
....
7. SUMMARY
The Task Group realizes that Reference Man as defined here is capable of extensive
improvements. Certainly,the Group has not examined all the data that are available in
the literature, and still less can it claim to have found the best data available from various
specialists and agencies.. . . The Task Group expects that discrepancies, inadequacies, and
errors will be found. It hopes that Reference Man as defined here will be found to be as useful
in meeting the needs of the health physicist now [October 1974] as was the Standard Man
of 15 years ago. It is expected that the concept will need revision and, perhaps, extension in
the future. The members of the Task Group will appreciate the comments or criticism of all
who use the report and who see a means of improving the model either by making it more
consistent or more useful.
ICRP Publication 23,Report of the Task Group on Reference Man at 1-7 (1974)
(emphasis added).
Discussion of Guidance Documents Referred to in SOC
As we consider the guidance to be found in the above documents — all
‘‘implicitly endorsed’’ by the Commission in the SOC for the 1997 rules on
Radiological Criteria for License Termination,see Shoreham,ALAB-900, 28
NRC at 290, or referenced in documents specifically referred to in the SOC
— we observe that there appear some commonalities and some variations in
the approaches taken in the various documents. The most obvious variation is
between aspects of the ‘‘average member of the critical group’’ concept and the
‘‘referenceman’’conceptasdiscussedbytheICRP. Primarily,in1974,according
to ICRP 23, it was ‘‘not feasible to define Reference Man as an ‘average’ or
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‘median’ individual,’’ as was later envisioned for the ‘‘average member of the
critical group,’’in 1984 in Publication 43, and in 1990 in Publication 60. Second,
as the previous sentence illustrates, and as also illustrated in the last quoted
paragraphfrom ICRP 23 as well as in the approachof Publication43 as discussed
in note 1, changes in approach occurred in the ICRP publications over time.
An explanation for such changes over time was provided by the ICRP
in Publication 43, where it stated that, ‘‘although many of the previous
recommendations [were] still relevant [at that time], it was felt necessary
to reassess the general principles on which monitoring programs should be
based, to make the recommendations consistent with current radiation protection
philosophy . . . .’’ ICRP 43 at 1. Such an approach is consistent with the general
scientific approach, in which new knowledge brings about changes in philosophy
and improvementsin practice. Thus, althoughthe 1994EPA GuidanceDocument
relies on the 1974 ICRP Publication 23 with regard to the ‘‘Reference Man,’’ it
does not appear to mandate its use as described in 1974, and notes, in stating that
‘‘a detailed consideration of age and sex is not generally necessary,’’ 59 Fed.
Reg. at 66,423, that there may be exceptions to the general view that, ‘‘for the
purposeof providingradiationprotection underthe conditionsaddressed by these
recommendations, the assumptions exemplified by Reference Man adequately
characterize the general public.’’Id.We recognize, as CYAPCO points out, that
the EPA refersto ‘‘[t]hemost obviousexception[to the use of the Reference Man
as being] for large doses delivered in a short period of time,’’id.,but do not find
that this precludes there being other exceptions.
The allowance in the EPA document for such exceptions, taken together
with the statements in ICRP Publication 23 that, ‘‘in assessing the exposure of
a population, the age dependence of such factors is also necessary,’’ and that
‘‘differences due to age, sex, or habits should be indicated where possible with
particular emphasis on fetuses, infants, and children,’’ ICRP 23 at 1, 3, indicate
that the Reference Man concept is not as narrowly defined as CYAPCO would
argue. We also note the authors’ statements in Publication 23 that, while it was
not then feasible to define ‘‘Reference Man’’ as an ‘‘average’’ of a specified
populationgroup,they ‘‘ha[d]notexaminedall the datathat [werethen]available
in the literature, [nor] found the best data available from various specialists and
agencies.’’Id.at 7.
We note further that the Commission, in the section of the SOC in which
the ‘‘Average Member of the Critical Group’’ is discussed, refers to the EPA
FRG Guidance Documentonly by noting that the ICRP practice of ‘‘definingand
using a critical group’’ and ‘‘recommend[ing]that such analyses should consider
exposure to individuals representative of those expected to receive the highest
dose using cautious but reasonable assumptions,’’ is consistent with the EPA
document, and with the Yucca Mountain Standards. 62 Fed. Reg. at 39,067-68.
We do not assume, as CYAPCO would have us do, that any differences in the
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various documents ‘‘were not apparent to the Commission when it promulgated
10 C.F.R. §20.1402.’’ Rather, we assume that the Commission, in discussing
the desirability of considering exposure to ‘‘individuals representative of those
expected to receive the highest dose using cautious but reasonable assumptions,’’
intended that the general approach of the various documents in this regard was
to be followed. Finally, we find noteworthy that the Commission, in choosing
which wordsto use in the actual rule, chose the newer termsused in the Technical
Bases for Yucca Mountain Standards and the more recent ICRP documents, i.e.,
‘‘critical group’’ and ‘‘average member of the critical group,’’ rather than the
older term, ‘‘Reference Man.’’
NUREG-1727
On the other hand, as noted by CYAPCO, NUREG-1727, written in response
to a July 1998 Commission directive to the Staff to ‘‘develop a Standard Review
Plan(SRP)thatincorporatesarisk-informed,iterativeapproachandprovidesclear
guidanceon complyingwith the As Low As is Reasonably Achievableprovisions
in the final License Termination Rule,’’ NUREG-1727 at iii, does contain the
statement, ‘‘the average member of a critical group should be assumed to be an
adult, with the proper habits and characteristics of an adult.’’ NUREG-1727 at
5.5. To place this quotation in context, we note the following selections from the
Introduction to NUREG-1727:
General Approach for Dose Modeling
. . . To perform dose modeling, the licensee will need to use the site information on
residual radioactivity expected to be present at the completion of decommissioning, to develop
a generalized view of the site’s source term. In developing the source term model, the licensee
needs to consider the site measurements, the intended remedial actions, and the needs of the
conceptual model.
....
After a source term model has been developed, the question becomes: ‘‘How could humans
be exposed either directly or indirectly to residual radioactivity?’’ or ‘‘What is the appropriate
exposure scenario?’’ Each exposure scenario must address the following questions:
(1) How does the residual radioactivity move through the environment?
(2) Where can humans be exposed to the environmental concentrations?
(3) What are the exposure group’s habits that will determine exposure? (e.g., what do
they eat and where does it come from? How much? Where do they get water and
how much? How much time do they spend on various activities? etc.)
In most situations, there are numerous possible scenarios of how future human exposure
groups could interact with residual radioactivity. The compliance criteria in 10 CFR Part 20
for decommissioning does not require an investigation of all (or many) possible scenarios; its
focus is on the dose to members of the critical group. The critical group is defined (at 10 CFR
20.1003) as ‘‘the group of individuals reasonably expected to receive the greatest exposure to
residual radioactivity for any applicable set of circumstances.’’
....
194
As required under 10 CFR 20.1302(b),expected doses are evaluated for the average member
of the critical group,which is not necessarily the same as the maximally exposed individual.
This is not a reduction in the level of protection provided to the public, but an attempt to
emphasize the uncertainty and assumptions needed in calculating potential future doses, while
limiting boundless speculation on possible future exposure scenarios. While it is possible to
actually identify with confidence the most exposed member of the public in some operational
situations (through monitoring, time-studies, distance from the facility, etc.), identification
of the specific individual who will receive the highest dose some time (up to 1000) years in
the future is impractical, if not impossible. Speculation on his or her habits, characteristics,
age, or metabolism could be endless.The use of the ‘‘average member of the critical group
acknowledges that any hypothetical ‘‘individual’’ used in the performance assessment is
based, in some manner, on the statistical results from data sets (e.g., the breathing rate is
based on the range of possible breathing rates) gathered from groups of individuals.While
bounding assumptions could be used to select values for each of the parameters (i.e., the
maximum amount of meat, milk, vegetables, possible exposure time, etc.), the result could be
an extremely conservative calculation of an unrealistic scenario and may lead to excessively
low allowable residual radioactivity levels.
Calculating the dose to the critical group is intended to bound the individual dose to other
possible exposure groups because the critical group is a relatively small group of individuals,
due to their habits, actions, and characteristics, who could receive among the highest potential
dose at some time in the future. By using the hypothetical critical group as the dose receptor,
coupled with prudently conservative models, it is highly unlikely that any individual would
actually receive doses in excess of that calculated for the average member of the critical group.
The description of the critical group’s habits, actions, and characteristics should be based
on credible assumptions and the information or data ranges used to support the assumptions
shouldbelimited inscope toreduce thepossibility ofadding members ofless exposed groups to
the critical group.An analysis of the average member of the critical group’s potential exposure
should also include, in most cases, some evaluation of the uncertainty in the parameter values
used to represent physical properties of the environment.
When calculating for compliance with the requirements of Subpart E of Part 20, the
intake-to-dose conversion factors used to calculate internal exposures can be found in Federal
Guidance Report No. 11, which arebased primarily on adults.As stated in the [EPA] ‘‘Federal
Radiation Protection Draft Guidance for Exposure of the General public,’’ . . .
[At this point, the selection quoted above at 17, from the EPA Guidance Document, is quoted
in NUREG-1727.]
Since age-based dose conversion factors are not being used, all individuals are assumed to
have the same dose conversion factors. Because of this, only in very rare scenarios (generally,
single exposure pathway scenarios) will a non-adult individual intake more radionuclides . . .
than an adult in a similar exposure scenario....inmostsituations,especiallyonesinvolving
multiple pathways, the total intake of the adult is greater than that of a child. Therefore, the
average member of the critical group should be assumed to be an adult, with the proper habits
and characteristics of an adult.
By integrating the exposure scenario, source term, and knowledge about the applicable
environmental transport routes involved in the exposure pathways, a conceptual model of the
features and processes at the site can be created. . . .
NUREG-1727 at 5.2-5.5 (emphasis added).
With the possible exception of the sentence, ‘‘Therefore, the average member
of the critical group should be assumed to be an adult, with the proper habits
195
and characteristics of an adult,’’ we do not find NUREG-1727 to be inconsistent
with the approach of the other documents quoted above, all of which were either
directly or indirectly referred to by the Commission in its SOC. We observe that
this sentence, in its use of the word, ‘‘should,’’ratherthan the mandatory‘‘shall’’
or ‘‘must,’’ may also be construed to be consistent with these documents, in
allowing for exceptions to the general rule, in the same way the EPA Guidance
Document allows for such exceptions. Under Shoreham,to the degree NUREG-
1727 is inconsistent with the regulation, ‘‘the latter of course must prevail.’’
Shoreham,ALAB-900, 28 NRC at 290. Thus, as we note above, what is at issue
hereinistheinterpretationoftherule,onwhichbothpartieshaveofferedextensive
arguments, especially CYAPCO, whose Reply to CAN we have permitted and
fully considered.
Conclusion
InitsSOC,theCommissionnotesthattheterms‘‘criticalgroup’’and‘‘average
member’’were‘‘newterms’’thatwere‘‘consistentwithICRPpracticeofdefining
and using a critical group when assessing individual public dose from low levels
of radioactivity similar to those expected from a decommissioned site.’’ 62 Fed.
Reg. at 39,068. The Commission goes on to observe that the ICRP ‘‘recommends
that such analyses should consider exposureto individualsrepresentativeof those
expected to receive the highest dose using cautious but reasonable assumptions,’’
and that this is the approach adopted by the EPA and is also consistent with the
YuccaMountainStandardsdocument.Id.NUREG-1727hadnotyetbeenwritten.
With the possible exception of the one sentence noted above from NUREG-1727
and relied on by CYAPCO, all of the documents quoted and discussed above
either allow for or recommend that averaging calculations, or calculation of an
‘‘arithmeticmean,’’beperformedtodeterminethecharacteristicsofthe‘‘average
member of the critical group,’’ and that the characteristics of children be taken
into accountin performingsuchcalculations, whenappropriate. And, as indicated
above,theCommissionchosetouseinsection20.1402theterms‘‘criticalgroup’’
and ‘‘average member of the critical group,’’ rather than ‘‘Reference Man.’’
In view of the Commission’s use of these terms in section 20.1402, as well
as its implicit endorsement in the SOC of the more recent ICRP approach in
using and defining these terms — which approach is not inconsistent with any
of the other documents referenced or statements made in the SOC and includes
recommendationsbothwithregardtothecalculationsofaveragesandtothetaking
intoaccountofcharacteristicsofchildren(recommendationsonthelatterofwhich
are found even in its earlier Publication 23, the origin of the ‘‘Reference Man’’
concept) — we find it would be reasonable to conclude that the Commission,
in using the term, ‘‘average member,’’ in section 20.1402, intended that it be
196
interpretedin a mannerconsistent with these morerecent recommendationsofthe
ICRP.
We observethatthe issue in question hereinhas apparentlybeen one involving
some level of ambiguity, uncertainty, and lack of clarity. The position taken
by the Staff in this proceeding, for example, is inconsistent with that taken
through its counsel in another proceeding involving a license termination of a
reactor, to the effect that the calculations of the ‘‘average member of the critical
group’’would include ‘‘women and children.’’See Yankee Atomic Electric
Co.(Yankee Nuclear Power Station), Docket No. 50-029-LA-R, ASLBP No.
98-736-01-LA-R, Transcript of Prehearing Conference (Jan. 27, 1999) at 220,
222. This lack of clarity might warrant certification to the Commission, were it
not for the Commission’sstrong indicationsof intent, as discussed above,leading
to our preliminary conclusion that the term ‘‘average member’’ be interpreted
consistent with the more recent statements of the ICRP regarding the term. In
these circumstances, we do not find it appropriate to press this issue upon the
Commission at this time on an interlocutory basis. Nor do we find the matter at
issue herein either to ‘‘fundamentally alter the nature of the proceedings’’ or to
be ‘‘devoidof any limiting principles or rules of decision,’’CYAPCO Motion for
Reconsideration at 8, as CYAPCO asserts it to be.
Despite the lack of clarity illustrated above, the various documents that are
liberally quoted from herein appear to provide such principles in abundance,
which are appropriate for the parties to rely on, consistently with the meaning
of section 20.1402 and related rules. The ‘‘genuine issue’’ that we have to
decide with regard to CAN Contention 6.1, which we find CAN has adequately
supported, including in its argument relating to the inclusion of children in the
calculation of the TEDE to the ‘‘average member of the critical group,’’ and
which the parties shall address in their presentation of evidence, is:
What are the appropriate factors and considerations relating to the ‘‘outdoors value,’’ yearly
intake of water by residents, and the nature of and extent to which the characteristics of
children must be taken into account in calculating the TEDE to the ‘‘average member of
the critical group’’ in the ‘‘resident farmer scenario,’’ for purposes of the Haddam Neck site
License Termination Plan, in order that the LTP can ‘‘demonstrate[ ] that the remainder of
decommissioning activities . . . will not be inimical . . . to the health and safety of the public,’’
as required by 10 C.F.R. §50.82(a)(10)?
This statement of the issue for decision incorporates all of the bases CAN has
asserted for Contention 6.1 that we have admitted, including that relating to the
inclusion of children in the calculation of the TEDE. CAN has submitted the
statement of Dr. Resnikoff, providing a summary of how he would approach
calculating the dose to the ‘‘average member of the critical group,’’ and we
expect that CYAPCO’s experts will present their own approach, along with their
arguments on why the inclusion of children in the averaging calculations is not
197
appropriate as a factual matter with regard to the circumstances relating to the
Haddam Neck plant site. We do not expect that the litigation of this issue should
be particularly time-consuming, if the parties and their experts are well prepared
topresenttheirevidenceina concisemanner,directedtotheissue asstated above.
ORDER
Forthereasonsstatedabove,we deny CYAPCO’sMotionforReconsideration.
Given that the legal issue of the proper interpretation of the words, ‘‘average
member,’’ as used in 10 C.F.R. §20.1402, has not, prior to issuance of this
Memorandumand Order, been explicitly so defined as done herein, if either party
wishes to file a further motion regarding this issue, the party shall file such a
motion no later than October 16, 2001.Thereafter, at or after the prehearing
status conference scheduled for October 17, 2001, the Board shall set dates for
responses to motions or the beginning of discovery on CAN Contention 6.1, as
appropriate.
It is so ORDERED.
THE ATOMIC SAFETY AND
LICENSING BOARD
3
Ann Marshall Young, Chair
ADMINISTRATIVE JUDGE
Dr. Peter S. Lam
ADMINISTRATIVE JUDGE
Thomas D. Murphy
ADMINISTRATIVE JUDGE
Rockville, Maryland
September 17, 2001
3 CopiesofthisOrderweresentthisdatebyInternet e-mailorfacsimiletransmission,ifavailable,toallparticipants
or counsel for participants.
198
Cite as 54 NRC 199 (2001)LBP-01-26
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
G. Paul Bollwerk, III,Chairman
Dr. Jerry R. Kline
Dr. Peter S. Lam
In the Matter of Docket No. 72-22-ISFSI
(ASLBP No. 97-732-02-ISFSI)
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) September 20, 2001
In this proceeding concerning the application of Private Fuel Storage, L.L.C.
(PFS), under 10 C.F.R. Part 72 to construct and operate an independentspent fuel
storage installation (ISFSI), acting pursuant to 10 C.F.R. §2.749, the Licensing
Board grants a PFS request for summary disposition in its favor regarding
contention Utah AA, Range of Alternatives, finding that the discussion in the
NRC Staff’s June 2000 draft environmental impact statement (DEIS) regarding
the range of reasonable siting alternatives for the proposed PFS facility moots
this contention asserting that such a discussion was missing from the PFS
environmentalreport (ER).
RULES OF PRACTICE: SUMMARY DISPOSITION (BURDEN OF
PERSUASION; BURDEN OF PROOF)
Under 10 C.F.R. §2.749(a), (d) summary disposition may be entered with
respect to any matter (or all of the matters) in a proceeding if the motion, along
with anyappropriatesupportingmaterial, showsthatthere is‘‘nogenuineissue as
to any material fact and that the moving party is entitled to a decision as a matter
199
of law.’’ The movantbears the initial burdenof makingthe requisite showingthat
there is no genuine issue as to any material fact, which it attempts to do by means
of a required statement of material facts not at issue and any supporting materials
(including affidavits, discovery responses, and documents) that accompany its
dispositive motion. An opposing party must counter each adequately supported
material fact with its own statement of material facts in dispute and supporting
materials, or the movant’s facts will be deemed admitted.See Advanced Medical
Systems, Inc.(One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98,
102-03 (1993).
RULES OF PRACTICE: CONTENTIONS (MODES OF
FORMULATION)
At a petitioner’s choosing, a contention can take three forms: a challenge
to the application’s adequacy based on the validity of the information that is in
the application; a challenge to the application’s adequacy based on its alleged
omission of relevant information; or some combination of these two challenges.
See 10 C.F.R. §2.714(b)(2)(iii).
RULES OF PRACTICE: CONTENTIONS (SCOPE)
In determining which of the three forms is involved in any contention, a
presiding officer should look first to the language of the contention. If that proves
unavailing, the language of the bases provided to support the contention may be
examined to discern the sponsor’s intent relative to the contention’s scope and
meaning.See Public Service Co. of New Hampshire (Seabrook Station, Units 1
and 2), ALAB-899, 28 NRC 93, 97 (1988) (explaining that when ‘‘the issue is
the scope of a contention, there is no good reason not to construe the contention
and its bases together in order to get a sense of what precise issue the party seeks
to raise’’).
REGULATIONS: INTERPRETATION (10 C.F.R. §72.102(e))
The only reference in 10 C.F.R. Part 72, Subpart E, to alternative sites is in
10 C.F.R. §72.102(e) that states ‘‘[i]n an evaluation of alternative sites, those
which require a minimumof engineeredprovisionsto correct site deficiencies are
preferred. Sites with unstable geologic characteristics should be avoided.’’ In the
contextofSubpartE,thisclearlyisnotan admonitionintendedtogovernthescope
of a NEPA environmental siting alternatives analysis, but rather is intended as a
substantive site selection criterion applicable to an ISFSI site actually proposed
in an application.See 45 Fed. Reg. 74,693, 74,697 (Nov. 12, 1980) (statement
200
of considerations regarding initial adoption of 10 C.F.R. Part 72, Subpart E,
including section 72.66(a)(5) that mirrors language of current section 72.102(e),
notes that ‘‘[t]he principle of selecting sound sites has been retained in the final
rule’’ in that, for example, ‘‘sites that lie within the range of strong nearfield
ground motion from earthquakes on larger capable faults should be avoided’’).
RULES OF PRACTICE: CONTENTIONS (SCOPE)
NEPA: CONTENTIONS (SCOPE; AMENDMENT)
While a contention initially framed as a challenge to the substance of an
applicant’s ER analysis of particular matters would not necessarily require a
late-filed revision or substitution to constitute a litigable issue statement relative
to the substance of the Staff’s DEIS (or final environmental impact statement)
analysis of the same matter, a significant change in the nature of the purported
National Environmental Policy Act (NEPA) imperfection, from one focused on
a comprehensive information omission to one centered on a deficient analysis of
subsequently supplied information, warrants such an issue modification.See 10
C.F.R. §2.714(b)(2)(iii).
MEMORANDUM AND ORDER
(Granting Summary Disposition Motion Regarding
Contention Utah AA)
PendingbeforetheLicensingBoardin thisproceedingtoconstructandoperate
a 10 C.F.R. Part 72 independent spent fuel storage installation (ISFSI) on the
SkullValley,UtahreservationofIntervenorSkullValleyBandofGoshuteIndians
(Skull Valley Band) is a motion by Applicant Private Fuel Storage, L.L.C. (PFS),
for summary disposition of Intervenor State of Utah’s (State) contention Utah
AA, Range of Alternatives. As admitted, contention Utah AA challenges the PFS
environmental report (ER) National Environmental Policy Act (NEPA) analysis
of the range of reasonable siting alternatives for its proposed action. PFS asks
that summary disposition be granted in its favor on contention Utah AA because
that issue is now moot or incorrect as a matter of law, a request that is supported
by the NRC Staff and opposed by the State.
For the reasons set forth below, we grant the PFS dispositive motion on this
issue.
I. BACKGROUND
In its April 1998 ruling on standing and litigable issues, the Licensing Board
admitted contention Utah AA, concerning the sufficiency of the range of siting
201
alternatives discussed in the ER that accompanied the PFS application for its
proposed facility.See LBP-98-7, 47 NRC 142,aff’d on other grounds,CLI-98-
13, 48 NRC 26 (1998). As admitted by the Board, the contention reads:
TheEnvironmental Report fails tocomply withthe National Environmental Policy Actbecause
it does not adequately evaluate the range of reasonable alternatives to the proposed action.
47 NRC at 256. In admitting the contention, the Board limited the scope of
the contention to the adequacy of the PFS alternative site analysis.See id.at
203. Additionally,the Board consolidated a similar portionof anothercontention,
Castle Rock 13, Inadequate Consideration of Alternatives, with contention Utah
AA.Seeid.at219. Althoughthepartiessponsoringthatcontentionlaterwithdrew
as intervenors to this proceeding, the Board ruled their withdrawal did not affect
the viability of contentionUtah AA as admitted.See LBP-99-6,49 NRC 114, 118
(1999).
As its basis for contention Utah AA, the State asserted that the ER discussion
ofsitingalternativeswas‘‘woefullyinadequate,’’declaringmorespecificallythat
(1) for the second site screening phase, by which PFS reduced its consideration
from thirty-eight to three sites, there was ‘‘no discussion or tabulation’’ of the
screening results; (2) there was ‘‘no mention’’ of whether the site suitability
questionnaire used for the third site screening phase went to all thirty-eight site
owners or only to the Skull Valley Band; (3) there was ‘‘absolutely no discussion
or tabulation’’ of the responses to the phase three questionnaire; (4) there was
no identification of the three sites selected using the third screening phase; (5)
there was no discussion of how the two Skull Valley Band reservation sites
were selected as a result of the final screening process; (6) whether a particular
site was within a ‘‘willing jurisdiction’’ seemed to be an overarching selection
criterion; (7) there was no discussion of the application of the 10 C.F.R. Part
72, Subpart E site evaluation factors; (8) there was a ‘‘failure to consider’’
transportation corridors and accident and risk analyses; (9) site selection criteria
are unreliable because they were not applied at all screening levels; and (10)
screening process information has not been described and tabulated. [State]
Contentions on the Construction and Operating License Application by [PFS] for
anIndependentSpentFuel StorageFacility (Nov.23,1997)at172-74[hereinafter
State Contentions]. Further, in connection with contention Castle Rock 13, the
relevantportionof the basis for the contentionassertedthat in connectionwith the
Skull Valley Band site and a Wyoming site that were considered as the two final
candidate sites, or for the Skull Valley Band site and any other location, there is
‘‘no discussion’’ in the ER on environmental effects and impacts, technical and
other costs/benefits of alternatives. Contentions of Petitioners Castle Rock Land
& Livestock, L.C., Skull Valley Co., Ltd, and Ensign Ranches of Utah, L.C. on
the License Application for the [PFS] Facility (Nov. 21, 1997) at 50-51.
202
InJune2000,theStaffissuedadraftenvironmentalimpactstatement(DEIS)for
the PFS facility.See Draft Environmental Impact Statement for the Construction
and Operation of an [ISFSI] on the Reservation of the [Skull Valley Band] and
the Related Transportation Facility in Tooele County, Utah, NUREG-1714 (June
2000) [hereinafter DEIS]. In the DEIS, the Staff discussed the PFS site selection
process and criteria and performed an evaluation of various siting alternatives.
See id.at 7-1 to -36.
On April 18, 2001, PFS filed the pending motion for summary disposition
of contention Utah AA, along with a supporting statement of material facts not
in dispute.See [PFS] Motion for Summary Disposition of Utah Contention AA
— Range of Alternatives (Apr. 18, 2001) [hereinafter PFS Dispositive Motion];
see also id.Statement of Material Facts on Which No Genuine Dispute Exists
[hereinafter PFS Undisputed Facts]. On May 15, 2001, the State filed a response
to the PFS dispositive motion, including a statement of disputed and relevant
material facts, in which it opposed the PFS motion.See [State] Response to
[PFS] Motion for Summary Disposition of Contention Utah AA (May 15, 2001)
[hereinafter State Response];see also id.[State] Statement of Disputed and
RelevantMaterialFacts. Onthatsame date,theStafffileda responseinsupportof
the motion, includingthe supportingdeclarationof NRC Staff contractorGregory
P. Zimmermanwho serves as the EnvironmentalImpact Analysis Program leader
at the Oak Ridge National Laboratory Center for Energy and Environmental
Analysis.See NRC Staff’s Response to [PFS] Motion for Summary Disposition
of Utah Contention AA — Range of Alternatives (May 15, 2001) [hereinafter
Staff Response];see also id.Affidavit of Gregory P. Zimmerman at 18-20 (May
15, 2001)[hereinafterZimmermanDeclaration]. TheStaff’spleadingengendered
a May 25, 2001 State reply opposing the Staff’s support for the PFS contention
Utah AA summary disposition request.See [State] Reply to Staff’s Response
to [PFS] Motion for Summary Disposition of Utah Contention AA — Range of
Alternatives (May 25, 2001) [hereinafter State Reply].
II. ANALYSIS
A. Summary Disposition Standards
We have articulated the standard governing consideration of a motion for
summary disposition several times in this proceeding in ruling on previous PFS
motions. We will rely on the same standard noted below in ruling on the pending
PFS summary disposition motion:
‘‘Under 10 C.F.R. §2.749(a), (d) summary disposition may be entered with respect to
any matter (or all of the matters) in a proceeding if the motion, along with any appropriate
supporting material, shows that there is ‘‘no genuine issue as to any material fact and that
203
the moving party is entitled to a decision as a matter of law.’’ The movant bears the initial
burden of making the requisite showing that there is no genuine issue as to any material
fact, which it attempts to do by means of a required statement of material facts not at issue
and any supporting materials (including affidavits, discovery responses, and documents) that
accompany its dispositive motion. An opposing party must counter each adequately supported
material fact with its own statement of material facts in dispute and supporting materials, or the
movant’s facts will be deemed admitted.See Advanced Medical Systems, Inc.(One Factory
Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102-03 (1993).’’
LBP-01-19, 53 NRC 416, 421-22 (2001) (quoting cited cases from this
proceeding).
Withthesegeneralprinciplesasthebackdrop,wenowturntothePFSsummary
disposition motion regarding contention Utah AA.
B. Application to Contention Utah AA
1. PFS Position
PFS provides eighteen assertedly undisputed material facts in support of its
argument that the State’s concerns with respect to the ER analysis of the range
of siting alternatives, as articulated in contention Utah AA and as admitted by
the Board, have been rendered moot by the subsequent Staff DEIS or, in the
alternative, are incorrect as a matter of law. According to PFS, the State’s
entire basis for contention Utah AA relates solely to purported omissions of
certain discussions from the PFS ER.See PFS Dispositive Motion at 2. PFS
suggests a literal reading of the State’s contention, pointing to language in
the supporting basis statement that declares that the ER discussion of siting
alternativesis ‘‘woefullyinadequate’’sincethereis ‘‘nodiscussion’’ofscreening
results, ‘‘no mention’’ of site selection questionnaire recipients, and ‘‘absolutely
no discussion’’ of the recipient’s responses.Id.(quoting State Contentions at
172-73). PFS asserts that these supposed omissions, whether or not the cause for
legitimateconcern,havenowbeendealtwithintheDEISandsonolongerprovide
the grounds for a challenge to the PFS licensing request. Referencing DEIS
section 7.1, relative to these State ‘‘no discussion’’ concerns, PFS declares that
the site selection process and the correspondingsite selection criteria were clearly
identified, including a discussion of the PFS phase two site selection information
gathering/tabulation/evaluation process that resulted in the identification of four
and then, with one candidate jurisdiction’s withdrawal, three potential sites; an
outline of the site selection questionnaire distribution process to the three site
owners or promoters; and a discussion of the tabulation/evaluation process that
was used for the phase three selection process.See PFS Dispositive Motion at
11-15;see also PFS Undisputed Facts at 2-3. Furthermore, PFS asserts that
the DEIS discussion of alternative sites satisfies NEPA in that, contrary to the
204
State’s claim, an applicant and the Staff need not go into a detailed discussion
and analysis of the site selection process, but rather need only provide a brief
description of the process that outlines how alternate sites were identified/ruled
out that is adequate to demonstrateno ‘‘obviouslysuperior’’site was overlooked.
Given that the State has not identified such a site, PFS declares, the DEIS as
written satisfies NEPA as a matter of law.Id.at 16-18. Finally, PFS declares that
the asserted need for consideration of Subpart E site evaluation factors is legally
incorrect because Subpart E, by its terms, applies only to a ‘‘proposed’’ site, i.e.,
the Skull Valley Band site actually put forth by PFS in its application.See PFS
Dispositive Motion at 18-19;see also PFS Undisputed Facts at 3.
Although noting agency case law that contentions challenging an ER are
considered as contesting a subsequently prepared DEIS,see PFS Dispositive
Motion at 8 (citing Louisiana Energy Services, L.P.(Claiborne Enrichment
Center), CLI-98-3, 47 NRC 77, 84 (1998)), PFS concludes that, to the extent the
State’s concerns were legally cognizable, the DEIS siting alternatives discussion
has addressed the omissions outlined in contention Utah AA so as to entitle PFS
to summary disposition on that issue statement. Moreover, according to PFS, the
State is now foreclosed from raising the challenges to the substance of the DEIS
discussion that it sets forth in its summary disposition response because the State
failed to submit a timely revision of contention Utah AA following issuance of
the DEIS.See id.at 8-10.
2. Staff Position
The Staff agrees with PFS that there no longer exists any genuine dispute
of material fact with respect to contention Utah AA. According to the Staff,
DEIS coverage of the siting alternatives to the proposed action nullifies the State
challenges outlined in contention Utah AA. In this regard, the Staff seeks to
demonstrate in a point-by-pointanalysis that the DEIS covers each of the matters
the State claims were allegedly neglected in the PFS ER.See Staff Response at
10-16;see also Zimmerman Declaration at 2-3. Like PFS, the Staff argues that
the scope of contention Utah AA (including the admitted portion of Castle Rock
13) is limited to the matters asserted not to have been addressed in the ER, which
the Staff maintains were addressed in its DEIS siting alternatives discussion.
See Staff Response at 10, 16. Moreover, according to the Staff, although the
DEIS now providesa detailed discussion of the siting alternativesto the proposed
action, the State took no steps to amend its contention or file a new contention to
challenge the adequacy of the DEIS analysis.See id.at 9-10 & n.11. Under the
circumstances, the Staff concludes that PFS has met its burden of showing that
there are no material facts in dispute regardingcontentionUtah AA and so should
have summary disposition entered in its favor.
205
3. State Position
The State seeks to establish the existence of a material factual dispute with
regard to PFS material facts four, eight, ten, and twelve, declaring that the State’s
challengeshouldnot be construedin the limited termsadvocatedby PFS.
1 Rather,
the State asserts that its contention should be viewed as a broad challenge to
the reasonableness of the PFS site selection process and its adequacy in meeting
the requirements of NEPA.See State Disputed Facts at 2; State Reply at 5-7.
Additionally, the State contends that the DEIS for the PFS facility erroneously
relies upon the results of the site selection process in the ER and, therefore, does
not contain a legally adequate analysis of alternatives.See State Response at 7-8;
State Reply at 1-3. The State argues in this regard that PFS winnowed down
its site list by applying objectives and criteria (such as selecting sites from a
business rather than an environmentalperspective) that are not acceptable for use
by the Staff relative to the elimination of alternative sites under NEPA.See State
Response at 10-11. Further, the State contends that the Staff’s discussion of the
PFS site selection process makes it clear that it did not understand fully the PFS
process or did not have enough information to determine that only appropriate
criteria were used, evidencing a Staff failure to carry out its responsibility to
make a knowledgeable, independent determination about which alternative sites
are reasonable to analyze under NEPA.See id.at 12; State Reply at 4-5.
In advocating this position, the State asserts that its contention has not been
mooted by issuance of the Staff’s DEIS. The State objects to what it believes is
thePFS attemptto redefinetheState’spurpose‘‘inanunreasonablynarrowway’’
thereby ‘‘ignor[ing] the plain language of the contention itself.’’ State Response
at 14; State Reply at 5. Instead, the State asserts that contention Utah AA is a
broad challenge to the adequacy of site alternatives under NEPA, and not simply
a challenge to the mere exclusion of relevantsubjectmatter from the PFS ER.See
State Response at 14. As a result, the State arguesthat it hasestablished a material
factual dispute relative to the adequacy of the DEIS site selection alternatives
analysis such that summary disposition of contention Utah AA is not appropriate.
1 PFS material fact four assertsthat contention Utah AA is limited by its own languageto challenging only whether
certain issues were discussed in the ER and does not function as a broad challenge to the merits of the analysis.See
PFS Undisputed Facts at 1. Material fact eight states that the PFS site selection process is described and the selection
criteria identified in DEIS section 7.1.Id.at 2. Material fact ten pertains to DEIS coverage of the basis upon which
the PFS Board of Managers narrowed down the list of candidate sites in phase two of the site selection process.Id.
Finally, material fact twelve states that the DEIS describes how the site selection process resulted in four sites being
selected for further evaluation, a list that was later trimmed to three sites when one such site opted not to participate
further in the process.Id.
206
4. Board Ruling
As is apparent from the parties’ arguments relative to the PFS dispositive
motionregardingcontentionUtah AA,thequestionofthescopeofthiscontention
once again is of critical concern. As we noted recently in addressing such
a ‘‘scope’’ issue in the context of another summary disposition ruling in this
proceeding:
[A]t the petitioner’s choosing,[contentions] can take three forms: a challenge to the
application’s adequacy based on the validity of the information that is in the application; a
challenge to the application’s adequacy based on its alleged omission of relevant information;
or some combination of these two challenges.See 10 C.F.R. §2.714(b)(2)(iii). Further, it is
apparent that in determining which of these three forms is involved in any contention, we look
first to the language of the contention. Yet, if that proves unavailing, the language of the bases
provided to support the contention may be examined to discern the sponsor’s intent relative
to the contention’s scope and meaning.See Public Service Co. of New Hampshire (Seabrook
Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 (1988) (explaining that when ‘‘the issue is
the scope of a contention, there is no good reason not to construe the contention and its bases
together in order to get a sense of what precise issue the party seeks to raise’’).
LBP-01-23,54 NRC 163, 171(2001). As before, we considerthe languagein this
one-sentence contention, which declares that the PFS ER does not ‘‘adequately
evaluate’’ the range of alternatives. Since on its face this language is sufficiently
imprecise to encompasseither a purported‘‘analysis’’or ‘‘omission’’deficiency,
further examination of the State’s basis statement is merited to discern the
contention’s scope.
As the basis synopsis set forth above indicates,see supra p. 202, the thrust of
this contention is an ‘‘omission’’ challenge to the ER and, concomitantly, to the
DEIS. Contention Utah AA basis items one through five, seven, eight, and ten
and the basis for consolidated contention Castle Rock 13 make note of certain
purportedinformationdeficiencies, includinglack of discussion and/or tabulation
of information and results, particularly for the second and third screening phases;
lack of discussion of the distribution process used for the third screening phase
questionnaire; failure to identify the three sites culled out by the third phase
screening; failure to discuss how the two Skull Valley Band reservation sites
were selected pursuant to the final screening process; and lack of consideration
of transportation corridors and accident and risk analyses.
2 As is clear from the
2 As to the other two basis matters, although they arguably do not fall strictly within the ‘‘omission’’ category,
they nonetheless fail to embody a material factual dispute so as to merit further consideration in an evidentiary
hearing. Relative to item six — PFS overreliance on ‘‘willing jurisdiction’’ as a phase one selection criterion — the
State’s response, in which it indicates that utilizing such a factor was appropriate for PFS,see State Response at
10, essentially renders this matter moot as well. Moreover, relative to item nine — the purported failure to apply
the same criteria during all screening phases — as the Staff points out without contradiction by the State,see Staff
Response at 15;see State Reply at 1-7, this concern does not recognize the practical reality of the site selection
(Continued)
207
alternative site discussion in the DEIS, with one exception, those matters have
now been addressed so as to render these State concerns moot and thus subject to
summary disposition in favor of PFS.
3 See PFS Motion at 10-15; Staff Response
at 10-16. The only State-identified ‘‘omission’’ item that is not discussed in the
DEIS — item seven regarding the application of 10 C.F.R. Part 72, Subpart E
— likewise fails to provide the requisite material factual dispute because those
provisions apply to a ‘‘proposed’’ site put forth by an applicant as the site for a
licensed facility, not a site that is simply being evaluated to determine whether it
should be chosen as the ‘‘proposed’’site for an ISFSI facility.
4
Given the curative treatment afforded by the DEIS regarding the information
the State previously asserted was missing from the application, not unexpectedly
thecurrentfocusoftheState’sconcernistheStaffanalysisprovidedinconnection
with this information now furnished in the DEIS. Nonetheless, with the issuance
of the Staff DEIS that includes the information previously alleged to have been
lacking, we are presented with a substantial difference in the nature of the
purported NEPA deficiency. While a contention initially framed as a challenge
to the substance of an applicant’s ER analysis of particular matters would not
necessarilyrequirealate-filedrevisionorsubstitutiontoconstitutealitigableissue
statement relative to the substance of the Staff’s DEIS (or final environmental
impact statement) analysis of the same matter, a significant change in the nature
of the purported NEPA imperfection, from one focused on a comprehensive
information omission to one centered on a deficient analysis of subsequently
supplied information, warrants such an issue modification.See 10 C.F.R.
§2.714(b)(2)(iii).
In this instance, relative to the matters about which the State previously
expressed any particularized concern in formulating contention Utah AA, there
has been a significant change by reason of the Staff’s DEIS such that the State
should have channeled its concerns pertaining to the Staff’s discussion of siting
process. It is not apparent how applying the same criteria at each level of the selection process will narrow the pool
of candidate sites. Instead, different criteria are necessary as the pool of candidate sites becomes smaller in order to
fine-tune the site suitability process.
3 The ultimate issue of the validity or adequacy of the DEIS coverage of the range of alternatives to the proposed
action is not now before us. We thus do not express a view on the ‘‘correctness’’ of the Staff’s revised DEIS
analysis. We also need not address PFS’s alternative argument relating to the level of detail needed in an inquiry into
an applicant’s site selection process under NEPA. Instead, we consider the Staff’s acknowledgment of the factors
highlighted in contention Utah AA facially sufficient to support the PFS ‘‘mootness’’ argument.4 As the Staff points out,see Staff Response at 14 n.16, the only reference in Subpart E to alternative sites is
10 C.F.R. §72.102(e), which states that ‘‘[i]n an evaluation of alternative sites, those which require a minimum of
engineered provisions to correct site deficiencies are preferred. Sites with unstable geologic characteristics should
be avoided.’’ In the context of Subpart E, however, this clearly is not an admonition intended to govern the scope
of a NEPA environmental siting alternatives analysis, but rather is intended as a substantive site selection criterion
applicable to an ISFSI site actually proposed in an application.See 45 Fed. Reg. 74,693, 74,697 (Nov. 12, 1980)
(statement of considerations regarding initial adoption of 10 C.F.R.Part 72, Subpart E, including section 72.66(a)(5)
that mirrors language of current section 72.102(e), notes that ‘‘[t]he principle of selecting sound sites has been
retained in the final rule’’ in that, for example, ‘‘sites that lie within the range of strong nearfield ground motion
from earthquakes on larger capable faults should be avoided’’).
208
alternatives into a new or amended contention to challenge the adequacy of the
informationand relatedanalysisincludedin the DEIS. TheState did notdo so and
the time for introducing such matters into this proceeding appears to have long
since passed.
5 These arguments, not having been presented in a timely fashion,
cannot now provide the basis for a material factual dispute that supports a denial
of summary disposition for contention Utah AA.
III. CONCLUSION
In connection with contention Utah AA, Range of Alternatives, in light of the
discussion put forth by the Staff in its June 2000 DEIS regarding the range of
reasonable siting alternatives for the proposed PFS facility, we conclude that PFS
has met its burden of establishing there are no material factual issues remaining
in dispute regarding contention Utah AA so as to entitle it to a judgment in its
favor in that, as a matter of law, contention Utah AA is now moot.
For the foregoing reasons, it is, this twentieth day of September 2001,
ORDERED that the April 18, 2001 motion for summary disposition of PFS
regarding contention Utah AA is granted and, for the reasons given in this
5 See Licensing Board Memorandum and Order (General Scheduling for Proceeding and Associated Guidance)
(June 29, 1998) at 5 (contentions based on the PFS facility DEIS ‘‘should be submitted no later than thirty days’’
after the DEIS is made publically available) (unpublished).
209
Memorandumand Order, a decision regarding contention Utah AA is renderedin
favor of PFS on the ground that the issue is now moot.
THE ATOMIC SAFETY AND
LICENSING BOARD
6
G. Paul Bollwerk, III, Chairman
ADMINISTRATIVE JUDGE
Jerry R. Kline
ADMINISTRATIVE JUDGE
Peter S. Lam
ADMINISTRATIVE JUDGE
Rockville, Maryland
September 20, 2001
6 Copies of this Memorandum and Order were sent this date by Internet e-mail transmission to counsel for (1)
Applicant PFS; (2) Intervenors Skull Valley Band of Goshute Indians, Ohngo Gaudadeh Devia, Confederated Tribes
of the Goshute Reservation, Southern Utah Wilderness Alliance, and the State; and (3) the Staff.
210
Cite as 54 NRC 211 (2001)CLI-01-20
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket Nos. 50-369
50-370
50-413
50-414
DUKE ENERGY CORPORATION
(McGuire Nuclear Station, Units 1 and 2;
Catawba Nuclear Station, Units 1
and 2) October 4, 2001
Inthis Order,theCommissionreferstotheAtomicSafetyandLicensingBoard
Panel, for assignment of a Licensing Board to rule on, two separate petitions
to intervene and requests for a hearing filed in the matter of the Licensee’s
application for renewal of its operating licenses for McGuire Nuclear Station,
Units 1 and 2, and Catawba Nuclear Station, Units 1 and 2. The Commission
provides the Licensing Board with guidance for the conduct of the proceeding if
a hearing is granted, and a suggested schedule for any proceeding.
RULES OF PRACTICE: SCOPE OF PROCEEDING
OPERATING LICENSE RENEWAL
Thescopeofaproceedingonanoperatinglicenserenewalislimitedtoareview
of the plant structures and components that will require an aging management
review for the period of extended operation and the plant’s systems, structures,
and components that are subject to an evaluation of time-limited aging analyses.
See 10 C.F.R. §§54.21(a) and (c), 54.4. In addition, review of environmental
211
issues in a licensing renewal proceeding is limited in accordance with 10 C.F.R.
§§51.71(d) and 51.95(c).
ORDER
(Referring Petitions for Intervention and Requests for Hearing
to the Atomic Safety and Licensing Board Panel)
I. INTRODUCTION
On June 13, 2001, Duke Energy Corporation (‘‘the Applicant’’) submitted an
applicationto renew the operatinglicenses for its McGuire Nuclear Station, Units
1 and 2, and the Catawba Nuclear Station, Units 1 and 2. Both the McGuire and
CatawbafacilitiesarelocatednearCharlotte,NorthCarolina. Thenoticeofreceipt
ofapplicationwaspublishedin the FederalRegister onJuly16, 2001.See 66Fed.
Reg. 37,072 (2001). On August 15, 2001, the Staff of the Nuclear Regulatory
Commission (‘‘the Staff’’) issued a Notice of Acceptance for Docketing of the
Application and Notice of Opportunity for a Hearing.See 65 Fed. Reg. 60,693
(2001).
Two organizations, the Nuclear Information and Resource Service (‘‘NIRS’’)
and the Blue Ridge Environmental Defense League (‘‘BREDL’’), have filed
petitions to intervene and requests for hearing in accordance with 10 C.F.R.
§2.714. This Order refers those petitions to intervene and requests for hearing
to the Chief Administrative Judge of the Atomic Safety and Licensing Board
Panel for assignment of an Atomic Safety and Licensing Board to rule on these
and any additional requests for hearing and petitions for leave to intervene and,
if a hearing is granted, to conduct the proceeding. The Order also provides the
Licensing Board with guidance for the conduct of any proceeding if a hearing is
granted, and a suggested schedule for any such proceeding.
II. COMMISSION GUIDANCE
A. Scope of Proceeding
The scope of this proceeding is limited to discrete safety and environmental
issues.Florida Power & Light Co.(Turkey Point Nuclear Generating Plant,
Units 3 and 4), CLI-01-17, 54 NRC 3, 6-13 (2001). This encompasses a review
of the plant structures and components that will require an aging management
review for the period of extended operation and the plant’s systems, structures,
and components that are subject to an evaluation of time-limited aging analyses.
See 10 C.F.R. §§54.21(a) and (c), 54.4; Nuclear Power Plant License Renewal:
212
Revisions, Final Rule, 60 Fed. Reg. 22,461 (1995). In addition, review of
environmental issues is limited in accordance with 10 C.F.R. §§51.71(d) and
51.95(c).See NUREG-1437, ‘‘Generic Environmental Impact Statement (GEIS)
for License Renewal of Nuclear Plants’’; Environmental Review for Renewal
of Nuclear Power Plant Operating Licenses, Final Rule, 61 Fed. Reg. 28,467
(1996),amended by 61 Fed. Reg. 66,537 (1996). The Licensing Board shall be
guided by these regulations in determining whether proffered contentions meet
the standardin10 C.F.R. §2.714(b)(2)(iii).It is the responsibilityof the petitioner
to provide the necessary information to satisfy the basis requirement for the
admission of its contentions and to demonstrate that a genuine dispute exists
within the scope of this proceeding. If rulings on the admission of contentions
or the admitted contentions themselves raise novel legal or policy questions,
the Licensing Board should refer or certify such rulings or questions to the
Commission on an interlocutory basis. The Commission itself is amenable to
such early involvement and will evaluate any matter put before it to ensure that
substantive interlocutory review is warranted.
The Commission expects that matters within the scope of this proceeding
but not put into controversy will be considered by the Licensing Board only
where the Licensing Board finds that a serious safety, environmental,or common
defense and security matter exists. Such consideration should be exercised only
in extraordinary circumstances. If the Licensing Board decides to raise a matter
on its own initiative, a copy of its ruling, setting forth in general terms its reasons,
must be transmitted to the Commission. The Licensing Board should not proceed
to consider such sua sponte issues unless the Commission approvesthe Licensing
Board’s proposal to do so.
B. Discovery Management
Similar to the practice under current Rule 26 of the Federal Rules of Civil
Procedure, if a hearing is granted, the Licensing Board should order the parties
to provide certain information to the other parties without waiting for discovery
requests. This information will include the names and addresses of individuals
likely to have discoverable information relevant to the admitted contentions, the
names of individuals likely to be witnesses in this proceeding, the identification
of documents that will likely contain discoverable information, the production
of such documents (if not already publicly available), and any other information
relevant to the admitted contentions that the Licensing Board may require in its
discretion.
Within 30 days of any Licensing Board order granting a request for a hearing,
the Staff shall file in the docket, present to the Licensing Board, and make
available a case file to the Applicant and any other party to the proceeding.
The Staff will have a continuing obligation to keep the case file up to date, as
213
documents become available. The case file will consist of the application and
any amendments thereto, the Final Environmental Impact Statement (in the form
of a plant-specific supplement to the GEIS), any Staff safety evaluation reports
relevant to the application, and any correspondence between the Applicant and
the NRC that is relevant to the application. Formal discovery against the Staff,
pursuant to 10 C.F.R. §§2.720(h), 2.740, 2.742, and 2.744, regarding the Staff’s
safetyandenvironmentalreviewdocumentswillbesuspendeduntilafterissuance
of the final Safety Evaluation Report (SER) — i.e., the Supplemental SER —
and the Final Supplemental Environmental Impact Statement (FES),
1 unless the
Licensing Board in its discretion finds that starting discovery against the Staff
on safety issues before the final SER is issued will expedite the hearing without
adversely impacting the Staff’s ability to complete its evaluations in a timely
manner.
The Licensing Board, consistent with fairness to all parties, should narrow the
issues requiringdiscoveryand limit discoveryto no more than one roundeach for
original and late-filed contentions.
C. Proposed Schedule
The Commission directs the Licensing Board to set a schedule for any hearing
granted in this proceedingthat establishes as a goal the issuance of a Commission
decision on the pending application in about 2
1/2 years from the date that the
application was received. In addition, if the Licensing Board grants a hearing,
once the Licensing Board has ruled on any petition for intervention and request
for a hearing, formal discovery against the Staff shall be suspended until after the
Staff completes its final SER and FES, subject to the discretion discussed above
oftheLicensingBoardtoproceedwithdiscoveryagainsttheStaffonsafetyissues
prior to the issuance of the final SER,or to proceed with discovery against the
Staff on either the FES or final SER (see note 1,supra). The evidentiary hearing
should not commence until after completion of the final SER and FES, unless
the Licensing Board in its discretion finds that starting the hearing with respect
to safety issues prior to issuance of the final SER will expedite the proceeding
without adversely impacting the Staff’s ability to complete its evaluations in a
timely manner.
The Commission believes that, in the appropriate circumstances, allowing
discoveryoranevidentiaryhearingwithrespecttosafety-relatedissuestoproceed
1 This direction is based on the Staff’s review schedule for the Duke Energy application, which indicates that
the final SER and FES will be issued fairly close in time. If this is not the case, the Board, in its discretion, may
commence discovery against the Staff on safety issues if the final SER is issued before the FES or on environmental
issues if the FES is issued before the final SER. In addition, as discussed infra,the Board has the discretion in
the appropriate circumstances to permit discovery to begin against the Staff with respect to safety issues before the
issuance of the final SER.
214
before the final SER is issued will serve to further the Commission’s objective,
as reflected in the Statement of Policy on Conduct of Adjudicatory Proceedings,
CLI-98-12, 48 NRC 18, 21, 24 (1998), to ensure a fair, prompt, and efficient
resolution of contested issues.
2 The Commission also believes that the goal of
issuingadecisiononthependingapplicationinabout21/2 yearsmaybereasonably
achieved under the current rules of practice and the enhancements directed by
this Order and by our understanding of the Staff’s current schedule for review of
the application. We do not expect the Licensing Board to sacrifice fairness and
sound decisionmaking to expedite any hearing granted on this application. We
do expect, however, the Licensing Board to use the techniques specified in this
Order and in the Commission’s policy statement on the conduct of adjudicatory
proceedings (id.) to ensure prompt and efficient resolution of contested issues.
See also Statement of Policy on Conduct of Licensing Proceedings,CLI-81-8, 13
NRC 452 (1981).
If the Licensing Board grants a hearing request, the Board should adopt the
followingmilestones, indevelopinga schedule,forconclusionofsignificantsteps
in the adjudicatory proceeding:
•Within 90 days of this Order: Decision on intervention petitions and
contentions. Start of discovery on ad-
mitted contentions, except against the
Staff.
•Within 30 days of the issuance
of final SER and FES:
Completion of discovery against the
Staffonadmittedcontentions.Late-filed
contentions to be filed.
•Within 40 days of the issuance
of final SER and FES:
Responsesto late-filedcontentionsto be
filed.
•Within 50 days of the issuance
of final SER and FES:
ASLBdecisiononlate-filedcontentions.
•Within 80 days of the issuance
of final SER and FES:
Completion of discovery on late-filed
contentions.
•Within 90 days of the issuance
of final SER and FES:
Prefiled testimony to be submitted.
2 For example, it may be appropriate for the Licensing Board to permit discovery against the Staff and/or the
commencement of an evidentiary hearing with respect to safety issues prior to the issuance of the final SER in cases
where the Applicant has responded to the Staff’s ‘‘open items’’ and there is an appreciable lag time until the issuance
of the final SER, or in cases where the initial SER identifies only a few open items.
215
•Within 125days oftheissuance
of final SER and FES:
Completion of evidentiary hearing.
•Within 220days oftheissuance
of final SER and FES:
ASLB initial decision on application.
To meet these milestones, the Licensing Board should direct the participants
to serve all filings by electronic mail (in order to be considered timely, such
filingsmust bereceivedby the Licensing Boardandpartiesno later thanmidnight
Eastern Time on the date due, unless otherwise designated by the Licensing
Board), followed by conforming hard copies that may be sent by regular mail.
If participants do not have access to electronic mail, the Licensing Board should
adopt other expedited methods of service, such as express mail, which would
ensure receipt on the due date (‘‘in-hand’’). If pleadings are filed by electronic
mail, or other expedited methods of service that would ensure receipt on the due
date, the additional period provided in our regulations for responding to filings
served by first-class mail or express delivery shall not be applicable.See 10
C.F.R. §2.710.
Inaddition,toavoidunnecessarydelaysintheproceeding,theLicensingBoard
should not grant requests for extensions of time absent unavoidable and extreme
circumstances. The Licensing Board shall not entertain motions for summary
disposition under 10 C.F.R. §2.749, unless the Licensing Board finds that such
motions are likely to expedite the proceeding. Unless otherwise justified, the
Licensing Board shall provide for the simultaneous filing of answers to proposed
contentions, responsive pleadings, proposed findings of fact, and other similar
submittals.
Furthermore, parties are obligated in their filings before the Licensing Board
andtheCommissiontoensurethattheirargumentsandassertionsaresupportedby
appropriateand accurate referencesto legal authorityand factual basis, including,
as appropriate, citation to the record. Failure to do so may result in material being
stricken from the record or, in extreme circumstances, in a party being dismissed
from the proceeding.
Ifahearingisgrantedonthisapplication,theCommissiondirectstheLicensing
Board to inform the Commission promptly, in writing, if the Licensing Board
determines that any single milestone could be missed by more than 30 days. The
Licensing Board should include an explanation of why the milestone cannot be
met and the measures the Licensing Board will take to mitigate the failure to
achieve the milestone and restore the proceeding to the overall schedule.
216
III. CONCLUSION
The Commission directs the Licensing Board to conduct this proceeding in
accordance with the guidance specified in this Order. As in any proceeding,
the Commission retains its inherent supervisory authority over the proceeding
to provide additional guidance to the Licensing Board and participants and to
resolve any matter in controversy itself.
It is so ORDERED.
For the Commission
3
ANNETTE VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 4th day of October 2001.
3 Commissioner Dicus was not present for the affirmation of this Order. If she had been present, she would have
approved it.
217
Cite as 54 NRC 219 (2001)LBP-01-27
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
Thomas S. Moore,Chairman
Thomas D. Murphy
Dr. Thomas S. Elleman
In the Matter of Docket No. 50-309-OLA
(ASLBP No. 00-780-03-OLA)
MAINE YANKEE ATOMIC POWER
COMPANY
(Maine Yankee Atomic Power
Station) October 2, 2001
ORDER
(Approving Settlement Agreement and Terminating Proceeding)
OnAugust31,2001,MaineYankeeAtomicPowerCompany(MaineYankee),
theStateofMaine,andFriendsoftheCoastOpposingNuclearPollutionfiledwith
the Licensing Board a notice of settlement, a copy of the settlement agreement,
and a joint motion to terminate this license amendment proceeding involving
Maine Yankee’s License Termination Plan. The joint motion states that the NRC
Staff has no objection to the termination of the proceeding. The Commission
lookswithfavoruponthesettlementoflicensingproceedings.See,e.g.,Statement
of Policy on Conduct of Licensing Proceedings,CLI-81-8, 13 NRC 452, 455
(1981). Here, the Board finds that the settlement agreement attached to the joint
motion is fair and reasonable and comports with the public interest. Accordingly,
the Board incorporates the settlement agreement into this Order and terminates
this license amendment proceeding.
219
The Board would like to commend the participants for their diligence in
pursuing settlement and their willingness to compromiseto reach agreement. The
Board thanks the participants for their efforts. Indeed, even though the settlement
processtookmuchlongerthaninitially anticipatedand thusnecessarily precluded
reaching any notional deadlines for conducting and concluding this proceeding,
theeffortsoftheparticipantsshouldserveasamodelforfuturelicensetermination
plan license amendment proceedings.
It is so ORDERED.
FOR THE ATOMIC SAFETY
AND LICENSING BOARD
1
Thomas S. Moore
ADMINISTRATIVE JUDGE
Rockville, Maryland
October 2, 2001
1 CopiesofthisOrderweresentthisdatebyInternet e-mailorfacsimiletransmission,ifavailable,toallparticipants
or counsel for participants.
220
Cite as 54 NRC 221 (2001)LBP-01-28
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD PANEL
Before Administrative Judge:
Ann Marshall Young,Presiding Officer
In the Matter of Docket Nos. 50-003-LT
50-247-LT
(consolidated)
(ASLBP No. 01-792-03-LT)
CONSOLIDATED EDISON COMPANY
OF NEW YORK and
ENTERGY NUCLEAR INDIAN
POINT 2 LLC, and
ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point, Units 1 and 2) October 4, 2001
ORDER
(Terminating Proceeding)
On September 18, 2001, an Order was issued in this proceeding, notifying the
partiesthat, unlessthe Presiding Officer receivedby October3, 2001,notification
of good cause not to terminate the proceeding, an Order would be entered
thereafter, terminating the proceeding and canceling the previously scheduled
October 29, 2001, hearing. The proceeding involves an application to transfer
ownership interest in and operating/maintenance responsibility for the Indian
Point Nuclear Generating Unit Nos. 1 and 2 from Consolidated Edison Company
of New York to Entergy Nuclear Indian Point 2 LLC and Entergy Nuclear
Operations, Inc. The September 18, 2001, Order was based upon receipt of
documents filed by the parties on September 7, 2001, indicating circumstances
thatappearedtowarranttheterminationofthisproceeding—namely,notification
221
that the EntergyCompanies, and the Town of Cortlandtand the Hendrick Hudson
School District (collectively, ‘‘Cortlandt’’), had reached a settlement pursuant to
which Cortlandt would be filing a Notice of Withdrawal, and a letter from the
Citizens Awareness Network stating that it declined to participate in a hearing on
the license transfer at issue. Since issuance of the September 18, 2001, Order,
Cortlandt’s Notice of Withdrawal was docketed with the Office of the Secretary
of the Commission, on September 24, 2001, and no other documents have been
filed, nor any other notifications received.
No good cause having been asserted not to terminate the proceeding, the pro-
ceeding before this Presiding Officer is hereby terminated,and the October 29,
2001, hearing is hereby cancelled.
IT IS SO ORDERED.
1
Ann Marshall Young, Presiding Officer
ADMINISTRATIVE JUDGE
Rockville, Maryland
October 4, 2001
1 CopiesofthisOrderweresentthisdatebyInternet e-mailorfacsimiletransmission,ifavailable,toallparticipants
or counsel for participants.
222
Cite as 54 NRC 223 (2001)LBP-01-29
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
Charles Bechhoefer,Chairman
Dr. Richard F. Cole
Dr. Charles N. Kelber
In the Matter of Docket No. 50-423-LA-3
(ASLBP No. 00-771-01-LA-R)
(Facility Operating
License NPF-49)
DOMINION NUCLEAR
CONNECTICUT, INC.
(Millstone Nuclear Power Station,
Unit 3) October 5, 2001
The Atomic Safety and Licensing Board grants in part and denies in part the
NRC Staff’s Motion To Continue To Hold Proceedingin Abeyance. Specifically,
the Board continued the deferral pending distribution by the Staff of a report
prepared by NRC’s Office of Investigations (OI) and an additional report and
analysis prepared for the Licensee, but declined to defer pending the NRC Staff’s
review of the Licensee’s report and analysis.
RULES OF PRACTICE: STAY OF PROCEEDINGS
In accordancewith policies set forth in the Commission’s Statement of Policy:
Investigations,Inspections,andAdjudicatoryProceedings(Sept.7,1984),49Fed.
Reg. 36,032,36,033(Sept. 13, 1984)(Policy Statement), it is appropriateto defer
adjudicatory proceedings (particularly prehearing activities such as discovery)
pending completion of an OI investigation on a matter closely related to a matter
223
under consideration in the proceeding. Such deferral is designed either (1) to
avoid compromising an ongoing investigation or inspection, or (2) to protect
confidential sources. As further set forth in the Policy Statement, however, such
deferral is to be strictly limited in both scope and duration to the minimum
necessary to achieve the purposes of the deferral.See also Georgia Power Co.
(Vogtle Electric Generating Plant, Units 1 and 2), CLI-95-9, 41 NRC 404, 405
(1995).
RULES OF PRACTICE: STAY OF PROCEEDINGS
Although the Policy Statement does not make clear whether, to accommodate
either of the OI interests there specified, deferral should extend only to the
completion of OI’s field investigation or (alternatively) to the completion of OI’s
report,theLicensingBoardconstruedthePolicyStatementassanctioningdeferral
until preparation and distribution of the OI report.
RULES OF PRACTICE: STAY OF PROCEEDINGS
The Staff’srequestfor deferralof the proceedingto permit it to analyze certain
Licenseereportsstandson a differentfootingfromitsrequestfordeferralpending
completion of an OI report. It is not encompassed within the Policy Statement.
The Staff’sanalysisof the Licensee reportsamountsto a formof trialpreparation,
and deferral during such review period, while at the same time precluding other
parties from undertaking their own trial preparation, could be inequitable. Thus,
this request by the Staff for further deferral is denied.
RULES OF PRACTICE: STAFF AUTHORITY
A Licensing Board has no authority to direct the Staff in the performance of
its nonadjudicatory functions.See, e.g., Carolina Power and Light Co.(Shearon
Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514, 516
(1980).
MEMORANDUM AND ORDER
(Staff Motion To Continue To Hold Proceeding in Abeyance)
The NRC Staff, on September 4, 2001, filed a ‘‘Motion To Continue To Hold
Proceeding in Abeyance’’ (Motion). On October 2, 2001, the Atomic Safety and
LicensingBoardconducteda telephoneconferencewith regardto thismotion(Tr.
224
604-643). For reasons set forth below, and confirming rulings announced during
the conference, we are granting in part and denying in part this motion.
I. BACKGROUND
By our Memorandum and Order (Telephone Conference, 5/24/01), dated
June 21, 2001 (unpublished) (June 21 M&O), we granted (in part) the request
of the NRC Staff to place further prehearing activities in this proceeding (e.g.,
discovery) in abeyance pending completion of an investigation by the NRC’s
Office of Investigations (OI). The investigation concerned an allegation bearing
upon a former Licensee’s (Northeast Nuclear Energy Company or NNECO)
reporting to NRC of missing fuel pins at the Millstone Unit 1 Spent Fuel Pool
(SFP). The deferral was to extend either to September 4, 2001, or the completion
of the investigation, if earlier.
For its part, the Licensee (Dominion Nuclear Connecticut, Inc., or DNC)
had also sought to defer activities in this proceeding pending completion of
its own investigation into the disappearance of the fuel pins or rods. DNC
had initially projected June 30, 2001, as a target date for completion of its
investigation(denominatedasitsFuel RodAccountabilityProject(FRAPreport)),
with an analysis (‘‘Root Cause Analysis’’ or RCA) due several weeks later, but
acknowledged that its target dates could slip. Indeed, by letter to the Licensing
Board and parties dated July 26, 2001, the Licensee acknowledged that its FRAP
investigation and report would not be completed until late September 2001, with
the RCA to be completed in the same time frame ‘‘or shortly thereafter.’’
II. STAFF MOTION
On September 4, 2001, the NRC Staff filed its motion. Supportedby affidavits
of Barry R. Letts, Region I Field Office Director, OI, and Dr. Ronald L. Bellamy,
Chief, DecommissioningandLaboratoryBranch,NMSS, in RegionI,
1 the motion
states,inter alia,that OI completed its field work and began preparation of
its report of the investigation in August 2001, and expected that copies of the
report will be available to the Board and parties by October 31, 2001, barring
unanticipated delays.
The motion goes on to request further deferral of this proceeding until the OI
report becomes available and, additionally, until the Staff has had an opportunity
to analyze the Licensee’s FRAP report and RCA. The Staff advises that its
inspection of the FRAP report is currently scheduled to begin on October 9, 2001
1 Copies of signed and executed affidavits were provided to the Licensing Board and parties by letter dated
September 21, 2001.
225
(based on availability of the FRAP report by the end of September 2001, as set
forth by DNC) and that the Staff analysis is expected to be completed ‘‘by the
end of November.’’
III. OTHER PARTIES’ POSITIONS
ByresponsedatedSeptember14,2001,theLicenseesupportstheStaffmotion,
with some qualifications. It opines that the FRAP report and RCA are the critical
pacing items in this proceeding. It reiterates that the FRAP report would be
completedbytheendofSeptember2001,butaddsthatreleaseof theFRAP report
to the Board and parties would not occur until a few days later, in early October,
with the RCA due several weeks later. DNC regards the scheduled October 31
release of the OI report as generally consistent with its dates for release of the
FRAP report and RCA. Therefore, DNC does not oppose the Staff’s requested
deferral until October 31, 2001, although expressing some doubt as to the OI
report’s relevance to the issue currently pending before the Board. As for the
Staff’s request to defer until the end of November to allow it time to analyze
the FRAP report and RCA, DNC regards this request as premature and takes no
position with respect to it. DNC suggests a prehearing discussion for mid to
late October, to cover issues of discovery and other prehearing activities in this
proceeding.
IntervenorsConnecticut Coalition Against Millstone and Long Island Citizens
Against Millstone (collectively, CCAM/CAM) filed their response to the Staff’s
motion on September 26, 2001.
2 Noting that they had opposed deferral when
initially requested by the Staff and Licensee, they oppose further deferral on the
basis that the Staff motion fails to provide any information that would warrant
further deferral. CCAM/CAM also points out that, since the issuance of the
June 21 M&O, the Staff had failed, with one exception, to provide ‘‘periodic
reports as to the status of the OI investigation, together with inspection reports on
this matter,’’ as directed by the Board. CCAM/CAM further notes that release
of the FRAP report and RCA had been delayed 100 days beyond the June 30,
2001 target date, without any explanation. On this basis, CCAM/CAM requested
2 At the Licensing Board’s request, the Chief Counsel for the Atomic Safety and Licensing Board Panel (ASLBP),
on September 24 and 25, 2001, attempted to contact by telephone counsel for CCAM/CAM, and left messages to
inquire whether CCAM/CAM had received the Staff’s motion and had any views with respect thereto. CCAM/CAM
counsel responded to the ASLBP Chief Counsel on September 25, 2001, and noted that their response (which
should have been filed by September 20, 2001) would be filed shortly. The September 26 response noted and
apologized for CCAM/CAM’s delay in filing ‘‘occasioned by scheduling disruptions brought about by the terrorism
events of September 11, 2001.’’ The Intervenors expressed their belief that neither the Staff nor Licensee would be
prejudiced if the Licensing Board takes due consideration of their response. Although we could decline to consider
CCAM/CAM’s response for untimeliness, in view of the events of September 11, 2001, and in the absence of a
showing of substantial prejudice to other parties, we will consider their response here. We have thus considered the
Intervenors’ filing and, indeed, scheduled the October 2, 2001 telephone conference as a result.
226
a telephone conference to discuss the reasons for further deferral. As indicated
earlier, such conference was held on October 2, 2001.
3
IV. LICENSING BOARD RULING
Proceedings subject to 10 C.F.R. Part 2, Subpart K (such as this one) are
expectedtobeconductedwithaviewtowardexpeditedcompletion.SeeStatement
of Considerations,10 C.F.R. Part 2, Subpart K, 50 Fed. Reg. 41,662 (Oct. 15,
1985);Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12,
48 NRC 18 (1998); 63 Fed. Reg. 41,872 (Aug. 5, 1998). Deferral of these
proceedings, as requested by the Staff,inherently compromises this goal and
thus should be founded upon significant public interest reasons before being
adopted. We thus analyze the Staff’s motion with these general considerations as
a backdrop.
A. As indicated in our June 21, 2001 M&O (which reflected rulings made as
a result of the May 24, 2001 telephone conference), the genesis of our deferral
of prehearing activities in this proceeding (particularly discovery) was primarily
the presence of an ongoing OI investigation, which was the basis upon which
the Staff sought deferral. Although not aware of the explicit information being
investigatedby OI, we neverthelessaccepted the Staff’sconclusion(supportedby
affidavits) that prehearing activities in this proceeding could compromise the OI
investigation, and we ruled that further prehearing activities should be deferred
during the pendency of the OI investigation. The rationale, of course, was
the desire to protect investigative material from premature public disclosure, as
sanctioned in the Commission’s Statement of Policy: Investigations, Inspections,
and Adjudicatory Proceedings (Sept. 7, 1984) (published at 49 Fed. Reg. 36,032
(Sept. 13, 1984)).
As there set forth, the protection from public disclosure is designed either (1)
to avoid compromising an ongoing investigation or inspection, or (2) to protect
confidential sources. Such lack of full disclosure, however, is to be strictly
limited:
[T]he Commission [notes] that as a general rule it favors full disclosure to the boards and
parties, that information should be protected only when necessary, and that any limits on
disclosure to the parties should be limited in both scope and duration to the minimum
necessary to achieve the purposes of the non-disclosure policy.
3 Participating in the call, in addition to the three Board members, were David Repka, Esq., and Lillian Cuoco,
Esq., for DNC; Nancy Burton, Esq., for CCAM/CAM; Ann Hodgdon, Esq., accompanied by Victor Nerses, Project
Manager, and David Cummings, Esq., for the NRC Staff;and Michelle McKown, Esq., counsel to the ASLBP.
Several other observers also were present.
227
49 Fed. Reg. at 36,033,see also Georgia Power Co.(Vogtle Electric Generating
Plant, Units 1 and 2), CLI-95-9, 41 NRC 404, 405 (1995).
It is not clear from the 1984 Policy Statement whether, to accommodate either
of OI’s interests specified above, deferral should extend only to the completion
of OI’s field investigation (which here occurred in August) or (alternatively) to
the completion of OI’s report, scheduled for no later than October 31, 2001.
Upon inquiry during the October 2 telephone conference, parties were not able to
reach agreement on this question. In addition, during the telephone conference,
we inquired why it would take OI from the end of August (when it finished its
investigation) to October 31, 2001, to prepare and release its report. The Staff
explained the reasons for this delay, including multiple required approvals at
both the Region I level and at NRC Headquarters. Although we are not entirely
satisfied that the OI report could not have been prepared and circulated more
expeditiously, we are aware that we have no authority to direct the Staff in the
performance of its nonadjudicatory functions.See, e.g., Carolina Power and
Light Co.(Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12,
11 NRC 514, 516 (1980).
Based on the foregoing,however, we are prepared to construe the 1984 Policy
Statement as sanctioning deferral until preparation and distribution of the OI
report. We thus extend the deferral to October 31, 2001, or to the date of
distribution of the OI Report, whichever comes earlier.
4
B. The Licensing Board’s June 21, 2001 M&O also dealt with a motion
by DNC to defer further activities in this proceeding pending completion of the
FRAP report and the RCA. At the time, the target date for completion of the
report was June 30, 2001, with the RCA scheduled shortly thereafter. Based on
the circumstance that the deferral sought by DNC was shorter in duration than
that sought by the Staff, which we had granted, we also granted the Licensee’s
deferral motion.
As noted earlier, the Licensee, by letter dated July 26, 2001, advised that it
had not met its target date of June 30, 2001, for the FRAP report and RCA. It
estimated that the FRAP reportwouldbe completedby late September2001,with
the RCA shortly thereafter. During the telephone conference, DNC confirmed
that the FRAP report had been completed and was in the process of acceptance
review by DNC. It is anticipated that the FRAP report will be distributed to the
Board and parties next week, and that the RCA will be completed in several
weeks, presumably by mid to late October. The Staff, in its current deferral
4 If the Staff believes that deferral to accommodate either of the OI interests specified above need extend beyond
October 31, 2001, we direct the Staff to notify the Board and parties (by e-mail as well as through a paper filing) no
later than Wednesday, October 24, 2001. The Board will then hold an in camerahearing session, as set forth in the
Sept. 7, 1984 Policy Statement (involving only the Board, the Staff, and OI) to ascertain the relationship between
information being investigated by OI and information that may be relevant to this proceeding and to determine
whether discovery in this proceeding would compromise either of the two OI interests outlined above.
228
motion, seeks to defer further activities pending completion by DNC of its FRAP
report and RCA and, additionally, until it has completed its own analysis of the
FRAP report and RCA, estimated for the end of November 2001.
The current schedule for distribution of the FRAP report and RCA is within
the deferral period we are granting to accommodate the OI report. Accordingly,
we are also granting the Staff’s request for deferral pending receipt of the FRAP
report and RCA.
The Staff’s additional request for deferral until the end of November to permit
itto analyzeandreviewtheFRAP reportandRCA stands, however,ona different
footing. The Licensee deems this request to be premature. Clearly, it is. But,
beyond that, an analysis of the FRAP report and RCA, as sought by the Staff,
may in effect be equated to trial preparation. During the telephone conference,
the Staff indicated that it could not develop its views on these matters until it had
an adequate opportunity to review the FRAP report and RCA, and thus could not
respond to discovery until after such review. Nonetheless, such review would
still amount to a form of trial preparation, and to grant the Staff’s request for
deferral during this period, while at the same time precluding other parties from
undertaking a significant part of their own trial preparation (e.g., discovery),
could be inequitable. Indeed, other parties’ trial preparation may involve matters
differingfrom an analysis of the FRAP reportand RCA but nonetheless requiring
pretrial activities such as discovery. For these reasons, we are denying the Staff’s
request insofar as it seeks deferral pending its scheduled analysis of the FRAP
report and RCA.
5
Both in their response to the motion and during the telephone conference,
CCAM/CAM asserted that the Staff had failed to fulfill its responsibilities to
provide copies to the Board and parties of inspection reports and status reports as
to the OI investigation. The Staff indicated that it had provided certain inspection
reports (by letter dated June 28, 2001) and that no OI status reports had been
prepared. The Staff acknowledged that an inspection report would be prepared
and distributed within the next week or so. It denied that any further reports were
available. The Board accepted this response.
V. OTHER MATTERS
Earlier in this proceeding, at the May 24, 2001 prehearing teleconference (Tr.
573-574), the Licensing Board discussed with the Staff and other parties items
from a letter from Commission Chairman Richard A. Meserve to Congressman
Edward J. Markey, dated February 1, 2001, responding to the Congressman’s
inquiries concerning the missing fuel rods and the requirements governing the
5 Prior to the end of the deferral period, any party may, of course, request further deferral, for good cause shown.
229
storageofspentfuelatnuclearplants.6 DuringtheOctober2,2001teleconference,
the Board inquired whether the response to Congressman Markey had been
updated. The Staff advised that an update was about to be provided by Chairman
Meserve within a relatively short time period and that, after transmission to
CongressmanMarkey, the Staff wouldprovidea copyto the Licensing Board and
parties. The Licensing Board appreciates the Staff’s assistance in this regard.
VI. ORDER
For the reasons stated, it is, this 5th day of October 2001, ORDERED:
1. The Staff’s motion to extendthe deferralof this proceedingto October 31,
2001 (the date when its OI report is scheduled to be released) is hereby granted.
2. The Staff’s motion to extend the deferral period to the date of release
and distribution of the FRAP report and RCA, currently scheduled for mid-
October 2001, seeks relief comprehended by the OI deferral set forth above and,
accordingly, is also hereby granted,until no later than October 31, 2001.
3. The Staff’s additional request for further deferral to the end of November
2001 to permit it to analyze the FRAP report and RCA, is hereby denied.
In addition, the parties are advised that a telephone prehearing conference will
be held in late October 2001, at a time to be announced, to prescribe discovery
schedules, schedules for filing prepared statements, and other dates relative to the
10 C.F.R. Part 2, Subpart K oral argument.
FOR THE ATOMIC SAFETY
AND LICENSING BOARD
Charles Bechhoefer, Chairman
ADMINISTRATIVE JUDGE
Rockville, Maryland
October 5, 2001
[Copies of this Memorandum and Order have been served this date by e-mail on
representatives of each of the parties.]
6 Copies of this letter were furnished to the Licensing Board and parties through the Staff’s February 20, 2001
filing in this proceeding.
230
Cite as 54 NRC 231 (2001)LBP-01-30
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
G. Paul Bollwerk, III,Chairman
Dr. Jerry R. Kline
Dr. Peter S. Lam
In the Matter of Docket No. 72-22-ISFSI
(ASLBP No. 97-732-02-ISFSI)
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) October 30, 2001
In this proceeding concerning the application of Private Fuel Storage, L.L.C.
(PFS), under 10 C.F.R. Part 72 to construct and operate an independentspent fuel
storage installation (ISFSI), acting pursuant to 10 C.F.R. §2.749, the Licensing
Board grants in part and denies in part a PFS request for summary disposition
in its favor regarding contention Utah DD, Range of Alternatives, finding that
material factual disputes existed with Intervenor State of Utah (State) concerning
the adequacyofthe discussionin thePFS environmentalreport(ER) andtheNRC
Staff’sJune2001draftenvironmentalimpactstatement(DEIS)relativetoimpacts
of the proposed PFS facility upon a local peregrine falcon nest, but determining
that no such disputes existed regarding the adequacy of the ER/DEIS discussion
concerning facility impacts on the pocket gopher, Pohl’s milkvetch, and spring
parsley, and area private domestic livestock and produce.
RULES OF PRACTICE: SUMMARY DISPOSITION (BURDEN OF
PERSUASION; BURDEN OF PROOF)
Consistent with Federal Rule of Civil Procedure 56, the moving party bears
the initial burden of showing that no genuine issue as to any material fact
231
exists, which the party must do by a required statement of material facts and
any supporting documentation submitted with the requisite motion.See Private
Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), LBP-99-32,
50 NRC 155, 158 (1999). The opposing party must counter each adequately
supported material fact with its own statement of material facts in dispute and
supporting documentation, or the facts will be deemed admitted.See Advanced
Medical Systems, Inc.(One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38
NRC 98, 102-03(1993). When responding,the opposingparty may not rely upon
mere allegations or denials but must submit ‘‘specific facts showing that there is
a genuine issue of fact.’’ 10 C.F.R. §2.749(b).
RULES OF PRACTICE: SUMMARY DISPOSITION (BURDEN OF
PERSUASION; BURDEN OF PROOF)
Even if an opposing party fails to respond to a dispositive motion, the movant
must still have established that no genuine issue of material fact exists so that it
is entitled to a ruling in its favor.See Cleveland Electric Illuminating Co.(Perry
Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753-54 (1977).
MEMORANDUM AND ORDER
(Granting in Part and Denying in Part Summary Disposition Motion
Regarding Contention Utah DD)
Pursuant to 10 C.F.R. §2.749, Applicant Private Fuel Storage, L.L.C. (PFS),
has requested that summary disposition be entered in its favor regarding
Intervenor State of Utah’s (State) contention Utah DD, Ecology and Species.
As admitted, contention Utah DD asserts that PFS failed adequately to address
in the environmental report (ER) provisions of its application to construct and
operatea10C.F.R. Part72independentspentfuelstorageinstallation(ISFSI),the
potentialimpactof construction,operation,anddecommissioningof the proposed
facility, as well as the effects of transportation of spent fuel to that facility, on
the ecology and species in the region surroundingits proposedSkull Valley, Utah
site. The NRC Staff supports the PFS summary disposition request, while the
State, responding to only a portion of the PFS statement of material facts not in
dispute submitted in support of its dispositive motion, opposes only the part of
the request relating to the impact on the habitat of the peregrine falcon.
For the reasons set forth below, the Licensing Board grants the PFS request
for summary disposition except insofar as it relates to the peregrine falcon.
232
I. BACKGROUND
In June 1997, PFS filed a license application for its proposed ISFSI, which
includedan ER that addressedthe environmentalimpactsof the proposed facility.
Inresponsetothisapplication,theStatefiledanumberofcontentionschallenging,
among other things, the impact the proposed facility would have upon the
surroundingregion. Includedamong these was contentionUtah DD, which reads:
The Applicant has failed to adequately assess the potential impacts and effects from the
construction, operation and decommissioning of the ISFSI and the transportation of spent fuel
on the ecology and species in the region as required by 10 C.F.R. §§72.100(b) and 72.108 and
[the National Environmental Policy Act of 1969 (NEPA)] in that the License Application has
not estimated potential impacts to ecosystems and ‘‘important species’’ as follows:
1. TheLicense Application fails toaddress all possible impacts onfederally endangered
or threatened species, specifically the peregrine falcon nest in the Timpie Springs
Waterfowl Management Area.
2. The License Application fails to include information on pocket gopher mounds
which may be impacted by the proposal.
3. TheLicense Application has notadequately identified plant species that areadversely
impacted or adequately assessed the impact on those identified, specifically the
impact on two ‘‘high interest’’ plants,Pohl’s milkvetch and spring parsley.
4. The License Application does not identify, nor assess the adverse impacts on, the
private domestic animal (livestock) or the domestic plant (farm produce) species in
the area.
LBP-98-7, 47 NRC 142, 256-57,aff’d on other grounds,CLI-98-13, 48 NRC 26
(1998).1 Subsequenttoitsadmission,theBoardnotedin responsetoaPFSrequest
for clarification that the scope of contention Utah DD relative to paragraphs one
and three was limited to the specific species identified.See LBP-98-10, 47 NRC
288, 296-97 (1998).
In June 2000, the Staff issued its draft environmentalimpact statement (DEIS)
regarding the proposed PFS facility.See Draft Environmental Impact Statement
for the Construction and Operation of an Independent Spent Fuel Storage
Installation on the Reservation of the Skull Valley Band of Goshute Indians
and the Related Transportation Facility in Tooele County, Utah, NUREG-1714
(June 200) [hereinafter DEIS]. As relevant to this motion, the DEIS contained
discussionassessing the ecologicalimpactofconstruction,decommissioning,and
1 Although the Board initially consolidated a similar portion of contention Castle Rock 16, Impacts on Flora,
Fauna, and Existing Land Uses, with contention Utah DD,see LBP-98-7, 47 NRC at 206, 221, when the parties
sponsoring Castle Rock 16 subsequently withdrew, the Board ruled that their withdrawal did not affect the viability
of contention Utah DD as admitted.See LBP-99-6, 49 NRC 114, 118 (1999).
233
operation of the proposedISFSI on the vegetation and wildlife of the surrounding
region.See id.§§3.4, 4.4, 5.4.
Relying principally on the DEIS information, PFS filed the instant motion,
supportedby a statement of material facts notin dispute, claiming a genuineissue
of material fact does not exist with respect to the concerns raised by the State
in contention Utah DD. PFS alleges that because each paragraph of contention
Utah DD has been adequately addressed by either the ER or the DEIS, the State’s
claims ‘‘have been rendered moot by the DEIS.’’ [PFS] Motion for Summary
Disposition of Utah Contention DD — Ecology and Species (June 29, 2001) at 2
[hereinafter PFS Motion]. With its motion, PFS also included declarations from
four experts asserting that the impacts the State claims have not been assessed
adequatelyby either the ER or the DEISare in fact‘‘negligibleor non-existent.’’
2
Id.at 2.
On July 19, 2001, in response to the PFS summary disposition motion, the
StaffdeclareditssupportforthePFS request. Initsresponse,the Staffagreeswith
the statement of material facts submitted by PFS (subject to slight modification
by Staff experts) and asserts that the DEIS has adequately addressed all of the
State’s concerns voiced in contention Utah DD.See NRC Staff’s Response to
[PFS] Motion for Summary Disposition of Utah Contention DD — Ecology and
Species(July19,2001)[hereinafterStaffResponse];id.Attach.A(JointAffidavit
of Martha S. Salk and Clay E. Easterly Concerning Utah Contention DD). The
Staff submits that the issues raised by contention Utah DD have been adequately
addressed in the DEIS so that contention Utah DD no longer presents a genuine
dispute of material fact that requires further consideration in an evidentiary
proceeding.3
In its response,
4 although opposing the PFS motion, the State challenges the
material facts submitted by PFS only with respect to paragraph one of contention
Utah DD.See State of Utah’s Opposition to Applicant’s Motion for Summary
Disposition of ContentionUtah DD— Ecologyand Species (July 19, 2001)at 3-5
[hereinafter State Response]. With respect to paragraphs two through four, the
State has decided, after reviewing the relevant material, not to respond to those
portions of the PFS motion and the corresponding statement of material facts not
in dispute.See id.at 2. In support of its response relevant to paragraph one,
however, the State includes a statement of disputed and relevant material facts
and the affidavit of Dr. Frank P. Howe, the nongame avian program coordinator
2 There have been no objections by PFS, the Staff, or the State to the qualifications or expertise of the various
affiants whose statements are relied upon to provide support for other parties’ assertions regarding whether any
material factual matters are at issue in connection with contention Utah DD.
3 In its response, the Staff notes that PFS has included ‘‘certain information’’ that was not available to the Staff
when they prepared the DEIS; however, the Staff believes that after reviewing the information, the Staff’s findings
in the DEIS remain unchanged. Staff Response at 7 n.10.
4 Although able to do so,see 10 C.F.R. §2.749(a), the State did not file a reply to the Staff’s response supporting
the PFS summary disposition motion regarding contention Utah DD.
234
for the Utah Division of Wildlife Resources, Department of Natural Resources.
See id.[State] Statement of Disputed and Relevant Material Facts;id.Exh. 1
(Declaration of Frank P. Howe, PHD) [hereinafter Howe Declaration].
II. DISCUSSION
A. Legal Standard for Summary Disposition
In an NRC proceeding, a party is entitled to summary disposition if the
presiding officerdetermines that there exists ‘‘nogenuine issue as to any material
fact and that the moving party is entitled to a decision as a matter of law.’’
10 C.F.R. §2.749(d). When reviewing a motion for summary disposition, the
Commission has used standards similar to those used by the federal courts when
ruling on motions for summary judgment under Rule 56 of the Federal Rules of
CivilProcedure.SeeAdvancedMedicalSystems, Inc.(OneFactoryRow, Geneva,
Ohio 44041), CLI-93-22, 38 NRC 98, 102-03 (1993).
Consistent with Rule 56, the moving party bears the initial burden of showing
that no genuine issue as to any material fact exists, which the party must do by a
required statement of material facts and any supporting documentationsubmitted
with the requisite motion.See Private Fuel Storage, L.L.C.(Independent Spent
Fuel Storage Installation), LBP-99-32, 50 NRC 155, 158 (1999). The opposing
partymustcountereachadequatelysupportedmaterialfactwithits ownstatement
of material facts in dispute and supporting documentation, or the facts will
be deemed admitted.See CLI-93-22, 38 NRC at 102-03. When responding,
the opposing party may not rely upon mere allegations or denials but must
submit ‘‘specific facts showing that there is a genuine issue of fact.’’
5 10 C.F.R.
§2.749(b).
With this precedentin mind,the Boardaddressesthe PFS summarydisposition
motionregardingcontentionUtah DD, in which the Applicanthas addressedeach
of the four paragraphs separately. We adopt this construct below in reviewing
the PFS assertions regarding the propriety of granting its summary disposition
request.
B. Board Ruling
1. Paragraph One
PFS responds to the State’s claim that it has failed adequately to assess all
possible impacts of the proposed site on the peregrine falcon nest in the Timpie
5 Even if an opposing party fails to respond to a dispositive motion, the movant must still have established that no
genuine issue of material fact exists so that it is entitled to a ruling in its favor.See Cleveland Electric Illuminating
Co.(Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753-54 (1977).
235
SpringsWaterfowlManagementarea by stating thatthe ER and subsequentDEIS
address all of the legitimate concerns raised and substantiated by the State. In
particular, PFS states that the areas of potential impacts raised by the State during
discoverywereadequatelyaddressedin theDEISandweredeemedinsignificant.
6
Furthermore,PFScontendsthattheState’sexpertwitnessofferedonlyspeculative
statements and was unable factually to demonstratehow the ISFSI would have an
adverse impact upon the peregrine falcon nest.See PFS Motion at 7.
Focusing on the impact of the increased traffic flow caused by the operation of
the proposed facility, PFS notes that the potential increased traffic is addressed in
theDEIS,whichfindsthattheincreasedtrafficwillnotcauseasignificantincrease
in the probability of direct falcon vehicular fatalities. PFS also contends that the
evidenceprovidedby the State’s experton vehicle-falconand vehicle-falconprey
species collisions was unsubstantiated speculation.See id.at 9. In contrast, PFS
relies upon the affidavit of its own expert, Dr. Clayton M. White, who points
out that vehicle-caused fatalities would be unlikely and the likelihood would not
increase due to the PFS traffic.See id.Attach. A at 12 (Declaration of Clayton M.
White) [hereinafter White Declaration]. Thus, PFS believes the minimal increase
in traffic caused by the new ISFSI plant will not have a negative effect upon the
falcons.See PFS Motion at 9.
Finally, PFS asserts that the constructionand operationof the proposedfacility
will not affect the habitat of peregrine falcon prey species. According to PFS,
the DEIS adequately addresses the potential loss of foraging area and the effect
this loss might have upon raptors in general and peregrine falcons in particular.
See PFS Motion at 11 (citing DEIS §§4.4.3.2, 5.4.1.2, 5.4.2.2). In addition, Dr.
White states that the preyhabitat potentiallyaffectedby the site representsa small
portion of likely foraging area for the falcons, who prefer the nearby wetlands
with its higher prey density.See White Declaration at 16-17, 19.
InitsresponsetothePFSmotion,theStafffullysupportstheconclusionsdrawn
by PFS and its experts. The Staff asserts that regardless of State’s assessment of
the license application, the Staff’s DEIS fully addresses the concerns of the State
in paragraph one of contention Utah DD, therefore ‘‘rendering moot any alleged
deficiency in PFS’s license application.’’ Staff Response at 8.
In its response to the PFS motion, the State acknowledges that PFS in its
motion ‘‘does improve the record’’ by introducing new information about the
proposed site’s impact upon the neighboring peregrine falcons. State Response
at 3. However, the State asserts that PFS and the DEIS still fail to assess fully
two important factors that the State believes may have a significant impact upon
6 In its motion, PFS lists four potential impacts it asserts the State believes PFS did not adequately address in its
ER: the impact of increased traffic upon the falcons; the impact of such traffic on falcon prey species; the impact of
a loss of habitat on the falcon’s prey species; and the impact of radiation exposure on the falcon’s prey species.See
PFS Motion at 7.
236
the peregrine’s nest site. First, neither PFS nor the DEIS consider the possible
increase or decrease in the water level of the Great Salt Lake (GSL) and the effect
such a change in condition will have upon the falcon’s wetland prey species.See
id.at 3-5. Inthisregard,theState contendsthata rise in theGSL water levelcould
forcethe falcon’swetland preyspeciesinland to search forfood,which mayforce
the falcon to shift its foraging patterns closer to nearby Interstate 80. The State
asserts that such a shift may increase the risk of vehicle collisions, an increase
that both the DEIS and PFS expert Dr. White fail to address. Also, according to
the State, the increased PFS activity could lead to wildfires destroyinginland bird
habitat that, in turn, could affect the peregrine falcon if a GSL level shift causes
the falcon to rely upon inland birds as prey.See id.at 5.
In addition, State’s expert Dr. Howe in a supporting affidavit contends that
for PFS to characterize the Timpie Springs Wildlife Management Area nest site
as successful is too optimistic.See id.;id.Howe Declaration at 3-4. Dr. Howe
contends that the Timpie Springs falcon’s nesting site has a significantly higher
rate of failure than other nesting sites in the GSL area, which he attributes to
disruptions from the nearby salt processing plant.
7 See Howe Declaration at 4.
The State believes any additional activity caused by the PFS site could have
a significant impact upon the falcon as well, a notion the State claims is not
addressed by either PFS or the DEIS.See State Response at 5.
After reviewing the submissions of each party, the Licensing Board concludes
therestill remainsagenuinedisputeaboutsomematerialfactualmattersregarding
the peregrine falcon in connection with paragraph one of contention Utah DD.
As articulated by PFS, the published DEIS for its proposed ISFSI has assessed
a substantial portion of the State’s initial concerns; nonetheless, the State’s
response, as supported by the declaration of Dr. Howe, has adequately identified
two areas of concern that remain unresolved. The first involves the impact of
facility-relateddisturbancesonthebreedingsuccessoftheperegrinefalconsatthe
Timpie Springs nesting tower, an important consideration underlying arguments
made by both PFS and the State. Additionally,there is a factualdispute relative to
the impact a change in the water level of the GSL may have upon the falcon and
its prey species relative to increased risk of vehicle collisions. Specifically, still
unresolved is the effect of a possible GSL water level change upon falcon traffic
fatalities as a result of a change in falcon feeding patterns along Interstate 80.
8
7 In his affidavit, Dr. Howe notes that the falcons have not bred at the Timpie Springs site in 4 out of the last 13
years or roughly 30% of the time. Dr. Howe contrasts that with neighboring sites that have a 100% success rate, a
difference Dr. Howe believes may be caused by the nearby salt processing plant.See Howe Declaration at 4.
8 Although PFS has labeled as ‘‘speculative’’ certain deposition statements by State affiant Dr. Howe regarding
the potential impact of the proposed PFS facility upon the peregrine falcons in the area,see PFS Motion at 7, 9,
its motion does not address the degree to which the asserted GSL level-related habitat changes could be considered
‘‘remote and speculative’’ under NEPA during the proposed facility’s potential operational term.
237
Because the State has shown a genuine dispute of material fact relative to
these two matters, PFS has not met the burden required to entitle it to summary
disposition in its favor regarding paragraph one of contention Utah DD, thereby
making these items an appropriate subject for further evidentiary presentations.
9
2. Paragraph Two
InresponsetotheState’sparagraphtwoassertionthatPFShasfailedadequately
to address the impact the proposed ISFSI site will have upon the surrounding
pocket gopher population, PFS declares that sections 4.4.1.2, 4.4.5.2, 5.4.1.5,
and 5.4.4.2 of the DEIS specifically address this concern and establish that the
potential impact will be insignificant.See PFS Motion at 12. PFS, in fact,
maintains that its proposed revegetation plan may provide a more suitable habitat
for the pocket gophers. PFS also contends that the operational effect of the
ISFSI upon the pocket gopher population, particularly the increase of traffic flow
through their habitat, has been adequately addressed by the DEIS. PFS claims
that the increased traffic flow will not have a significant impact upon the gopher
population because pocket gophers reside in underground burrows and rarely
venture to the surface, making it unlikely they will experience an increase in
fatalities due to a traffic flow increase.See id.Attach. B at 11-12 (Declaration of
Clyde Pritchett) [hereinafter Pritchett Declaration].
Going beyond what appears in the DEIS, PFS expert Pritchett, an associate
professorof zoologyat Brigham YoungUniversity, hasconducteda surveyof the
areas that will be affected by the proposed ISFSI construction and found eleven
active gopher mounds.See PFS Motion at 12. Pritchett concludes that due to the
large population of pocket gophers in Skull Valley, even if any burrow damage
was not mitigated as proposed by PFS, the destruction of those eleven burrows
would not have a significant impact upon the overall Skull Valley pocket gopher
population.See Pritchett Declaration at 11.
Because neither the construction nor the operation of the proposed site will
have a significant impact upon the pocket gopher population, PFS contends, no
environmental impacts will be sustained on that basis. Thus, PFS maintains that
paragraph two of contention Utah DD is moot. This assertion is supported by the
Staff and not refuted by the State.See Staff Response at 9; State Response at 2.
Aswas notedearlier, the State hasnotrespondedto these PFS claimsorsought
to demonstrate the existence of material facts in dispute. Our own review of the
PFS submissions leads us to conclude that PFS has met its burden of proving that
9 Although the State also sought to establish a material factual dispute regarding the impacts of a GSL level
change in conjunction with facility-related wildfires,see State Response at 5, its only apparent support for the
assertion that such facility-related (as opposed to naturally occurring) wildfires will take place was Dr. Howe’s
assertion/assumption to that effect. That subject matter, however, clearly is outside his area of expertise.
238
no genuine issue of material fact exists and so is entitled to summary disposition
relative to paragraph two of contention Utah DD.
3. Paragraph Three
With respect to paragraph three of contention Utah DD, which states that PFS
failed to address adequately the impact of the proposed project upon two plant
species — Pohl’s milkvetch and small spring parsley — PFS asserts there is
no material factual dispute because subsequent evidence demonstrates that the
construction and operation of the proposed facility will have no adverse impact
upon these two plant species. According to PFS, three surveys conducted by PFS
expert Dr. Ronald Kass failed to locate either Pohl’s milkvetch or small spring
parsley in the areas designated for the ISFSI project.See PFS Motion, Attach.
C at 8-9 (Declaration of Ronald J. Kass) [hereinafter Kass Declaration]. Kass
also stated that no suitable habitat for the small spring parsley existed anywhere
in the proposed site and the habitat found suitable for the Pohl’s milkvetch was
‘‘overgrown with invasive annuals, whose presence inhibits the establishment
of species such as the Pohl’s milkvetch.’’ PFS Motion at 13. In addition, if
any subsequent populations of either plant species are found, PFS proposes to
minimize the damage caused by its proposed facility through a mitigation plan
outlined in the DEIS.See PFS Motion at 14 (citing DEIS §§4.4.3.1, 4.4.5.1,
9.4.2).
The Staff again supports this PFS conclusion and declares that the DEIS
adequately addresses the concerns raised by the State in paragraph three of
contentionUtah DD.See Staff Response at 10. The State has not come forwardto
challenge the PFS statement of material facts concerning these two plant species.
See State Response at 2.
Based uponourreviewof the unrefuted statement offacts submittedin support
of the PFS motion, PFS has met its burdenof demonstratingthat no material facts
are at issue and is entitled to summary disposition regarding paragraph three of
contention Utah DD.
4. Paragraph Four
PFS argues in its motion that it has adequately addressed the possible
radiological impacts of the proposed ISFSI on domestic animal and plant species,
making the State’s assertion that it failed to address this issue in its ER moot. In
this regard, PFS states that the ER and DEIS contain a radiological analysis of
the proposed facility and document dose rates for exposure of wildlife at various
points inside and outside of the facility. According to PFS, as the DEIS now
outlines, the maximum potential dose rates for humans or animals at any of these
239
various points is within acceptable limitations established by the NRC.See PFS
Motion at 14-15 (citing DEIS §4.4.2.2). Furthermore, PFS declares that the
insignificant radiologicalimpact of its facility is demonstratedby the existence of
many places worldwide where humans and animals are exposed to significantly
higher backgroundradiation without detectable adverse effects.See id.Attach. D
at 7 (Declaration of Robert J. Hoffman) [hereinafter Hoffman Declaration].
For its part, the Staff supports the PFS motion in this regard and contends that
the DEIS adequately addresses the issues raised by the State in paragraph four of
contention Utah DD.See Staff Response at 11. The State does not refute the PFS
statements of material fact not in dispute.See State Response at 2.
Once again, based on our review of the unrefuted submission of PFS, the
Licensing Board concludes that PFS has met its burden of proving there is no
genuine issue of material fact and so is entitled to summary disposition regarding
paragraph four of contention Utah DD.
III. CONCLUSION
Because the State has established the existence of a material factual dispute
relative to those aspects of paragraph one of State NEPA-related contention
Utah DD, Ecology and Species, regarding the impact of (1) PFS facility-related
disturbances on the breeding success of the peregrine falcons at the Timpie
Springs nesting tower; and (2) a change in the water level of the GSL upon the
falcon and its prey species relative to any increased risk of vehicle collisions with
falconsalongInterstate 80, we deny these aspectsof the PFS requestfor summary
disposition regarding that contention. In all other respects, however, we conclude
that there are no material factual issues in dispute pertaining to contention Utah
DD and that, as a matter of law, the other portions of contention Utah DD are
resolved in favor of PFS.
240
For the foregoing reasons, it is this thirtieth day of October 2001, ORDERED,
that as is outlined in section II above, the June 29, 2001 PFS motion for summary
disposition of contention Utah DD is granted in part and denied in part.
THE ATOMIC SAFETY AND
LICENSING BOARD
10
G. Paul Bollwerk, III, Chairman
ADMINISTRATIVE JUDGE
Jerry R. Kline
ADMINISTRATIVE JUDGE
Peter S. Lam
ADMINISTRATIVE JUDGE
Rockville, Maryland
October 30, 2001
10Copies of this Memorandum and Order were sent this date by Internet e-mail or facsimile transmission to (1)
Applicant PFS; (2) Intervenors Skull Valley Band of Goshute Indians, Ohngo Gaudadeh Devia, Confederated Tribes
of the Goshute Reservation, Southern Utah Wilderness Alliance, and the State; and (3) the Staff.
241
Cite as 54 NRC 242 (2001)LBP-01-31
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD PANEL
Before Administrative Judges:
Ann Marshall Young,Chair
Dr. Charles N. Kelber
Lester S. Rubenstein
In the Matter of Docket Nos. 50-369-LR
50-370-LR
50-413-LR
50-414-LR
(ASLBP No. 02-794-01-LR)
DUKE ENERGY CORPORATION
(McGuire Nuclear Station, Units 1 and 2;
Catawba Nuclear Station, Units 1
and 2) October 31, 2001
In this license renewal application proceeding, the Licensing Board granted
a Petitioner’s Motion To Extend the time for filing amended and supplemented
petitions, based upon the Board’s finding that the basis for the motion, the
unavailability of the NRC public Web site and various documents formerly
availablethere, fitthe‘‘unavoidableandextremecircumstances’’guidelinestated
by the Commission in its referral order.
RULES OF PRACTICE: EXTENSIONS OF TIME (FILING
AMENDED AND SUPPLEMENTED PETITIONS)
The unavailability of documents formerly available on the NRC public Web
site, stemmingfromthe terroristactsofSeptember11, 2001,constitutessufficient
‘‘unavoidableandextremecircumstances’’forextendingthetimeperiodforfiling
242
amended and supplemented petitions,under the standard set by the Commission
in its referral order, CLI-01-20, 54 NRC 211, 215-16 (2001); and its Statement
of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 21
(1998).
RULES OF PRACTICE: EXTENSIONS OF TIME (FILING
AMENDED AND SUPPLEMENTED PETITIONS)
Granting an extension based on the unavailability of documents that were
previously available to utilize in preparing and supporting contentions and bases
is not equivalent to granting discovery of the documents, nor does a discovery
standard apply in this instance; the situation is more comparable to that of
having a research library closed based on unexpected, unavoidable, and extreme
circumstances, to an unpredictable extent, thereby seriously handicapping a
petitioner’s ability to do research using a broad array of materials as necessary
to draft and support contentions under the heightened requirements of 10 C.F.R.
§2.714(b)(2),(d)(2).
MEMORANDUM AND ORDER
(Granting Motion To Extend Time and Resetting Deadlines and
Schedule for Proceedings)
1. This proceeding involves the application of Duke Energy Corporation
(Duke) to renew the operating licenses for its McGuire Nuclear Station, Units 1
and 2, and Catawba Nuclear Station, Units 1 and 2, for additional20-yearperiods
commencing in 2021, 2023, 2024, and 2026, respectively. Petitions to intervene
and requests for hearing have been filed by Nuclear Information and Resource
Service (NIRS) and the Blue Ridge Environmental Defense League (BREDL).
Petitioner NIRS filed, on October 29, 2001, a Motion To Extend Time for filing
its amended and supplemented petition and contentions, based upon the recent
unavailability of the NRC public Web site. On October 30, 2001, a telephone
conference was held
1 to address NIRS’ motion and hear responses to the motion
1 The October 30, 2001, telephone conference was scheduled in a Memorandum and Order issued October 25,
2001, after the Board’s receipt of NIRS’ notification of that same date that it intended to file its motion on October
29, and of a copy of BREDL’s October 23, 2001, Petition To Dismiss Licensing Proceeding or, in the Alternative,
Hold it in Abeyance, relating to this proceeding. Memorandum and Order (Regarding Filing of Documents with
Licensing Board, and Telephone Conference on Motion for Extension) (Oct. 25, 2001) (unpublished). We note that
BREDL’s petition also refers to the NRC public Web site unavailability, but we do not address this petition, given
that it was filed with and is directed to the Commission.As indicated in paragraph 1 of this Memorandum and
Order, BREDL did not appear at the October 30 conference (after receiving notice of it via e-mail of the October 25
Memorandum and Order), but, as further indicated herein, BREDL and all participants in this proceeding will be
held to the deadlines set forth herein, absent the granting of BREDL’s Petition by the Commission.
243
on an expedited basis, in order to ensure compliance with the Commission’s
guidance on the schedule for this proceeding as stated in its Order Referring
Petitions for Intervention and Requests for Hearing to the Atomic Safety and
Licensing Board Panel.See Duke Energy Corp.(McGuire Nuclear Station, Units
1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-01-20, 54 NRC 211,
214-16 (2001) [hereinafter McGuire]. Present for the conference in addition to
the Board were Mary Olson on behalf of NIRS; Duke counsel David Repka, Ann
Cottingham, and Lisa Vaughn, along with Bob Gill and Bill Miller of Duke; and
Susan Uttal and Antonio Fernandez, counsel for the NRC Staff. BREDL did not
appear at the conference.
2. After hearing the arguments of counsel and/or representatives for all
participantswho were present, and based uponcircumstancessummarizedbelow,
the Board granted the Motion To Extend Time to the following extent:
A. The deadline for both Petitioners to file their amended and supplemented
petitions is extended 3 weeks, from November 6 to no later than
November 27, 2001.
B. The deadline for the Applicant and Staff to file their responses to the
Petitioners’ amended and supplemented petitions is extended 3 weeks,
from November 20 to no later than December 11, 2001.
C. The prehearing conference to hear oral argument on standing and the
contentions filed by the Petitioners is rescheduled from the week of
November 26, three weeks forward, to December 18 and 19, 2001,to
be held in the vicinity of the Applicant’s facilities. At a later date, all
participants will be notified of the exact location of this conference,along
with a more specific schedule for the conference and appropriate time
limits for argument, as necessary.
D. The deadline for issuance of the Board’s decision on standing and
contentionsisalso extended3weeks fromtheoriginaldeadlineof90days
from the Commission’s October 4, 2001, referral order (i.e., January 2,
2002) to January 23, 2002.
E. Another telephone conference (contact information to be provided via
e-mail on November 6), for the purpose of discussing the status of the
case and ofeffortsto obtainand/orprovideaccess to documentsneededto
prepare contentions and bases, will be held on Wednesday, November 7,
2001, at 9:30 a.m. Eastern Time.Prior to this conference, the participants
shall continue to work together in a good faith effort to see that all
documents are made available insofar as possible, and shall be prepared
at the conference to address appropriate ways of resolving any remaining
disputes that may exist between the Petitioners, Duke, and the Staff, with
regard to any documents.
244
3. We grant the Motion To Extend Time based upon the following
circumstances: First, we find the basis for the motion, the unavailability to
the public,includingNIRS, of the NRC Web site and variousdocumentsformerly
available there, to fit the ‘‘unavoidable and extreme circumstances’’ guideline
stated by the Commission in its referral order.See McGuire,CLI-01-20, 54 NRC
at 215-16;see also Statement of Policy on Conduct of Adjudicatory Proceedings,
CLI-98-12, 48 NRC 18, 21 (1998). The unavailability of the NRC Web site
and/or portions thereof stems from the terrorist acts of September 11, 2001, and
the need thereafter to ensure that no information on the NRC public Web site
contains security-sensitive information.This necessarily resulted in restricting
public access to documents formerly found on or through the Web site, and we
find this situation — which commenced when the Web site was taken down on
October 11, 2001, after the Commission issued its October 4 referral order —
to be a clearly extreme and unavoidable circumstance for all persons concerned,
including Petitioner NIRS.
4. We note Duke’s opposition to the motion, based largely on the prior
availability of various of the documents to which NIRS wishes to have access,
as well as on the asserted lack of relevance of certain of the documents in
question. We note also, however, the Staff’s agreement that an extension of
3 weeks, which is approximately equivalent to the time period during which
the Generic Environmental Impact Statement on License Renewal (GEIS-LR)
was unavailable to Petitioner NIRS, would be appropriate in light of such lack
of access. We note as well the circumstance, as discussed in the October 30
conference, that downloading and/or printing various documents, including the
GEIS-LR,inanticipationthattheNRC publicWebsite wouldbe takendown,was
not reasonable in this instance. Moreover,the prior availability on the Web site of
varioushistoricalandindexedinformationhelpfultothesortofresearchneededto
prepare contentions and bases therefor, the current absence of which was pointed
out by Ms. Olson, coupled with the apparent unavailability to the public until
recentlyof access to the AgencywideDocumentAccess andManagementSystem
(ADAMS) and/or many documentsfound in ADAMS, supports a conclusion that
some relief is warranted in this instance.
5. Granting this extension of time, based on the unavailability for various
periods of time of documents that were previously available to Petitioner NIRS
to utilize in preparing and supporting contentions and bases, is not, as Duke in
effectargues, equivalentto granting NIRS discoveryof particular documents,nor
does a discovery standard apply in this instance. We find, rather, the situation
here to be comparable to that of having a research library closed based on
unexpected, unavoidable, and extreme circumstances, to an unpredictable extent,
thereby seriously handicapping the Petitioner’s ability to do research using a
broad array of materials as necessary to draft and support contentions under the
heightened requirements of 10 C.F.R. §2.714(b)(2), (d)(2). As indicated above,
245
it appears the participants are making an effort to work cooperatively to ensure
that Petitioner NIRS has access, as much as possible, to all information it would
otherwise have had prior to the closing of the ‘‘library’’ of the NRC public Web
site. We commendall participantson this, and urge such cooperationas well with
regard to BREDL’s preparation of its supplemented and amended petition and
contentions. In this connection, we note that neither Duke nor the Staff object to
including BREDL in the new, extended deadline for the filing of supplemented
and amended petitions and contentions, or that for responses thereto, in the
interest of facilitating the expeditious handling of this case by the Board and all
participants in the simplest possible manner.
6. To the degree any security concerns may become a matter of significance
aftereffortstofindalternativestoanysecurity-sensitiveinformation(forexample,
monitoring reports to state agencies and licensee event reports, as alternatives
to daily event reports that may not be returned to the Web site for security
reasons), as well as the possible need for protective orders, have been explored
and exhausted, this may at an appropriate time become an appropriate question
for certification to the Commission, as directed in the Commission’s referral
order regarding novel legal or policy questions that arise in making rulings on
contentions. CLI-01-20,54NRCat213. Finally,shouldanyinformationcurrently
unavailable later become available, it may be appropriateat such time to consider
late-filed contentions, under the criteria set forth at 10 C.F.R. §2.714(a), (b).
7. In conclusion, we find the circumstances summarized in the previous
paragraphs to constitute sufficient unavoidable and extreme circumstances to
grant an extension of 3 weeks for the filing of both Petitioners’ supplemented
and amended petitions and contentions, with additional 3-week periods added, as
noted above, to relevant deadlines and dates following thereafter.
It is so ORDERED.
FOR THE ATOMIC SAFETY
AND LICENSING BOARD
2
Ann Marshall Young, Chair
ADMINISTRATIVE JUDGE
Rockville, Maryland
October 31, 2001
2 CopiesofthisOrderweresentthisdatebyInternet e-mailorfacsimiletransmission,ifavailable,toallparticipants
or counsel for participants.
246
Cite as 54 NRC 247 (2001)CLI-01-21
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Nils J. Diaz
Edward McGaffigan
Jeffrey S. Merrifield
In the Matter of Docket No. 40-8681-MLA-9
INTERNATIONAL URANIUM (USA)
CORPORATION
(White Mesa Uranium Mill) November 14, 2001
The Commission denies Intervenor’s appeal of a Licensing Board decision
(LBP-01-15, 53 NRC 344 (2001)) that denied its request for a hearing in this
materials license amendment proceeding.
RULES OF PRACTICE: STANDING TO INTERVENE; MATERIALS
LICENSE AMENDMENTS
To demonstrate standing in a Subpart L materials licensing case, a petitioner
must meet the ‘‘judicial standards for standing.’’ 10 C.F.R. §2.1205(h). The
concept of judicial standing requires a showing of ‘‘(1) an actual or threatened,
concrete and particularized injury, that (2) is fairly traceable to the challenged
action, (3) falls among the general interests protected by the Atomic Energy
Act . . . , and (4) is likely to be redressed by a favorable decision.’’Sequoyah
Fuels Corp.(Gore, Oklahoma Site Decommissioning), CLI-01-2, 53 NRC 9,
13 (2001),citing Quivira Mining Co.(Ambrosia Lake Facility, Grants, New
Mexico), CLI-98-11, 48 NRC 1, 5-6 (1998).
247
RULES OF PRACTICE: STANDING (REPRESENTATIONAL)
For an organization to represent the interests of one of its members (i.e., to
demonstrate representational standing), the organization must show how at least
one of its members may be affected by the licensing action, must identify the
member, and must show that the organization is authorized to represent that
member.See Power Authority of the State of New York (James A. FitzPatrick
Nuclear Power Plant; Indian Point, Unit 3), CLI-00-22, 52 NRC 266, 293 (2000).
RULES OF PRACTICE: MATERIALS LICENSE AMENDMENTS;
STANDING TO INTERVENE
Since a license amendment involves a facility with ongoing operations, a
petitioner’s challenge must show that the amendment will cause a ‘‘‘distinct new
harm or threat’ apart from the activities already licensed.’’See International
Uranium (USA) Corp.(White Mesa Uranium Mill), CLI-01-18, 54 NRC 27
(2001);Commonwealth Edison Co.(Zion Nuclear Power Station, Units 1 and 2),
CLI-99-4, 49 NRC 185, 192 (1999).
RULES OF PRACTICE: INTERVENTION PETITION (PLEADING
REQUIREMENTS)
Conclusory allegations about potential radiological harm from the facility in
general, which are not tied to the specific amendment at issue, are insufficient to
establish standing.See Zion,49 NRC at 192.
RULES OF PRACTICE: STANDING TO INTERVENE; APPELLATE
REVIEW (DEFERENCE TO PRESIDING OFFICER)
Absent an error of law or an abuse of discretion, the Commission generally
defers to the Presiding Officer’s determinations regarding standing.See
International Uranium (USA) Corp.(White Mesa Uranium Mill), CLI-98-6, 47
NRC 116, 118 (1998);Georgia Institute of Technology (Georgia Tech Research
Reactor), CLI-95-12, 42 NRC 111, 116 (1995).
RULES OF PRACTICE: INTERVENTION PETITION (PLEADING
REQUIREMENTS); STANDING TO INTERVENE (INJURY IN FACT);
STANDING (REPRESENTATIONAL)
The Presiding Officer reasonably found that the Group did not show in
enough detail how the proposed license amendment would affect it. Specifically,
the Group showed no discrete institutional injury to itself, other than general
248
environmentalandpolicyinterestsofthesortwerepeatedlyhavefoundinsufficient
for organizational standing.See, e.g., Transnuclear, Inc.(Export of 93.15%
Enriched Uranium), CLI-94-1, 39 NRC 1, 5 (1994);Sacramento Municipal
Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 NRC
47, 59-61 (1992).
RULES OF PRACTICE: APPELLATE REVIEW (ABANDONMENT
OF ISSUE); ISSUES ON APPEAL
Before the Presiding Officer the Group pointed to the potential for an accident
involving the trucks hauling materials to be dumped, stored, and processed at the
White Mesa Mill. But the Group’s appellate brief does not reiterate or explain its
accident theory. Hence, we deem it abandoned.See Public Service Co. of New
Hampshire (Seabrook Station, Units 1 and 2), ALAB-947, 33 NRC 299, 322 &
n.62 (1991).
RULES OF PRACTICE: STANDING TO INTERVENE
Speculation about accidents along feed material’s transport routes does not
establish standing under our case law.See White Mesa, CLI-01-18, 54 NRC at
31-32.
RULES OF PRACTICE: STANDING TO INTERVENE
Judicialstanding jurisprudence,and our own, requires‘‘a realistic threat. . . of
direct injury.’’See SequoyahFuels Corp. and GeneralAtomics (Gore, Oklahoma
Site), CLI-94-12, 40 NRC 64, 74 (1994).Accord Central and South West
Services, Inc. v. EPA,220 F.3d 683, 700-01 (5th Cir. 2000) (collecting cases).
Here, the Group’sclaims rest ‘‘onnothingmorethan unfoundedconjecture.’’See
LBP-01-15, 53 NRC at 351.
MEMORANDUM AND ORDER
Petitioner, the Glen Canyon Group of the Sierra Club (the ‘‘Group’’), has
appealed the Presiding Officer’s decision denying its request for a hearing in this
license amendment proceeding.See LBP-01-15, 53 NRC 344 (2001). We affirm
the Presiding Officer’s decision that the Group has not demonstrated standing.
249
I. BACKGROUND
InternationalUranium(USA)Corporation(‘‘IUSA’’)seekstoamenditssource
material license to receive andprocessup to 17,750tonsof alternatefeed material
at its White Mesa Uranium Mill near Blanding, Utah. The alternate feed material,
from the Molycorp site at Mountain Pass, California, is a result of extraction of
lanthanides and other rare earth metals from bastnasite ores.See ‘‘International
Uranium (USA) Corporation; Notice of Receipt of Request to Process Alternate
Feed,’’ 66 Fed. Reg. 1,702 (Jan. 9, 2001). The material, which is currently being
stored in ponds as lead sulfide sludge, has a uranium content of approximately
0.15% or greater.See id.IUSA proposes to process the material for its uranium
content and dispose of the byproduct material in the mill’s tailings cells.See id.
Approximately sixty to seventy trucks per week will be shipped for a period of
60 to 90 days.See id.The trucks will be lined, covered, aluminum end-dump
trailers.See id.The proposed transportation route for the material will follow
routes I-15 and I-70 to Crescent Junction, Utah, and then south on U.S. Highway
191 to the mill.See id.
Inits petitionforahearinginthismatter,theGroupassertedthatit hasstanding
to participate and described areas of concern.
1 The Presiding Officer permitted
the Group to respond to IUSA’s reply to the hearing request, and conducted a
telephone conference with the parties on April 11, 2001. The Presiding Officer
concluded that the hearing request did not establish Petitioner’s standing to
maintain this action.See LBP-01-15, 53 NRC at 351.
II. DISCUSSION
To demonstrate standing in a Subpart L materials licensing case, a petitioner
must meet the ‘‘judicial standards for standing.’’ 10 C.F.R. §2.1205(h). The
concept of judicial standing requires a showing of ‘‘(1) an actual or threatened,
concrete and particularized injury, that (2) is fairly traceable to the challenged
action, (3) falls among the general interests protected by the Atomic Energy
Act . . . , and (4) is likely to be redressed by a favorable decision.’’Sequoyah
Fuels Corp.(Gore, Oklahoma Site Decommissioning), CLI-01-2, 53 NRC 9,
13 (2001),citing Quivira Mining Co.(Ambrosia Lake Facility, Grants, New
Mexico), CLI-98-11, 48 NRC 1, 5-6 (1998). For an organization to represent the
interestsofoneof itsmembers(i.e., todemonstraterepresentationalstanding),the
organization must show how at least one of its members may be affected by the
licensingaction,mustidentifythemember,andmustshowthattheorganizationis
authorizedtorepresentthatmember.SeePowerAuthorityoftheStateofNewYork
1 Pursuant to 10 C.F.R. §2.1213, the NRC Staff did not participate as a party to this proceeding.
250
(James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3), CLI-00-22, 52
NRC 266, 293 (2000).
Since a license amendment involves a facility with ongoing operations, a
petitioner’s challenge must show that the amendment will cause a ‘‘‘distinct new
harm or threat’ apart from the activities already licensed.’’See International
Uranium (USA) Corp.(White Mesa Uranium Mill), CLI-01-18, 54 NRC 27
(2001);Commonwealth Edison Co.(Zion Nuclear Power Station, Units 1 and
2), CLI-99-4, 49 NRC 185, 192 (1999). Conclusory allegations about potential
radiological harm from the facility in general, which are not tied to the specific
amendment at issue, are insufficient to establish standing.See Zion,49 NRC at
192.
The Group focuses on two portions of the proposed activity: (1) transportation
of the Molycorp material to the mill; and (2) storage, after processing, of the
materialin the mill’s tailingscells. Transportationallegedlywill generateharmful
dust, as will the material’s storage and processing at the site. In addition, the
material allegedly will contaminate groundwater near the site.
In support of standing, the Group states that it has an interest in state and
federal environmental laws and in the land, water, air, wildlife, and other natural
resources that would be affected by the license amendment. Further, the Group
has members who live in the communities allegedly affected by the license
amendment and who engage in work or recreational activities in the vicinity of
the White Mesa Mill.See ‘‘Sierra Club Request for a Hearing and Petition for
Leave to Intervene’’ at 3 (Feb. 7, 2001).
With its petition to intervene, the Group submitted a sworn declaration of a
member, Herb McHarg, and an affidavit by an hydrology expert, Loren Morton.
Mr. McHarg says thathe resides‘‘justoff’’ Highway191approximately25 miles
from the Mill, that his employment requires him to drive Highway 191 on a
daily basis, frequently past the White Mesa Mill, and that he bikes and walks
frequently on Highway 191 near the White Mesa Mill.See ‘‘Declaration of W.
Herbert McHarg,’’ ¶¶2-4 (Feb. 7, 2001). He states that, in the past, dust from
transport trucks and dust plumes coming from the White Mesa site have blown
into the windows of his vehicle, onto his face and body, and into his eyes, nose,
and mouth.See id.¶3. Such materials injure him, he says, as they have cracked
his windshield, and the dust immediately irritates his skin, eyes, and nose.See id.
Mr. McHarg believes that the dust is harmfulto his health and the environmentin
the long term.See id.Mr. McHarg also states that he drinks from waters that he
believes may be affected by the materials subject to this amendment.See id.¶4.
The Group’s hydrology expert concludes that ‘‘there is a significant potential for
undetected seepage discharge from the IUSA tailings cells to groundwater.’’See
‘‘Affidavit of Loren Morton,’’ ¶11 (Aug. 18, 1998). The Group maintains that
Mr. McHarg’s statement that he would be injured by the Molycorp feed material
251
is reasonable considering the hazardous nature of the material — lead sulfide
sludge — and its potential migration off the site.
ThePresidingOfficerconcludedthatthe license amendment,if granted,would
not ‘‘break entirely new ground.’’See LBP-01-15, 53 NRC at 350. Of ‘‘pivotal
significance,’’in hisview, was the Group’sfailureto show thatcurrentlylicensed
activities at the mill have caused seepage into the groundwater in the past or
that activities to be authorized by the instant license amendment would create
a greater likelihood of such contamination in the future.See id.As for the
Group’s ‘‘dust’’ claims, the Presiding Officer stressed that lead sulfide sludge
will be wet and thus less likely to generate dust than previously licensed alternate
feed materials.See id.He deemed the Group’s claim that the proposed license
amendment might cause incremental harm to rest on ‘‘unfounded conjecture.’’
See id.at 351. Accordingly, he denied standing to the Group.
The Presiding Officer noted disagreement between the parties on numerous
merits-based issues, such as an allegation that the material may contain ‘‘listed’’
hazardous waste,
2 the Group’s request that an environmentalimpact statement be
prepared to satisfy the National Environmental Policy Act of 1969 (‘‘NEPA’’),
and the Group’s allegation of sham processing of the Molycorp alternate feed
material.See id.at 348. He declined to address these questions because he found
no threat of injury-in-fact.See id.
Absent an error of law or an abuse of discretion, the Commission generally
defers to the Presiding Officer’s determinations regarding standing.See
International Uranium (USA) Corp.(White Mesa Uranium Mill), CLI-98-6,
47 NRC 116, 118 (1998);Georgia Institute of Technology (Georgia Tech
Research Reactor), CLI-95-12, 42 NRC 111, 116 (1995). Here, the Presiding
Officer reasonably found that the Group did not show in enough detail how the
proposed license amendment would affect it.See LBP-01-15, 53 NRC at 348.
Specifically, the Group showed no discrete institutional injury to itself, other than
general environmental and policy interests of the sort we repeatedly have found
insufficient for organizational standing.See, e.g., Transnuclear, Inc.(Export
of 93.15% Enriched Uranium), CLI-94-1, 39 NRC 1, 5 (1994);Sacramento
Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2,
35 NRC 47, 59-61 (1992).
The Group fares no better insofar as it seeks ‘‘representational’’ standing on
behalf of its members. The Group did submit a sworn declaration by a member,
Mr. McHarg, who claims possible injury from contaminated groundwater or
from blowing dust, and an affidavit from an expert, Mr. Morton, concerning
‘‘undetected seepage’’ into groundwater. But neither Mr. McHarg nor Mr.
Morton outlines a pathway or mechanism for leachate from the tailings piles to
2 Hazardous wastes are identified and ‘‘listed’’ in 40 C.F.R. Part 261 pursuant to authority delegated to the
Administrator of the Environmental Protection Agency in 42 U.S.C. §6921.
252
contaminatewater Mr. McHarg or other Groupmembersdrink. Any groundwater
impact from the Molycorp feed material is unlikely since the material will be
placed on a concrete pad that will be bermed to contain moisture. In addition,
because the Molycorp material will serve as feed for only a short duration, its
contributionto anyleachate fromthe tailings piles will be slight. Moreover,as the
Presiding Officerheld, the wet sludge natureof the Molycorpmaterialrendersthe
Group’s ‘‘dust’’ concerns implausible.
3 Judicial standing jurisprudence, and our
own, requires ‘‘a realistic threat . . . of direct injury.’’
4 Here, the Group’s claims
rest ‘‘on nothing more than unfounded conjecture.’’See LBP-01-15, 53 NRC at
351.
Before the Presiding Officer the Group pointed to the potential for an accident
involving the trucks hauling materials to be dumped, stored and processed at
the White Mesa Mill.See ‘‘Declaration of W. Herbert McHarg,’’ ¶3 (Feb. 7,
2001). But the Group’s appellate brief does not reiterate or explain its accident
theory. Hence, we deem it abandoned.See Public Service Co. of New Hampshire
(Seabrook Station, Units 1 and 2), ALAB-947, 33 NRC 299, 322 & n.62 (1991).
In any event, speculation about accidents along feed material’s transport routes
does not establish standing under our case law.See White Mesa,CLI-01-18, 54
NRC at 31-32.
Contrary to the Group’s view, its allegations do not resemble those the United
States Supreme Court found sufficient for standing in Friends of the Earth, Inc.
v. Laidlaw Environmental Services (TOC), Inc.,528 U.S. 167 (2000). In that
case, it was ‘‘undisputed that . . . unlawful conduct — discharging pollutants in
excess of permit limits — was occurringat the time the complaint was filed’’ and
nearby residents reasonably ‘‘curtailed’’ their use of the affected waterway.Id.
at 184-85. Here, the Group has made no allegations with similar substance and
level of detail.
For the foregoing reasons, we affirm LBP-01-15.
3 The Group does not explain why it or its members reasonably might be expected to suffer injury from dust from
the Molycorp material, given IUSA’s numerous protective measures during the material’s truck transport and during
its onsite storage at White Mesa Mill. These measures include covering the material while in transport and keeping
it wet and giving it priority processing while in onsite storage.
Similarly, the Group’s various references to listed ‘‘hazardous wastes’’ do not substantiate its standing because:
(1) the Applicant has stated that it will not accept feed material containing listed hazardous waste; (2) Molycorp has
certified that the material contains no such wastes; and (3) theapplication contains a detailed protocol, established by
IUSA andacceptableto theState of Utah ina similarcontext involving other alternate feedmaterial, for screeningthe
feed material for listed hazardous wastes.See66 Fed. Reg. at 1702; ‘‘Amendment Request to Process an Alternate
Feed Material from Molycorp at White Mesa Uranium Mill,Source Material License No. SUA-1358,’’ Attachments
3 and 4 (Dec. 19, 2000); LBP-00-11, 51 NRC at 180. The Group offers no explanation why the Molycorp material
nonetheless poses a meaningful risk to its members.
4 See Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 74 (1994).
Accord Central and South West Services, Inc. v. EPA,220 F.3d 683, 700-01 (5th Cir. 2000) (collecting cases).
253
IT IS SO ORDERED.
For the Commission
ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 14th day of November 2001.
254
Cite as 54 NRC 255 (2001)CLI-01-22
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Nils J. Diaz
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket No. 72-22-ISFSI
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) November 14, 2001
DESIGN BASIS: INDEPENDENT SPENT FUEL STORAGE
INSTALLATIONS
The threshold probability for design basis accidents at an Independent Spent
Fuel Storage Installation (ISFSI) is one in a million (1 × 10-6). Events having a
less than a one in one million probability of occurring are not ‘‘credible events’’
and do not have to be taken into account in designing an ISFSI.
DESIGN BASIS: CREDIBLE EVENTS
A facility need not be designed to withstand every conceivable accident, but
only those found to be ‘‘credible.’’See, e.g., Metropolitan Edison Co.(Three
Mile Island Nuclear Station, Unit 2), ALAB-692, 16 NRC 921 (1982).
DESIGN BASIS: INDEPENDENT SPENT FUEL STORAGE
INSTALLATIONS
‘‘The public health and safety risks posed by ISFSI storage . . . are very
different from the risks posed by the safe irradiation of the fuel assemblies in a
255
commercial nuclear reactor, which requires the adequate protection of the public
. . . in the conditions of high temperatures and pressures under which the reactor
operates.’’See Final Rule, Interim Storage of Spent Fuel in an IndependentSpent
Fuel Storage Installation at a Reactor Site; Site-Specific License to a Qualified
Applicant, 60 Fed. Reg. 20,879, 20,883 (April 28, 1995) (response to public
comments). This is because the danger presented by irradiated fuel is largely
determined by the presence of a driving force behind dispersion, such as heat
and pressure, neither of which is present in an ISFSI. Moreover, the radiological
source term is lower at an ISFSI than at a reactor both because the spent fuel has
decayedovertime priorto placementin an ISFSI and because there are fewer fuel
assemblies in an individual cask than in a reactor.
REGULATORY GUIDES: APPLICATION
NUREGs, suchas theStandardReview Plan forthe Reviewof SafetyAnalysis
Reports for Nuclear Power Plants, like all guidance documents, are not legally
binding regulations.See, e.g., International Uranium (USA) Corp.(Request for
Materials License Amendment),CLI-00-1, 51 NRC 9, 19 (2000);Curators of the
University of Missouri,CLI-95-1, 41 NRC 71, 149 (1995).
REGULATORY GUIDES: APPLICATION
Where the NRC develops a guidance document to assist in compliance with
applicable regulations, it is entitled to special weight.See, e.g., Long Island
Lighting Co.(Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC
275, 290 (1988);Consumers Power Co.(Big Rock Point Nuclear Plant), ALAB-
725, 17 NRC 562, 568 (1983).
REGULATORY GUIDES: APPLICATION
Where a Staff guidance document was not drafted for use in evaluating
applications of the type under consideration, then the guidance is persuasive only
insofar as it may bear on distinct questions. Here, for example, the NRC Staff
has appropriately considered the formulas in the Standard Review Plan for the
Review of Safety Analysis Reports for Nuclear Power Plants for calculating air
crash probability, for that methodology pertains regardless of the type of facility
atissue. ButtheStaffwasrighttorefusetousetheStandardReviewPlan’soverall
one in ten million (1 × 10-7) threshold probability for design basis accidents —
which the NRC developedfor reactors, not for facilities like ISFSIs whose failure
would not pose nearly the same radioactive consequences as a reactor failure.
256
MEMORANDUM AND ORDER
In a May 31, 2001 order, the Atomic Safety and Licensing Board referred
to the Commission its ruling on the design standard for accidental aircraft crash
hazards at the proposed independent spent fuel storage installation (ISFSI) site
at issue in this proceeding.
1 In that ruling, the Board found that the facility need
not be designed to withstand aircraft crashes having less than one-in-one-million
(1 × 10-6) annual probability of occurring. The Commission must determine,
as a matter of law and policy, how probable an accidental aircraft crash would
have to be to qualify as a ‘‘credible event’’ which the ISFSI must be designed to
withstand without releasing dangerous levels of radiation.
2
We note that the issue we consider today is only the threshold probability for
accidental events and has no bearing on the issue of whether or to what extent
intentional acts must be considered in designing the facility.
3
We find the Board’s 10
-6 standard consistent with our own view, and hence
affirm the Board’s decision.
I. BACKGROUND
The Applicant, Private Fuel Storage, L.L.C., seeks a license to operate an
ISFSI on the Skull Valley Goshute Indian Reservation in Utah. Contention Utah
K/Confederated Tribes B claims the Applicant has not adequately considered
credible external accidents that could affect the proposed facility. As admitted,
the contention’s principal concern was that aircraft, jettisoned ordnance from
military aircraft, or land-launched missiles could crash into the proposed spent
fuel storage facility. Through earlier summary disposition, the issues were
narrowedto onlyhazardsassociatedwith the Salt LakeCity InternationalAirport;
hazards from conventionalground weapons fired from Dugway Proving Ground;
military aircraft crash hazards from Dugway Proving Ground, Hill Air Force
1 See LBP-01-19, 53 NRC 416 (2001).
2 As this question has a potential impact on all Part 72 facilities, the Nuclear Energy Institute, a trade group
representing the nuclear energy industry, has filed a motion for permission to file an amicus brief. The Commission
by this Order grants the motion and has considered NEI’s brief in reaching its decision.3 In light of the September 11, 2001 terrorist attacks on the Pentagon and World Trade Center, the Staff has
been directed to review its regulations to determine whether additional steps should be taken to design and defend
regulated facilities against potential terrorism. The State of Utah has also filed a late-filed contention concerning the
threat of terrorist acts, such as the intentional crash of a large plane into the facility.SeeState of Utah’s Request for
Admission of Late-Filed Contention Utah RR (Suicide Mission Terrorism and Sabotage), Oct. 10, 2001. In addition,
Utah has asked the Commission to halt the proceedings until it has determined whether the regulations concerning
ISFSIs should be revised.See State of Utah’s Petition for Immediate Relief Suspending Licensing Proceedings,
Oct. 10, 2001. Today’s decision has no effect on the Staff’s review of the regulations or the terrorist-threat-related
petitions pending before the Board and Commission.
257
Base, and the Utah Test and Training Range (UTTR); and hazards from cruise
missile testing.
4
In December 2000, PFS filed a Motion for Summary Disposition of these
remaining portionsof this contention, claiming that there was no longer any issue
ofmaterialfactas towhetheranyofthese hazardscouldcrediblythreatento cause
a release of radioactive material from the proposed ISFSI. In order to show no
crediblethreat, PFS presentedevidencethat safetycontrolsmadevariousaccident
scenarios extremely unlikely, and in some cases that even if the posited accident
did occur, no radioactive materials would be released.
5 As part of its claim that
aircraft pose no credible threat, PFS argued that any event having a less than one
chance in a million of occurring should be deemed not credible.
The Board agreed that one in a million is the appropriate ‘‘threshold
probability,’’ beneath which a posited accident can be ignored in the facility’s
design. The Board certified that portion of its ruling to the Commission. The
Board also found that there remained issues of fact with respect to the likelihood
of either an F-16 or jettisoned ordnance from an F-16 crashing into the facility;
similar crashes resulting from air-to-air combat training activities conducted on
the Utah Test and Training Range; the probability of an aircraft using the Moser
Recovery Route crashing; the crash impact hazard from flights out of Michael
Army Airfield; and the cumulative air crash hazard. Last, the Board granted
summarydispositioninPFS’s favorwithrespectto variousotherissues, including
the threatposedbycruisemissiles, and air-to-groundandair refuelingactivitiesat
the UTTR. Only the question of the proper threshold probability is under review
here.
II. DISCUSSION
A. Design Basis
As is the case for other NRC-regulated facilities, the site of a proposed ISFSI
must be evaluated to identify and assess the likelihood of possible accidents,
both natural and manmade, that could affect the facility.
6 These natural and
man-induced events are made part of the ISFSI’s design basis, ensuring that each
component will continue to perform its designated functions under normal and
4 LBP-99-35, 50 NRC 180, 200-01 (1999).
5 See Applicant’s Motion for Summary Disposition of Utah Contention K and Confederated Tribes Contention B,
dated Dec. 30, 2000, Attachment D, Declaration of Jeffrey R. Johns, dated Dec. 27, 2000.
6 See 10 C.F.R. Part 72, Subpart E; §72.90(c) (‘‘Design basis external events must be determined for each
combination of proposed site and proposed ISFSI or MRS design’’); §72.92, ‘‘Design basis external natural
events’’; §72.94, ‘‘Design basis external man-induced events.’’
258
extreme conditions.
7 General design criteria require an ISFSI to be designed to
‘‘accommodate the effects of, and to be compatible with, site characteristics and
environmentalconditions. . . and to withstand postulatedaccidents.’’
8 Applicable
NRC regulations do not expressly address aircraft impact hazards, but related
hazards such as fires and explosions are specifically addressed as hazards that the
facility must weather without jeopardizing public safety.
9
A facility need not be designed to withstand every conceivable accident, but
only those found to be ‘‘credible.’’
10 Credible accidents are therefore generally
called ‘‘design basis events’’ or ‘‘design basis accidents,’’ and events too
improbable to be considered credible are called ‘‘beyond design basis’’ events.
If an event does not exceed the design basis, engineered controls will keep any
radiation exposure to the public within prescribedlimits.
11 If the proposedfacility
cannot be designed to withstand credible accidents without releasing excessive
radiation, the site is unsuitable and NRC will deny the application.
12
B. Threshold Probabilities for Design Basis
The Commission must decide the threshold probability for a design basis
event at an ISFSI. Part 72 does not address this question directly, and no agency
guidance explicitly applicable to Part 72 facilities answers this question. At other
NRC-regulated facilities, the agency uses different threshold probabilities: one in
ten million for nuclear power plants and one in a million for geologic repository
operations areas (GROA).
13 Because no agency guidance or regulation applies,
7 ‘‘Design bases’’ is defined in 10 C.F.R. Part 72 as:
that information that identifies the specific functions to be performed by a structure, system, or component
of a facility or of a spent fuel storage cask and the specific values or ranges of values chosen for controlling
parameters as reference bounds for design. These values may be restraints derived from generally accepted
state-of-the-art practices for achieving functional goals or requirements derived from analysis (based on
calculationorexperiments)oftheeffectsofapostulatedeventunderwhichastructure,system,orcomponent
must meet its functional goals. The values for controlling parameters for external events include—
....
(2) Estimates of severe external man-induced events to be used for deriving design bases that will be
based on analysis of human activity in the region, taking into account the site characteristics and the risks
associated with the event.
10 C.F.R. §72.3.
8 10 C.F.R. §72.122(b)(1).
9 10 C.F.R. §72.122(c).
10See, e.g., Metropolitan Edison Co.(Three Mile Island Nuclear Station, Unit 2), ALAB-692, 16 NRC 921
(1982). There, calculations showed a greater than one-in-ten-million chance that Three Mile Island Unit 2 (located
2.7 miles from Harrisburg International Airport) could be hit by a 200,000-pound aircraft traveling at 200 knots.
Therefore, the impact from an aircraft of that size and speed was determined to be a design basis accident and the
reactor was designed to withstand it. Although heavier aircraft sometimes used the airport, the probability of one of
them hitting TMI2 was determined to be so low that such a crash was not considered a design basis event.
11See 10 C.F.R. §72.106(b).
1210 C.F.R. §72.90(d).
13This one-in-a-million threshold probability for design basis events at a GROA also includes consideration of
the probabilities and component failures.See discussion infra.
259
the most reasonable basis for the Commission to reach a decision here would be
to examine the risks associated with these two kinds of facilities to determine
which is most comparable to the proposed ISFSI.
1. Standard Review Plan for Nuclear Power Reactors
With respect to power reactors, the NRC long ago determined that events
having at least a one-in-ten-million (1 × 10-7) probability generally should be
taken into consideration in facility design, an approach reflected in the Standard
Review Plan for the Review of Safety Analysis Reports for Nuclear Power
Plants.14 The Standard Review Plan also providesformulasfor calculating, with a
conservative margin, the probability of various hazards. The subchapter dealing
specifically with aircraft hazards provides a formula that takes into consideration
factors like the distance from the proposed facility to the airfield and the number
of flights into and out of the airfield.
15
Estimating the probability of extremely unlikely events involves considerable
uncertainty when sufficient data are not available to plug into the formula.
Therefore, the Standard Review Plan for reactors deems a threshold probability
of one in a million (1 × 10-6) to be acceptable where, ‘‘when combined with
reasonable qualitative arguments, the realistic probability can be shown to be
lower.’’16 That is, where a conservative estimate shows an event has no greater
than a one-in-a-million probability, that event may be ignored in facility design
if reasonable estimates result in a lower probability when conservative margins
are not factored in. To illustrate, in Consumers Power Co.(Big Rock Point
Plant),17 a conservative estimate assumed that any navigational errors made by
B-52s training near the Big Rock site would send the aircraft over the plant. The
Board noted that a navigational error would in fact be just as likely to send an
aircraft away from Big Rock as toward it, so the ‘‘realistic’’ probability of a
B-52 overflight was lower than the conservative estimate showed.
18 Similarly, a
conservative estimate assumed that 1500 aircraft would fly in and out of a nearby
military base, whereas the realistic estimate, based on actual data from a recent
year, showed only ninety-nine flights.
19 Because the conservative estimate of the
cumulative aircraft hazards was approximately one in a million, and there were
14Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants, NUREG-0800
(Rev. 2, July 1981), §§2.2.1-2.2.2, ‘‘Identification of Potential Hazards in Site Vicinity’’; and §3.5.1.6, ‘‘Aircraft
Hazards.’’
15Id.§3.5.1.6.
16Id.§2.2.3(II), ‘‘Evaluation of Potential Accidents.’’
17LBP-84-32, 20 NRC 601, 639-52 (1984).
18Id.at 642.19Id.at 648.
260
reasonableargumentsthat the realistic probabilityof a crashwas lower, the Board
in Big Rock found no need to redesign the plant to withstand an airplane crash.
20
2. Geologic Repository Operations Area
In 1996, the NRC published revised regulations concerning design basis
events at a GROA — the surface operations of a geologic repository — before
permanent closure.
21 The statement of considerations published along with the
revised regulations noted that:
Assuming bounding repository event consequences of roughly 0.2 Sv (20 rem), a lifetime risk
to individuals in the general population of 0.05 fatal cancers per Sv of exposure, and a lower
bound of 1×10-6 per year for the probability of occurrence of Category 2 design basis events,
the estimated risk of cancer fatality from these low probability events would be 1 × 10-8 per
year. Events which result in risks at or below this level do not contribute significantly to
repository risk to an individual and, as such, can be neglected in the overall risk assessment.
22
Thus, in considering bounding event consequences in which the initiating
event probability is considered rather than the event sequence probability, the
Commission determined that event probabilities of less than 1 × 10-6 would not
significantly contribute to risk and could be screened from further consideration.
C. Parties’ Positions
1. Staff’s Safety Evaluation Report
TheNRCStaffagreedwithPFSandtheBoardthatoneinamillionistheproper
threshold probability for air crash hazards at an ISFSI. In its Safety Evaluation
Report for the PFS facility, the NRC Staff used the formula found in the Standard
Review Plan for reactors to assess the probability of an aircraft crash.
23 These
calculations resulted in a cumulative hazard from various civilian and military
aircraft accident scenarios of approximately 7.4 × 10-7.24
Rather than use the one-in-ten-million threshold probability that the Standard
Review Plan prescribes for power reactors, the NRC Staff determined that the
20Id.at 651.21See Final Rule, ‘‘Disposal of High-Level Radioactive Wastes in Geologic Repositories; Design Basis Events,’’
61 Fed. Reg. 64,257 (Dec. 4, 1996). For the GROA, ‘‘design basis events’’ refers to the probability of the ‘‘event
sequence’’ which includes an initiating event (e.g., an earthquake) and the associated combinations of repository
system or component failures that can potentially lead to exposure of the public to radiation.Id.at 64,263. Here,
however, we are only considering the appropriate threshold probability of the initiating event without consideration
of the probability of system or component failures.
22Id.at 64,265.
23See Safety Evaluation Report (SER), Ch. 15, §15.1.2.11, at 15-41–15-81.24Id.at 15-79.
261
appropriatethresholdprobabilityfor a design basis accident at the PFS ISFSI was
one in a million. The Staff reasoned that a potential crash into the ISFSI would
not have as dire consequences as a possible crash into a power reactor:
Compared to a nuclear reactor facility, an ISFSI is a relatively passive system that does not
have complex control requirements and that has contents with relatively low thermal energy.
Therefore, potential fuel damage and the associated radioactive source terms from a potential
accident are significantly less than that expected from a potential accident at a nuclear reactor
facility. As a result, the estimated consequences from a potential accident at an ISFSI are
less severe than from a potential accident at a nuclear reactor facility. Therefore, the staff
concludes that a threshold probability of 1 × 10-6 crashes per year is an acceptable value for
evaluating aircraft crash hazards at the PFS facility.
25
In short, the Staff found that the less severe consequences of a crash at the
ISFSI reduced the overall risk and justified using a one-in-a-million rather than
one-in-ten-millionthresholdprobability. As it was not using the StandardReview
Plan’s reasoning for determining the threshold probability, the Staff did not use
‘‘qualitative arguments’’ to show that the ‘‘realistic probability’’ of a crash was
actually lower than the probability formula would indicate.
2. Applicant’s Argument
In its Motion for Summary Disposition, PFS argued that the Board should
choosea thresholdprobabilityof onein a millionbecausethis is the standardused
forthesurfaceoperationsandstorageareaatageologicrepository. PFScontended
that an ISFSI is more similar, in design and function, to the surface operations
at the GROA than to a nuclear power plant. It pointed to the Commission’s
statement of considerations for the GROA design basis rule which showed that
the Commission intended that the design standards for a GROA and Part 72
facilities be comparable: ‘‘Because operations at the repository are expected to
be similar to operations at other facilities licensed by the Commission (e.g., 10
C.F.R. part 72 facilities), the Commission believes that it is appropriate that their
design bases be comparable.’’
26
PFS also argued that the one-in-a-million standard is appropriate because the
consequences of a potential accident at an ISFSI, in terms of how much radiation
could be released, would be much less severe than at a nuclear power plant.
Because risk is the product of the probability of occurrence multiplied by the
consequences, PFS contended that the overall risk associated with a potential
crashat anISFSI is lowerthanat a nuclearpowerplant.
27Thisreasoningis similar
25Id.at 17-77.
2661 Fed. Reg. at 64,262.27See PFS Motion for Summary Disposition at 10.
262
to that which the Commission used in its statement of considerationsfor the 1996
amendments to 10 C.F.R. Part 60 setting the one-in-a-million lower bound for a
design basis event at the surface areas of a geologic repository.
28
In addition, PFS’s motion for summary disposition provided arguments that
the realistic probability is actually less than the conservative estimates resulting
from the formulas found in the Standard Review Plan.
29
3. Utah’s Argument
Utah now argues that summary disposition was premature. First, Utah claims
that NRC should apply section 3.5.1.6 of the Standard Review Plan — that
is, the reactor standard — because that section deals specifically with aircraft
crash hazards.
30 Utah points out that Standard Review Plan §3.5.1.6 provides
for a threshold probability of 1 × 10-7, and does not speak of using a higher
probabilitywherethe‘‘realistic’’probabilityislower. Thesectionofthe Standard
Review Plan that deems a higher probability to be acceptable, where ‘‘realistic’’
probabilities are lower, is the general accident analysis section, §2.2.3.
This approach, however, would have the Commission apply one portion of
NUREG-0800 that speaks specifically to airplane crash hazards, while ignoring
another section that deals specifically with evaluation of hazards and with risk
tolerance.31
Utah further claims that even if the ‘‘realistic probability’’ approach set out in
Standard Review Plan §2.2.3 were applicable, PFS has not provided reasonable
qualitativeargumentsto show that its estimate is conservativeandthat anairplane
crash’s realistic probability is closer to one in ten million. Utah maintains that
whether the calculations are conservative, and what the ‘‘realistic’’ figure is, are
material factual issues that preclude summary disposition.
32
D. Commission Analysis
As no law or regulation establishes the threshold probability for design basis
accidents at an ISFSI, the Commission must select a standard it finds sufficiently
protective. For the reasons set forth below and in LBP-01-19, we conclude that
the 10
-6 standard is workable and appropriate for the PFS facility.
Before reaching the substance of this policy question, we first turn to Utah’s
procedural argument that summary disposition was premature. We disagree. The
28See 61 Fed. Reg. at 64,259.
29PFS Motion for Summary Disposition at 28-29.
30State of Utah’s Brief on the Question Certified in LBP-01-19, July 13, 2001, at 13.
31NUREG-0800, §2.2.3, ‘‘Evaluation of Potential Accidents.’’32State of Utah’s Brief at 13-14.
263
applicable probability is not a question of fact, but a question of law and policy.
Factual issues concerning conservativeness and realistic probabilities would only
be material if the hazard analysis acceptance criteria found in Standard Review
Plan §2.2.3 were applicable. That is, if Utah were correct that NUREG-0800
is directly applicable to evaluating an ISFSI, then questions would remain
concerning the estimate’s conservativeness that would preclude the Board from
finding that the threshold probability is one in a million. Therefore, if the Board
had based its conclusion about the threshold probability on the Standard Review
Plan, then the conclusion itself would be premature. But it did not.
Rather, the Board agreed with PFS’s argument that the Commission had
already indicated its intention that the design bases for Part 72 facilities and the
surfaceoperationsofageologicrepositorybe‘‘comparable.’’33TheCommission’s
statement of considerations in the design basis amendments to Part 60 suggested
that the design bases for Part 72 facilities and the surface operations at the
GROA should be the same.
34 In that statement, the Commission also articulated
more generally its intention to ‘‘harmonize’’ Part 60 with Part 72.
35 Furthermore,
throughoutthe statement of considerations in amending Part 60, the Commission
referred to conforming various sections of Part 60 to their counterpart sections of
Part 72.
36 Therefore, affirming the Board’s decision is consistent with our past
views on this subject.
Moreover, we find little basis to choose the threshold probability used in
the Standard Review Plan for reactors. The proposed facility is not, of course,
a reactor. Furthermore, NUREGs, such as the Standard Review Plan, like
all guidance documents, are not legally binding regulations.
37 Where the NRC
developsaguidancedocumenttoassistin compliancewithapplicableregulations,
it is entitled to special weight.
38 But where a Staff guidance document was not
even drafted for use in evaluating applications of the type under consideration,
then the guidance is persuasive only insofar as it may bear on distinct questions.
Here,forexample,theNRCStaffhasappropriatelyconsideredtheformulasinthe
Standard Review Plan for calculating air crash probability, for that methodology
pertains regardless of the type of facility at issue. But the Staff rightly refused to
use the Standard Review Plan’s overall 10
-7 design basis standard — which the
33LBP-01-19, 53 NRC at 430-31,citing 61 Fed. Reg. at 64,262.3461 Fed. Reg. at 64,262.35Id.at 64,265.36See, e.g., id.at 64,264, considering section 60.130: ‘‘changes also provide consistency with the corresponding
‘minimum’ design criteria for an MRS, in part 72’’;id.(regarding section 60.136: ‘‘The Commission adopts the
basic [dose] provision of part 72 — namely a 0.05 Sv (5 rem) dose limit on or beyond the preclosure controlled area
boundary’’);id.at 64,265 (‘‘The only other noteworthy deviation from Part 72’’ is that Part 60 refers to ‘‘Category
2 design basis events’’ while the corresponding section in Part 72 refers to ‘‘design basis accidents’’).
37See, e.g., International Uranium (USA) Corp.(Request for Materials License Amendment), CLI-00-1, 51 NRC
9, 19 (2000);Curators of the University of Missouri,CLI-95-1, 41 NRC 71, 149 (1995).
38See, e.g., Long Island Lighting Co.(Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275, 290
(1988);Consumers Power Co.(Big Rock Point Nuclear Plant), ALAB-725, 17 NRC 562, 568 (1983).
264
NRC developedfor reactors, not forfacilities like ISFSIs whose failurewould not
pose nearly the same radioactive consequences as a reactor failure.
Because the hazards associated with temporary storage of spent fuel differs
significantly from the hazards associated with operating nuclear power plants
and permanent geologic storage, the Commission has said that it will ‘‘not
automatically apply all regulatory requirements to ISFSIs that it applies to
other regulated activities.’’
39 The Commission has previously recognized that the
‘‘public health and safety risks posed by ISFSI storage . . . are very different
from the risks posed by the safe irradiation of the fuel assemblies in a commercial
nuclear reactor, which requires the adequate protection of the public . . . in the
conditionsofhightemperaturesandpressuresunderwhichthereactoroperates.’’40
This is because the danger presented by irradiated fuel ‘‘is largely determined by
the presence of a driving force behind dispersion,’’ such as heat and pressure,
neither of which is present in an ISFSI.
41 Moreover, the radiological source term
is lower at an ISFSI than at a reactor both because the spent fuel has decayedover
time prior to placement in an ISFSI and because there are fewer fuel assemblies
in an individual cask than in a reactor.
42 Thus, the Board reasonably refused to
employ the 10
-7 reactor design standard, and instead set the standard at 10
-6.
III. CONCLUSION
On the basis of the foregoing, we conclude that the threshold probability for
design basis events should be set at one in a million (1 × 10-6). The Board’s
ruling in LBP-01-19 is, therefore, affirmed. The hearing should proceed on the
remaining factual issues the Board found in that order.
Commissioner Dicus did not join in this opinion. She would have sent the
matter back to the Board for a factual determination whether the consequences
of a potential accident at an ISFSI are more similar to those of an accident at a
39See Final Rule, Interim Storage of Spent Fuel in an Independent Spent Fuel Storage Installation at a Reactor
Site; Site-Specific License to a Qualified Applicant, 60 Fed. Reg. 20,879, 20,883 (April 28, 1995) (response to
public comments).
40Id.41Id.42We recognize that Utah has submitted a declaration in which it is claimed that a worst-case scenario resulting
from an aircraft crash could result in doses that are significantly larger than those estimated in the bounding
consequences analysis for Category 2 design basis events at a GROA.Compare 61 Fed. Reg. at 64,265 with
Declaration of Dr. Marvin Resnikoff Regarding Material Facts in Dispute with Respect to Contention K, dated
January 31, 2001, ¶16. However, the affidavit does not explain the input assumptions used to determine the dose,
nor does it discuss the physical differences between a reactor and the GROA. Because any dose analysis is highly
dependent on input assumptions and because the physical nature of the facilities suggests that the consequences of
an accident at an ISFSI are far more similar to those that might result from an accident at a GROA than one at
a reactor, the affidavit is not sufficiently probative. Therefore, Utah’s conclusions, without more, fail to raise a
genuine issue of material fact.See Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 249 (1986) (summary judgment is
appropriate when evidence is ‘‘merely colorable’’ or is ‘‘not sufficiently probative’’);Advanced Medical Systems,
Inc.,CLI-93-22, 38 NRC 98, 102 & n.13 (1993).
265
GROA or those of an accident at a nuclear power reactor as a basis for setting the
threshold probability.
IT IS SO ORDERED.
For the Commission
ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 14th day of November 2001.
266
Cite as 54 NRC 267 (2001)CLI-01-23
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Nils J. Diaz
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket No. 70-7001
(Certificate GDP-1)
U.S. ENRICHMENT CORPORATION
(Paducah, Kentucky Gaseous
Diffusion Plant) November 14, 2001
RULES OF PRACTICE: PETITION FOR REVIEW UNDER PART 76
Because paragraphs 76.45(d) and (e) of 10 C.F.R. both limit eligibility for
review as of right of a certificate amendment to those persons ‘‘whose interest
may be affected,’’ standing is a threshold issue.
RULES OF PRACTICE: PETITION FOR REVIEW UNDER PART 76
Petitionersunder10 C.F.R. §76.45(d)bear the burdento allege factssufficient
to establish standing.
RULES OF PRACTICE: STANDING
To meet the Commission’s standing requirements, a person must show that
the agency action at issue will cause the person injury in fact, and that the injury
complained of is within the zone of interests protected by the statutes governing
the proceeding.
267
RULES OF PRACTICE: STANDING
To establish injury in fact, a person must allege a concrete and particularized
injury that is fairly traceable to the challenged agency action. A generalized
grievance shared by a large class of citizens is not an injury in fact sufficient to
support standing.
RULES OF PRACTICE: PETITION FOR REVIEW UNDER PART 76
The fact that a person submits comments on a proposed agency action and
NRC Staff states it will consider those comments does not by itself mean that
such persons have ‘‘an interest that may be affected’’ within the meaning of 10
C.F.R. §76.45.
RULES OF PRACTICE: STANDING; ZONE OF INTERESTS
PROTECTED BY AEA §193(f)
The interest to be protected by AEA §193(f) is a broad public interest in the
maintenance of access to reliable and economical domestic enrichment services.
It does not include the interest in continued employment of gaseous diffusion
plant employees.
RULES OF PRACTICE: STANDING
Because the closure of the Portsmouth gaseous diffusion plant was not the
consequence of any NRC regulatory requirement or direction, but was instead
the consequence of a business judgment by USEC, Petitioners cannot show that
agency action caused their injury and therefore lack standing.
REGULATIONS: INTERPRETATION OF 10 C.F.R. PART 76
The term ‘‘interest’’ as used in the Commission’s standing regulations does
not encompass the economic interest of employees.
ATOMIC ENERGY ACT: INTERPRETATION OF SECTION 193(f)
AccordingtotheplainwordingandlegislativehistoryofAEA§193(f),reviews
are not required at the time of recertification for a gaseous diffusion plant or in
connection with other events that do not involve a change in control, such as
upgrade amendments.
268
ATOMIC ENERGY ACT: INTERPRETATION OF SECTION 1701(c)
Section1701(c)(4)doesnotchargeNRCwitharecurringobligationtoconsider
whether USEC will continue to maintain a reliable and economical source of
domestic enrichment services; rather, section 1701 requires periodic reviews
of USEC operations with a focus on health, safety, and common defense and
security.
ATOMIC ENERGY ACT: INTERPRETATION OF SECTION 193(f)
AEA §193(f) provides for two related tests: (1) Is the certificate holder to
be owned, controlled, or dominated by a foreign entity; and (2) if the certificate
holder is not to be owned, controlled, or dominated by a foreign entity, is the
certificate holder likely to be subject to influence by an entity, principally a
foreign entity, that would be inimical to (a) the common defense and security, or
(b) maintaining a domestic enrichment capability?
RULES OF PRACTICE: PRECEDENTIAL EFFECT OF NRC
GUIDANCE DOCUMENTS
Positions taken in NRC guidance documents are not binding upon the
Commission.
MEMORANDUM AND ORDER
I. INTRODUCTION
InthisDecisionwereview,pursuantto10C.F.R.§76.45(e),theJune14,2001,
Director’s Decision issued by the Director, Office of Nuclear Materials Safety
and Safeguards (Director’s Decision, DD-01-3, 54 NRC 305 (2001)), denying
the April 17, 2001, ‘‘Request for Director’s Review of Staff Decision Certificate
Amendment to U.S. Enrichment Corporation Paducah GDP’’ (Petition), filed
pursuantto10C.F.R.§76.45(d),onbehalfofDanielJ.Minter,PresidentofPACE
Local 5-689 and members of PACE 5-689 (PACE or Petitioners). On July 16,
2001, the Petitioners, pursuant to 10 C.F.R. §76.45(e), submitted an ‘‘Appeal to
the Commission of Director’s Decision’’ (Appeal) requesting the Commission’s
review of the Director’s Decision. On July 31, 2001, the U.S. Enrichment
Corporation (USEC) submitted, as permitted by 10 C.F.R. §76.45(e)(2),its reply
to PACE’s request for a Commission review.
269
Following the submittal of USEC’s reply, Petitioners on August 10, 2001,
submitted a ‘‘Motion for Leave to Reply, Supplement, or in the Alternative,
Discovery’’ (Motion). USEC responded to this motion on August 20, 2001.
While the Commission’s rules in 10 C.F.R. §76.45 do not provide for filing
the subject motion, the Commission has accepted and considered it, along with
USEC’s reply, in this proceeding.
II. BACKGROUND
This proceeding arises out of an amendment the NRC issued on March 19,
2001, to the Paducah Gaseous Diffusion Plant Certificate which provided the
authority for USEC to increase the enrichment capacity of the Paducah Gaseous
Diffusion Plant (GDP).
1 The Petitioners in their April petition requested that the
amendmentissued on March 19, 2001, be reconsideredand that the NRC conduct
(1)the‘‘reliableandeconomical’’reviewassertedtoberequiredbysection193(f)
of the Atomic Energy Act of 1954, as amended (AEA),
2 the Commission’s rules
in 10 C.F.R. Part 76, and the public interest; and (2) make public the results of
that review and seek comment on appropriate conditions that may be employed
to bring USEC into compliance with the Atomic Energy Act (AEA).
In denying the petition, the Director noted that the Petitioners had made
no attempt to explain why their interests were affected by the issuance of the
amendment.3 There has been no showing that the Petitioners, who are members
of the union at the Portsmouth GDP located in Piketon, Ohio, reside in the
proximityofthePaducahplantlocatedinPaducah,Kentucky,severalhundredsof
miles away from Piketon. Nonetheless, the Director considered several potential
standing arguments that the Petitioners might have raised.
Petitioners might have asserted a general interest in maintaining reliable
and economical domestic enrichment services. But the Director found that the
Petitioners’interestwouldbea generalizedgrievanceofbroadpublicconcernthat
would not be sufficient to confer standing under the Commission’s adjudicatory
1 Letter from Eric J. Leeds, Chief, Special Projects Branch, Division of Fuel Cycle Safety and Safeguards, Office
of Nuclear Materials Safety and Safeguards, to Morris Brown, Vice President Operations, USEC, entitled Paducah
Gaseous Diffusion Plant Certificate Amendment Request: Higher Assay Upgrade Project (TAC No. L32415).
2 Section 193(f) of the AEA provides
LIMITATION.—No license or certificate of compliance may be issued to the United States Enrichment
Corporation or its successor under this section or sections 53, 63, or 1701, if the Commission determines
that—
(1) the Corporation is owned, controlled, or dominated by analien, a foreign corporation, or a foreign
government; or
(2) the issuance of such a license or certificate of compliance would be inimical to—
(A) the common defense and security of the United States; or
(B) the maintenance of a reliable and economical domestic source of enrichment services.3 Director’s Decision, DD-01-3, 54 NRC at 309.
270
decisions.4 The Director also considered the Petitioners’ interest in protecting
employment positions at USEC’s Portsmouth plant based on the Petitioners’
assertion that there is a direct relationship between granting the amendment
allowing higher enrichment at the Paducah plant and the decision to close the
Portsmouthplant.5However,theDirectorconcludedthatmaintainingemployment
in the face of a plant closing is an economic interest that is not within the zone
of interests protected by the AEA, and, apart from the zone-of-interests test,
the NRC has not interpreted the term ‘‘interest’’ to encompass the economic
interest of employees. Consequently, the Director denied the petition based on
the Petitioners’ failure to establish that they have the requisite interest to seek the
Director’s review under 10 C.F.R. §76.45(d).
6
While the Director deniedthe petition based on a lack of standing, the Director
nonetheless proceeded to address the Petitioners’ basic arguments, which are
found in an analysis of section 193(f) of the AEA and the Commission’s
regulations in 10 C.F.R. Part 76. The Director concluded that
in making determinations required by section 193(f)(2)(B), [the NRC] should focus on the
issue of entities, principally foreign entities,gaining control and undermining U.S. domestic
enrichment capabilities, which would be inimical to the interest of the United States, and that
this review need only be conducted at the time of a proposed certification of a new owner
or other transfer of control meeting the threshold of 10 C.F.R. §76.65. Such a review is not
required and is not appropriate for an enrichment assay upgrade amendment to the Paducah
certificate.7
ThePetitionersintheirAppealstatedthattheCommissionisobligedtoconduct
a‘‘reliableandeconomical’’reviewinconsiderationofthecertificateamendment
requested by USEC in this proceeding, to make the results of that review public,
and to seek comment on appropriate conditions that may be employed to bring
USEC into compliance with the law. In support of their position the Petitioners
raised two basic issues: first, that the Petitioners have standing to participate
in this proceeding; and second, that the failure to perform the ‘‘reliable and
economical’’ review stated in section 193(f) of the AEA is unlawful.
III. ANALYSIS
A. Standing
Pursuant to 10 C.F.R. §76.45(d), USEC or ‘‘any person whose interest may
be affected,’’ may file a petition requesting the Director of the Office of Nuclear
4 Id.at 308-09.
5 Id.at 309-10.
6 Id.at 310.7 Id.at 324.
271
Materials Safety and Safeguards (NMSS) to review an NRC Staff determination
on an amendment application. Similarly, 10 C.F.R. §76.45(e) provides that
USEC or ‘‘any person whose interest may be affected and who filed a petition
for review or filed a response to a petition for review under §76.45(d), may
file a petition requesting the Commission’s review of a Director’s decision.’’
Thus, both paragraphs 76.45(d) and (e) limit eligibility for review as of right of a
certificate amendment to those persons ‘‘whose interest may be affected.’’ Thus,
Petitioners’ standing is a threshold issue.
The Commission has previously addressed the issue of standing in a Part
76 matter, indicating that for Part 76 proceedings petitioners should look to
the Commission’s adjudicatory decisions on standing.U.S. Enrichment Corp.
(Paducah, Kentucky, and Piketon, Ohio), CLI-96-12, 44 NRC 231, 236 (1996),
citing Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta,
Georgia), CLI-95-12, 42 NRC 111, 115-17 (1995). In that case, which involved a
requestforreviewofa Director’sdecisiononissuanceofa certificateas permitted
by 10 C.F.R. §76.62(c),
8 the Commission accepted the petitioners as ‘‘interested
persons’’ despite a failure to meet the ‘‘obligation to explain their ‘interested
person’ status.’’ The Commission took this position because petitioners were
appearing pro se and this was the first instance the Commission had considered
petitions filed under Part 76.Id.However, the Commission cautioned ‘‘that in
future Part 76 certification decisions, it will expect Petitioners more specifically
to explain their ‘interested person’ status.’’Id.
In order to fulfill this obligation,‘‘[p]etitioners bear the burden to allege
facts sufficient to establish standing.’’
9 To meet the Commission’s standing
requirements, a person must show that ‘‘(a) the action will cause ‘injury in fact,’
and (b) the injury is arguably within the ‘zone of interests’ protected by the
statutes governing the proceeding.’’Metropolitan Edison Co.(Three Mile Island
Nuclear Station, Unit 1), CLI-83-25,18 NRC 327, 332 (1983). The person ‘‘must
allege a concreteandparticularizedinjurythat is fairly traceable to the challenged
action . . . .’’Georgia Tech,CLI-95-12, 42 NRC at 115. A ‘‘‘generalized
grievance’ shared in substantially equal measure by all or a large class of citizens
will not result in a distinct and palpable harm sufficient to support standing.’’
Three Mile Island,CLI-83-12, 18 NRC at 333;North Atlantic Energy Service
Corp.(Seabrook Station, Unit 1), CLI-99-27, 50 NRC 257, 263 n.5 (1999).See
also Warth v. Seldin,422 U.S. 490, 508 (1975). In order to assess whether an
interest is within the ‘‘zone of interests’’ of a statute, it is necessary to ‘‘first
discern the interests ‘arguably . . . to be protected’ by the statutory provision at
8 The current petition is based on 10 C.F.R.§76.45. However, the Commission’s interpretation of section 76.62(c)
is directly applicable as its language is identical to section 76.45(d) and (e) in that it also limits eligibility for review
to those persons ‘‘whose interest may be affected.’’9 Commonwealth Edison Co.(Zion Nuclear Power Station, Units 1 and 2), CLI-00-5, 51 NRC 90, 98 (2000).
272
issue,’’ and ‘‘then inquire whether the plaintiff’s interests affected by the agency
action are among them.’’National Credit Union Administration v. First National
Bank,522 U.S. 479, 492 (1998).
ThePetitionerscontendthattheCommissionhasalreadygrantedthemstanding
because PACE provided comments to the Staff on the proposed amendment and
the Staff stated that it would consider PACE’s comments in its review. The Staff
routinelyconsidersinformationfromavarietyofsourcesinmakingadecisionand
frequentlyacknowledgessuchcomments. However,thefactthatapersonsubmits
comments that the Staff stated that it would consider does not by itself mean
that such persons have ‘‘an interest that may be affected’’ within the meaning of
section 76.45. Such comments could reflect merely a ‘‘generalized interest’’ that
is not a ‘‘concrete and particularized injury’’ within the zone of interests of the
AEA.
The Petitioners, on appeal, contend that there are multiple and substantial
bases for their participation in this matter.
10 Specifically, Petitioners argue that
their interest is within the zone of interests of the AEA because:
1) the statutory condition that the GDPs continue to operate was, as recognized by the
Administration, USEC, and by contractual commitment between USEC and the United States,
one to which PACE members are a beneficiary;
2) USEC’s closing of the Portsmouth Plant, to which the Paducah upgrade is allegedly linked,
is violative of rights and interests that flow to PACE and its members under the Privatization
Act, and the contractual and further commitments thereunder;
3) Section 3161 of the FY 1993 Defense Authorization Act, as embodied in section 3110 of
the 1996 Privatization Act, further recognizes the linked interests of PACE members and the
Nation in the weapons complex experience and expertise of Cold War Veterans.
Appeal at 12. In light of these interests, Petitioners contend that the Director
was wrong in applying past precedents to conclude that the employment interests
of PACE’s members associated with the closing of the Portsmouth plant were
outside the zone of interests of the AEA.
In discerning the interests arguably to be protected by section 193(f), we have
looked to the words of the statute and its legislative history. As we understand
our statutory mandate, NRC is to be concerned with ownership and control of
the GDPs. Section 193(f) in its broadest reading is to provide for domestic
enrichment services and addresses findings that the Commission shall make in
issuing certificates. NRC’s role in this area is to provide assurance that the
certificates are not being issued or transferred to an entity that will undermine
‘‘the maintenance of a reliable and economical source of domestic enrichment
10Appeal at 5-13.
273
services.’’ The legislative history for section 193(f),
11 as well as the Privatization
Actaswhole,12 makesit clearthat theinterest inreliableandeconomicaldomestic
enrichment services is a broad public interest. Providing for a domestic source
of enrichment services protects the public interest by providing consumers of
enrichment services access to domestic enrichment. In our view, that is the
interest intended to be protected by section 193(f).
Thus, while PACE may have suffered an injury because of the actions of
USEC, the question for standing purposes is whether the agency action caused
an injury to PACE arguably to be protected by section 193(f) of the AEA.
The Commission accepts for purposes of resolving the standing question —
specifically, of determining whether the Petitioners’ interests are within the
zone of interests to be protected by the AEA — that there are provisions in
the Privatization Act that address the interests of PACE,
13 that USEC made
commitmentsto continuethe operationofthe GDPs,
14 andthatCongressintended
that the privatization process would provide for maintaining a reliable and
economical domestic source of enrichment services.
15 Nor does the Commission
dispute that the upgrade amendment facilitated the ability of USEC to expand the
operations of the Paducah plant, that issuance of the amendment provided USEC
with the flexibility to make a decisionto close the Portsmouthplant, and that such
action may have impacted PACE. However, the closure of the Portsmouth plant
wasnotadecisionmadebytheNRC,norwasitarequiredoutcomeoftheissuance
of the amendment for Paducah. In fact, there was nothing in the amendment or
NRC requirements that would have prohibited USEC from operating both GDPs
following the amendment. The decision to close the Portsmouth plant was made
byUSECasabusinessjudgment;theclosurewasnottheconsequenceofanyNRC
regulatory requirement or direction.In fact, NRC does not have authority over
the business judgments that USEC made concerning the Portsmouth plant: the
closure of a GDP is a matter that is not governed by statutes that the Commission
11Thelegislative historyexplains thatsection193(f) wasto addressthe potential of foreign control to thedetriment
of a domestic industry. S. Rep. No. 104-173, at 20 (1995). It states that the Commission can deny a certificate if
issuing a certificate would be
Inimical to the maintenance of a reliable and economical domestic source of enrichment services due to
the nature and extent of the ownership, control or domination of the Corporation by a foreign corporation
or a foreign government or any other relevant factors or circumstances. This provision was added to guard
against the possibility of a foreign uranium enrichment company acquiring the Corporation with the intent
of operating it in a manner inconsistent with its maintenance as an ongoing uranium enrichment concern.
[Emphasis in original.]
12Section 3103 of the Privatization Act, 42 U.S.C. §2297h-1,among other things, required the privatization to
provide for the ‘‘ protection of the public interest in maintaining a reliable and economical domestic source of
uranium...enrichment...services....’’(Emphasisadded.)13See, e.g.,section 3110 (Employee Protections), 42 U.S.C. §2297h-8.
14Agreement RegardingPost-ClosingConduct,signedJuly14,1998. However, contraryto Petitioners’ statements
in their appeal, section 1(c) of this agreement provides for circumstances when the plant can cease operation prior to
the end of 2004.See alsosection 3110(a)(5), 42 U.S.C. §2297h-8(a)(5) (contemplating plant closing).15Sections 3103(a) and 3104(b), 42 U.S.C. §2297h-1 and -2.
274
is charged with implementing.
16 Thus, any injury suffered by PACE was not a
direct result of the Commission’s actions.
The Petitioners also argue that the privatization provisions in the statutes and
contractual agreements referenced by them, which are in their view intended to
protect the interests of PACE’s members, demonstrate that the interests protected
by the statute include the employment interests of PACE. However, these
provisions are implemented by executive agencies other than the Commission.
The privatization provisions are too distant from and do not relate to the
Commission responsibilities under section 193(f).
Air Courier Conference v. Postal Workers,498 U.S. 517 (1991), illustrates
the nexus that must be demonstrated between the Petitioners’ interests and the
statutory provisions at issue. In Air Courier the Supreme Court rejected the
standing arguments that the employment interests of Postal Service employees
were arguably within the zone of interests protected by a statute whose purpose
was to increase the revenues of the Post Office and to ensure that postal services
were provided in a manner consistent with the public interest. In that case, the
Court recognized that portions of the Postal Reorganization Act (PRA) protected
employment opportunities of postal workers, but that the provision of the PRA
at issue in the case was not designed to protect postal employment or future job
opportunities; rather, they were intended to serve the nation as a whole.Id.at
528. The Court concluded that ‘‘it stretched the zone-of-interest test too far’’ to
say that because a person was protected under one portion of the PRA, the person
can challenge any other portion of it.Id.at 530.
Liketheprovisionsthatprotectedtheemploymentinterestofthepostalworkers
in Air Courier Conference,the privatization provisions cited by Petitioners do
not expand the zone of interests to be protected by section 193(f) to include the
employmentinterestsofthePetitioners. TotheextentthatthePetitioners’interests
would be protected by a section 193(f) decision, they would be ‘‘incidental
beneficiaries’’ of the decisionmaking.National Credit Union at 494 n.7.
17
Whileaspects ofthePrivatizationAct maybenefitthePetitioners, theirinterest
in decisions under section 193(f) is a generalized interest to preserve domestic
16Unlike the provisions in section 108 of the AEA concerning facilities licensed under sections 103 and 104, the
NRC does not have the authority to require USEC to continue to operate a GDP. Similarly, NRC does not have
the authority to prevent USEC from choosing to cease operation. Thus, it is unnecessary for the Commission to
resolve the differences in views concerning the circumstances that gave rise to the shutdown of the Portsmouth plant
raised in the affidavits filed by USEC and the Petitioners in this proceeding. Declaration of J. Morris Brown and
Declaration of Daniel J. Minter, and the August 1, 2001 Motion and USEC’s reply to it. The appropriateness of the
businessjudgments of USEC concerning the closure of the Portsmouth plant is not a matter within the Commission’s
jurisdiction.
17Even if the Petitioners are more than merely incidental beneficiaries of the statute, that fact does not mean that
the zone-of-interests test is satisfied.American Federation of Government Employees, Local 2119 v. Cohen,171
F.3d 460 (7th Cir. 1999);TAP Pharmaceuticalsv.HHS,163 F.3d 199, 206 (4th Cir. 1998). In TAP the court held that
TAP’s interests in selling pharmaceuticals were outside the zone of interests of a statute that was intended to provide
reasonable and necessary medical services even though TAP’s revenues would be affected by the government’s
actions.TAP,171 F.3d at 208.
275
capabilitysharedinsubstantiallyequalmeasurebyall oralargeclassofcitizens.
18
A generalized grievance of broad public concern is not a sufficient interest to
confer standing under the Commission’s adjudicatory decisions.See Three Mile
Island,CLI-83-25, 18 NRC at 333.
Thus, the Petitioners have not provided a sufficient basis for the Commission
to change its long-held view that maintaining employment in the face of a plant
closing is an economicinterest that is notwithin the zoneof interests protectedby
provisions of the AEA, which the Commission is charged with implementing.
19
Similarly, we are unpersuaded that we should change the view that the term
‘‘interest’’ as used in the Commission’s standing regulationsdoes not encompass
the economic interests of employees.
20 The Commission affirms the Director’s
finding that the Petitioners have not demonstrated the requisite interest to seek
reviewunder10 C.F.R. §76.45(d).Consequently,the Commissionconcludesthat
the Petitioners have not demonstrated the requisite interest to seek review under
10 C.F.R. §76.45(e).
21
Accordingly, the Commission dismisses this appeal on the basis that the
Petitioners have not met the standing requirements under 10 C.F.R. §76.45(e).
However, in light of the issues raised by the Petitioners concerningthe Director’s
interpretationof section 193(f)of the AEA, the Commission will address PACE’s
principal assertions regarding the application of section 193(f) of the AEA.
B. Application of Section 193(f) of the Atomic Energy Act
The Petitioners make two main arguments. The Petitioners claim that the
Director’s Decision is:
18In addressing standing, the Director noted that the Petitioners were members of the union at the Portsmouth
plant and the amendment involved only the Paducah plant. The Petitioners argue that if the Commission focused on
the company as a whole, and if the Commission were to agree with the Petitioners’ reading of section 193(f), they
would have standing. The Commission disagrees. The central issue is the interest to be protected by the statutory
provision. Assetout above,that interest is not the economicinterest of the union, but thepublic interestin a domestic
source of enrichment. Thus, the Petitioners’ interest is a general one shared by members of the public at large.
19The Commission in the past has found both the economic interests of a competitor and of employees in
preserving employment to be outside the statutes governing the NRC.Cf. Quivira Mining Co.(Ambrosia Lake
Facility, Grants, New Mexico), CLI-98-11, 48 NRC 1, 8-17 (1998),aff’d, Envirocare of Utah, Inc. v. NRC,194
F.3d 72 (D.C. Cir. 1999) (holding that an entity’s competitive interests do not bring it within the zone of interests
of either the AEA or the National Environmental Policy Act (NEPA) for the purpose of policing a competitor’s
compliance with licensing requirements);Sacramento Municipal Utility District(Rancho Seco Nuclear Generating
Station), CLI-92-2, 35 NRC 47, 56 (1992) (holding that the loss of employment does not fall within the zone of
interests protected by NEPA).20Envirocare of Utah v. NRC,194 F.3d 72 (D.C. Cir. 1999).21The Commission notes that PACE has participated in Freedom of Information Act litigation involving the
GDPs.Oil, Chemical & Atomic Workers v. DOE,141 F. Supp.2d 1 (D.D.C. 2001). In that case the Court stated
that PACE’s participation served the public interest. However, such participation in one proceeding does not
automatically grant standing in another proceeding based on a different statute. Thus, the extent of participation of
USEC in that litigation, which was addressed in the August 1, 2001 motion of the Petitioners and responded to by
USEC on August 17, 2001, is not relevant to this proceeding.
276
(1) at odds with the plain meaning of section 193(f)(2)(B)of the AEA and
its legislative intent, and
(2) contradicts contemporaneousinterpretations of section 193(f)(2)(B).
These issues were previously resolved by the Director on the basis of a detailed
analysisofsection193(f)(2)(B)anditslegislativehistory.22TheDirectorreasoned
that the plain words of the statute addressed issuance of certificates and did not
consider amendments. The Director stated
that in making determinations required by section 193(f)(2)(B), [the Staff] should focus on the
issue of entities, principally foreign entities,gaining control and undermining U.S. domestic
enrichment capabilities, which would be inimical to the interest of the United States, and that
this review need only be conducted at the time of a proposed certification of a new owner
or other transfer of control meeting the threshold of 10 C.F.R. §76.65. Such a review is not
required and is not appropriate for an enrichment assay upgrade amendment to the Paducah
certificate.23
The Commission is unpersuaded by the various arguments that the Petitioners
have made to challenge this finding. For the most part, the Petitioners have
repeated the same arguments that were raised before the Director and addressed
in his Decision and, thus, the Commission need not address them in any detail
here. Nevertheless, we comment on several points raised by the Petitioners.
1. Section 193(f) Is Not Applied to the Issuance of an Amendment
The Director concluded that the review required by section 193(f) does not
apply to the issuance of an amendment in the absence of a change in ownership
or control (which would require issuance of a new certificate) and does not
create a recurring obligation. The Petitioners disagree, contending that NRC
has a continuing obligation ‘‘to oversee USEC adherence to a course that will
ensure a reliable and economical domestic source of enrichment services.’’
24 But
Petitioners provide no authority for their position other than an assertion of broad
public interest. Section 193(f) explicitly states ‘‘[n]o license or certificate of
compliancemaybeissued....’’Thereisnothinginthestatuteorthelegislative
history to suggest that section 193(f) should be applied in situations other than
certificate issuances. The Director showed that the section 193(f) reviews are
22Petitioners state that the Director’s conclusions are ‘‘based on a still secret analysis.’’ Appeal at 4; Petition
at 22. Presumably, Petitioners are referring to advice of counsel that was referenced in correspondence from
Chairman Meserve to Representative Tom Bliley, Chairman, Committee on Commerce, United States House of
Representatives, dated September 11, 2000. The Director’s Decision speaks for itself and the basis for the decision
is set forth therein. Similarly, this Decision speaks for itself.
23Director’s Decision, DD-01-3, 54 NRC at 324.
24Appeal at 17. The Commission notes that the amendment increased the capability of USEC to provide domestic
enrichment services. As described above, it was USEC’s actions based on its business judgment, over which NRC
had no control, that caused the Portsmouth GDP to cease operation.
277
not required at the time of recertifications for a GDP or in connection with other
events that do not involve a change in control, such as the upgrade amendment at
issue in this matter, and we agree with that conclusion.
25
Inadditiontothelanguageofsection193(f)itself, we findit persuasivethatthe
AEA establishes in section 1701(c)(4)a requirementfor the Commission to make
periodic findings concerning the status of the operation of the GDPs. Congress
was clearly aware of this provisionof the AEA atthe time of enactmentof section
193(f) because it amended this section as part of the USEC Privatization Act.
26
The section specifically states that the NRC is to focus on health, safety, and
the common defense and security. The NRC was not charged with a recurring
obligation to consider whether USEC was continuing to maintain a reliable and
economical source of domestic enrichment services. The absence of such a
provisionas partof the NRC’s recurringobligationis clear evidencethat the NRC
was not expected to have a continuing obligation to consider the vitality of the
domestic enrichment industry.
27
Moreover, the Petitioners’ interpretation of the statute would essentially place
NRC in the position of being a promoter of domestic enrichment capability by
having NRC oversee ‘‘adherence to a course that will ensure a reliable and
economical domestic source of enrichment services.’’ Such a role is inconsistent
withtheroleofasafetyregulator.ItwouldplacetheNRCinthepositionofhaving
to balance the need for safety actions against preserving economic viability. In
fact, the very purpose of establishing NRC was to separate the promotional and
developmentfunctionsof the Atomic EnergyCommission fromthe oversightand
licensing functions.
28 We believe clear legislative intent is necessary before we
would interpret section 193(f) as requiring such a significant departure from the
singular regulatory role of the NRC. There is no such intent here.
2. The Focus of Section 193(f) Is Principally Foreign Entities
ThePetitionersarguethat the Directorignoredthe plainlanguageof the statute
innotfindingthatthe‘‘reliableandeconomical’’provisionofsection193(f)(2)(B)
25Director’s Decision, DD-01-3, 54 NRC at 317-19. The Petitioners also argued that a different result was
warranted here as the subject amendment was not ‘‘routine.’’ Appeal at 14-15. However, regardless of the unique-
ness, complexity, or importance of an amendment, the central issue for application of section 193(f) is whether the
amendment involves a transfer of control. There was no transfer of control associated with the subject amendment.
26The frequency of recertification in section 1701(b)(2) was amended by section 3116(b)(3) of Pub. L. No.
104-134.
27The Congress also did not give the Commission the authority to require USEC or its successors to continue
to operate the GDPs to provide for a domestic enrichment source. This is in contrast to section 108 of the Atomic
Energy Act, which states that the Commission, if Congress declares a state of war or national emergency, has the
authority to require production and utilization facilities to continue to operate if necessary for the common defense
and security.
28Section 2(a) of the Energy Reorganization Act of 1974,as amended. It is clear that NRC was established to
address ‘‘the criticism of the mixture of development and regulatory functions within the AEC.’’ H.R. Rep. No.
93-707, at 4 (1973) and S. Rep. No. 93-980, at 2 (1974).
278
is independentof the ‘‘foreignownership’’ test of section 193(f)(2).The Director
confronted the fact that in the final language of section 193(f)(2), the concept
of foreign control was separated from the provision on maintaining a domestic
source of enrichment services; he did not ignore it.
29 As noted in the Decision,
the legislative history explains that the NRC may deny a license or certificate of
compliance if issuance of a license or certificate would be
inimical to the maintenance of a reliable and economical domestic source of enrichment
services due to the nature and extent of the ownership, control or domination of the
Corporation by a foreign corporation or a foreign government or any other relevant factors or
circumstances.30
Petitioners’ construction not only is inconsistent with the legislative history, but
also would have the NRC delving into matters of economic viability which are
unrelatedtoNRC’s traditionalroleasaregulatorofradiologicalhealthandsafety,
and the common defense and security.
31 In our view, the Director appropriately
considered the language in section 193(f),its latent ambiguities, its legislative
history, and the regulatory scheme established under the AEA in construing the
statute.32 He properlyconcluded that section 193(f) providesfor two related tests:
(1) Is the certificate holder to be owned, controlled, or dominated by a foreign entity; and (2)
if the certificate holder is not to be owned, controlled, or dominated by a foreign entity, is
the certificate holder likely to be subject to influence by an entity, principally a foreign entity,
that would be inimical to (a) the common defense and security or (b) maintaining a domestic
enrichment capability?
33
3. The Commission Is Not Bound by the Draft SRP
The Petitioners take issue with the Director’s reliance on Chevron U.S.A.
v. Natural Resources Defense Council, Inc.,467 U.S. 837, 842-43 (1984) and
29Director’s Decision, DD-01-3, 54 NRC at 320.
30S. Rep. No. 104-173, at 20 (1995). See also the report of the House Commerce Committee on its version of the
Privatization Act which stated that
uranium enrichment activities will be subject to the same foreign ownership limitations as any other nuclear
production or utilization facility. It is expected that any interpretation of the terms in new subsection (f)
would be consistent with the historical administrative interpretation of similar language in sections 103,
104, and 1502(a) of the AEA.
H.R. Rep. No. 104-86, at 20 (1995). While the language of the House bill was different than the Senate’s, it reflects
the focus on foreign involvement.
31Looking to the legislative intent is warranted when a statute appears to depart from the normal regulatory
scheme.See Train v. Colorado Public Interest Research Group, Inc.,426 U.S. 1, 24 (1976).See also United States
v. American Trucking Association,310 U.S. 534, 543-44 (1940).32Director’s Decision, DD-01-3, 54 NRC at 320-22.See also note 31. In Train,the Court noted that ‘‘when aid
to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’
which forbids its use, however clear the words may appear on ‘superficial examination.’’’Train,426 U.S. at 10.
See also Ann v. United States,205 F.3d 1168, 1175 (9th Cir. 2000);Owen v. Magaw,122 F.3d 1350, 1354 (10th Cir.
1997).33Director’s Decision, DD-01-3, 54 NRC at 320.
279
KansasGasandElectricCo.(WolfCreekGeneratingStation,Unit1),CLI-99-19,
49 NRC 441 (1999), in light of the recent Supreme Court decision in United
States v. Mead,U.S., 121 S. Ct. 2164, 2001 WL 672258 (June 18, 2001).
The Mead decision, which focused on the scope of deference offered by courts
to agency interpretations was issued 3 days after the issuance of the Director’s
decision.34
The Director in addressing the authority to reconsider the position reflected in
the Staff’s draft Standard Review Plan (SRP), cited Chevron and Wolf Creek for
the proposition that agencies can change their positions. The Mead case did not
undermine the reality, reflected in Chevron,that agency interpretations are not
carved in stone, but rather must be subject to reevaluation of their wisdom on a
continuing basis.
35 The Petitioners would have the Commission bound to apply
a draft Staff SRP that had never been applied to an amendment.
36 The Director
fully addressed the basis for the NRC changing its position from the draft SRP
and why the Commission was not bound by the draft SRP.
37
IV. CONCLUSION AND ORDER
The Commission has given careful considerationto the Petitioners’ arguments
andUSEC’sresponses. TheCommissionagreeswiththeDirector’sdetermination
that Petitioners have not demonstrated the requisite interest to seek review under
10 C.F.R. §76.45 as a matter of right. Further, the Director has fully considered
thestatutorylanguageandtherelevantlegislativehistory. Asexplainedabove,the
Commission has adopted the Director’s Decision and analysis as the appropriate
interpretation of section 193(f)(2)(B) of the AEA. The review defined by section
193(f)(2)(B)isnotrequiredandisnotappropriateforanenrichmentassayupgrade
amendment to the Paducah certificate.
The public policy issues raised by Petitioners are more appropriately raised
before the Congress or before executive agencies and departments that report to
the President.
34The issue inMead was the deference due to one tariff classification ruling out of more than 10,000 issued a year
by Customs’ headquarters and by 46 different Customs’ offices. The Court held that such rulings did not have the
force of law and were not entitled to deference under Chevron,but were entitled to respect based on their individual
‘‘power to persuade.’’
35Chevron,467 U.S. at 863-64.
36The Petitioners, citing SECY-00-0181, August 24, 2000, noted that the Staff did perform a financial analysis
pursuant to the draft SRP following USEC’s credit downgrading. However, as the Director noted, it was the result
of the change in credit rating that led to the reconsideration of the position in the draft SRP and resulted in the views
the Commission provided its congressional oversight committees in letters dated September 11, 2000.
37Director’s Decision, DD-01-3, 54 NRC at 323-24.See also International Uranium (USA) Corp.(Request for
Materials License Amendment), CLI-00-1, 51 NRC 9, 19 (2000) (where the Commission held it was not bound by
NRC’s Alternative Feed Guidance): ‘‘Like NRC NUREGs and Regulatory Guides, NRC Guidance documents are
routine agency policy pronouncements that do not carry the binding effect of regulations.’’Id.
280
For the reasons stated in this Decision, the Commission denies the Appeal of
the Petitioners submitted pursuant to 10 C.F.R. §76.45(e)and adoptsthe June 14,
2001, Director’s Decision.
IT IS SO ORDERED.
For the Commission
ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 14th day of November 2001.
281
Cite as 54 NRC 283 (2001)LBP-01-32
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
Alan S. Rosenthal,Presiding Officer
Thomas D. Murphy,Special Assistant
In the Matter of Docket No. 40-8838-MLA
(ASLBP No. 00-776-04-MLA)
U.S. ARMY
(Jefferson Proving Ground Site) November 7, 2001
RULES OF PRACTICE: MOOTNESS
Thewithdrawalofalicenseamendmentapplicationwillrenderanyestablished
proceeding on that application moot. However, the rejection by the NRC Staff of
a license termination plan submitted in connection with the application will not
moot the proceeding if, notwithstanding that rejection, the application remains in
existence.
RULES OF PRACTICE: NEED TO REESTABLISH STANDING
An intervenor who has demonstrated its standing to challenge a license
amendment application need not reestablish that standing should the license
terminationplansubmittedwith the applicationbe withdrawnandan entirely new
and different plan ultimately substituted for it. In such circumstances, to obtain a
hearingon the applicationas thusaltered, the intervenorneed demonstratemerely
a concern germane to the new plan.
283
MEMORANDUM AND ORDER
(Granting Request To Hold Proceeding in Abeyance)
Because of recent unanticipated developments, it is manifest that there are
currentlynoissuessusceptibleofadjudicationinthismaterialslicenseamendment
proceeding. Not quite as clear is what should be done with the proceeding at
this juncture given those developments. Intervenor Save the Valley, Inc. (STV),
has asked that the proceeding be held in abeyance until there are once again
substantive issues possibly requiring adjudicatory consideration. For its part, the
Licensee Department of the Army (Army)is agreeable to that course on certain
conditions. Having been invited to submit its views on the matter (although it
is not otherwise participating in the proceeding), the NRC Staff takes a different
position. It maintains that, in the totality of the present circumstances, I should
dismiss the proceeding.
Because there apparently is no record of a like situation having arisen in the
past, it is not surprising that my research and that of the parties has failed to
uncover anything in the Commission’s jurisprudence that might shed light on the
appropriate disposition of the question at hand. Moreover, there seemingly is
nothing in the Rules of Practice pertaining to Subpart L proceedings such as the
one at bar that might provide some guidance. In short, the waters are entirely
uncharted. That being so, my task is to determine what course seems to make the
most sense, all relevant factors taken into consideration.
On the basis of what follows, I conclude that, although the Staff’s view might
not be entirely devoid of merit, there is greater reason for holding the proceeding
in abeyance rather than terminating it. Accordingly, the STV request seeking that
relief, not opposed by the Army, is granted.
I. BACKGROUND
A. This proceeding had its genesis in the notice of opportunity for hearing
that the Commission published in December 1999 in connection with the Army’s
application for an amendment to its materials license (SUB-1435) that would
authorizethe decommissioningof its JeffersonProvingGround(JPG) site located
in Madison, Indiana. 64 Fed. Reg. 70,294 (Dec. 16, 1999). As the notice
explained, under the aegis of that license the Army had engaged in activities
on the site that had produced an accumulation thereon of depleted uranium
(DU) munitions. What the Army sought was authorization, in accordance with
governing Commission regulations, for the restricted release of the site.
The notice went on to refer to a site decommissioning plan that the Army
had supplied to the Commission. On administrative review, that plan had
been found acceptable from the standpoint of allowing the commencement of a
284
technical review. Before the sought amendment could be approved, however, the
Commissionwouldhavetomakethefindingsrequiredbystatuteandregulation,to
be documented in a Safety Evaluation Report and an EnvironmentalAssessment.
Ibid.
In response to this notice, STV filed a timely hearing request. That request
was granted in LBP-00-9, 51 NRC 159 (2000) on a determination that STV
had established, as required by 10 C.F.R. §2.1205(h), both its standing and the
existence of an area of concern that was germane to the subject matter of the
proceeding. In the course of reaching that conclusion, LBP-00-9 noted that the
Army’s answer to the hearing request had pointed to ‘‘a distinct possibility that
the currentdecommissioningplan will undergorevisionin materialrespects’’and
had explicitly requested ‘‘that further proceedings be held in abeyance pending
the outcome of its anticipated further interaction with the NRC Staff with regard
to [that] plan.’’Id.at 161. On that score, the decision went on to observe that,
insofar as concerned the need for and timing of further adjudicatory action, the
situation was ‘‘quite fluid.’’Ibid.
In point of fact, following the grant of the hearing request in April 2000,
nothing transpired on the adjudicatory front apart from the submission by the
Army of quarterly status reports that reflected, among other things, that it had
submittedits decommissioningplanto STV forits considerationand hadreceived
commentsfromtheIntervenor.1Then,inJune2001,theArmytooktheunexpected
step that triggered the issue now at hand. It furnished the NRC with an entirely
new plan, which it characterizedas a ‘‘finaldecommissioning/licensetermination
plan’’ (LTP). According to the June 27 letter that accompanied its transmission,
this LTP was being submitted for the purpose of facilitating the termination of
the NRC license to which the amendment application referred. The letter went
on to note that, as had been previously discussed with the NRC Staff, the Army
proposed to submit the supporting Environmental Report by the end of October
2001.
As it turned out, the June 2001 LTP received a very cool reception from the
NRC Staff. Although, as noted in the notice of opportunity for hearing, the 1999
site decommissioning plan had obtained the acceptance on administrative review
that generally precedes the commencement of a technical review, in a September
27 letter the Army was informed that such acceptance was being withheld in the
case of the new LTP. According to the NRC official who signed the letter, the
Staff had ‘‘noted a number of deficiencies [in the LTP] that must be corrected
before the staff can initiate a technical review.’’ (In an attachment to the letter,
seven such deficiencies were summarized.) The letter went on to state that it
1 In a June 1, 2000 memorandum, memorializing a telephone status conference, I explicitly directed (at 2) that the
proceeding be ‘‘held in abeyance until it appears appropriate to move forward.’’ That directive did not, however,
forecast the developments a year later that now require consideration.
285
was anticipated that the environmental report that the Army was to supply in
late October would ‘‘answer some of the questions raised during the acceptance
review.’’ It then expressed the Staff’s desire to discuss the deficiencies with the
Army in order both to ensure that the Licensee understoodthe NRC concernsand
‘‘to develop a schedule for resubmission’’ of the LTP.
TheSeptember27letterwasfollowedonOctober17byanothercommunication
signed by the same Staff official. It provided the Army with formal notification
that the Staff considered the LTP to supercede the previously furnished site
decommissioning plan, with the consequence that the latter would receive no
further review.
B. On September 13, STV filed its request that the proceeding be held in
abeyance. Coming beforethe Staff had announcedthe results of its administrative
review of the LTP, the request was essentially founded on the fact that that
plan was ‘‘very different’’ from the earlier site decommissioning plan that had
prompted the STV decision to seek a hearing. Further, STV noted that it had
received an assurance that the NRC Staff would solicit public comment on the
LTP and, in a Federal Register notice, provide an opportunity to seek a hearing
on it. In these circumstances, STV thought it inappropriate to pursue a hearing
on the earlier plan; rather, the Intervenor thought it best that its granted hearing
request be put on the shelf to ‘‘conform to the new timeline to be submitted by
the NRC staff.’’
While notobjectingtoholdingthe proceedingin abeyance,in its September25
response to the STV request for that relief the Army noted that its agreement was
conditioned upon STV setting forth at the appropriate time its areas of concern
with regard to the LTP and the Army then having an opportunity to respond. The
NRC Staff, however, saw the matter quite differently in an October 1 filing.
Appending to that filing the September 27 letter to the Army summarized
above, the Staff maintained that, given the rejection of the LTP, the proceeding
initiated by the STV hearing request should be deemed moot. The Staff did
acknowledge (at 3) that the Army might endeavor to correct or to explain the
perceived deficiencies in the LTP and then to resubmit a revised version of that
plan. In the Staff’s view, however, until that should occur ‘‘there can be no case
or controversy before the Commission.’’Ibid.Given the current state of affairs,
the Staff concluded, ‘‘there can be no proceeding to consider the adequacy of’’
any site decommissioning plan.
On October 18, a telephone conference was held by Judge Murphy and me
with counsel and other representatives of the parties and the Staff for the purpose
of further exploringthe issues raised by the STV abeyance requestand the Staff’s
response to it. While not retreating from the position taken in that response, Staff
counsel did recognize that it was very likely that the Army would be submitting
revisions to the LTP to accomplish the ultimate objective that it had in seeking
the license amendment. Indeed,she observed,‘‘thestaff will be meetingwith [the
286
Army] to discuss the particulars of what needs to be put into the plan.’’ Tr. 27.
Moreover, counsel acknowledgedthat holding the proceeding in abeyance would
not disadvantage or prejudice the Staff as a practical matter. In that connection,
sheagreedthat,ifforsomereasontheArmyweretoelectnottosubmitanewplan,
upon that fact being brought to the Presiding Officer’s attention the proceeding
could be then terminated. Tr. 27-28. On that subject, Army counsel stated that it
was his client’s intent ‘‘at this juncture to proceed and to accomplish the goal that
[it has] been pursuing here all along.’’ Tr. 28. Although an abandonment of the
endeavor might be an option, he was ‘‘hard pressed to think of a circumstance’’
in which that option might be chosen.Ibid.
II. ANALYSIS
A. Central to thepositiontakenbythe NRC Staff is the premisethat, because
there has been a summary rejection of the LTP, the proceeding is necessarily
moot with the consequence that there is no longer an existing case or controversy
before me. (As the Army was advised in the October 17 letter, the Staff regards
the previously submitted site decommissioning plan to have been superceded
by the LTP and, therefore, no longer under its review.) Should that premise
survive scrutiny, it might well follow that a dismissal of the proceeding would be
mandated. For there is assuredly no reason to continue to maintain on the docket
a matter that has become entirely academic by reason of supervening events.
2
Accordingly, the first task is to determine whether the premise passes muster.
Had the Army chosen to withdraw its license amendment application upon
receiving word of the Staff’s rejection of the LTP for technical review, there
would be little room for doubt that the proceeding — established for the sole
purpose of considering whether that application should be granted — would have
become moot. Similarly, assuming without deciding that the Staff could have
chosen to deny the application upon determining that the successor LTP was
deficient, had that option been selected the granted hearing request seemingly
would have become academic. As we have seen, however, the Army has not
withdrawn its application and, insofar as the record before me reflects, the Staff
has not formally denied it.
To the contrary, for all that now appears it is safe to assume that the Army
has every intention of going forward with the license amendment application
by endeavoring to cure the deficiencies that the Staff has discerned in the LTP
— indeed, as seen, its counsel so represented during the October 18 telephone
2 This is so notwithstanding that the restriction placed on the federal judiciary by the ‘‘case or controversy’’ clause
in article III of the United States Constitution does not govern our jurisdiction.See Texas Utilities Generating Co.
(Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-714, 17 NRC 86, 93 (1983).
287
conference. This is scarcely surprising. The application was obviously motivated
by the Army’sdesire to settle the matterof the long-termtreatmentto be accorded
to the DU munitions now accumulated on the JPG site. There is no reason to
believe that that desire was diminished to any extent by the Staff’s determination
that, in its present form, the submitted LTP has fatal flaws. Rather, there is every
reason to think that the Army regardsits currenttask to be the remedyingof those
discerned flaws.
Insofar as the Staff is concerned, its September 27 letter reflects with clarity
not only an assumption that the Army will move forward to rectify the existing
LTP efficiencies, but also a Staff desire to meet with the Licensee to facilitate the
process — including the development of ‘‘a schedule for resubmission’’ of the
LTP. In short, far from considering the license amendment application to have
failed, the Staff is actively involved in the matter of the further development
of its necessary underpinning — an acceptable (to the Staff at least) site
decommissioning (i.e., license termination) plan.
Inthesecircumstances,fromthestandpointofmootness,itdoesnotappearthat
analytically there is a material difference between the current seemingly novel
situation and a more typical one in which there is but one submitted plan that
must undergo substantial revision at the Staff’s insistence before an adjudicatory
hearing on it might be held. If, for example, the Army had stayed with the plan
submittedin 1999butwasnowconfrontedwith theneedto modifyit substantially
in order to meet Staff concerns, would there be any possible basis for a claim of
mootness? I would think not.
In that regard, we have seen that from the very beginning of this proceeding
there was a recognition by the Army, noted in the decision granting the hearing
request, that the plan then on the table might undergo significant revision along
the way. In fact, to repeat, that recognitionhad led the Army to ask in its response
to the STV hearing request that further proceedings be held in abeyance pending
its further interaction with the Staff with regard to that plan. Although it might
not have been then foreseen that the interaction with the Staff would extend to a
substitute plan that the Army would elect to submit, it is difficult to see why that
fortuitous circumstance should be accorded operative importance.
In sum, I conclude that the continued existence of the license amendment
application,3coupledwiththelikelihoodthatarevisedLTPwillsurfacethatmight
adequately address the Staff’s current concerns and thus be ripe for adjudicatory
3 In an October 29 letter submitted by the Staff following the telephone conference for the purpose of summarizing
its position, its counsel maintains that,because the Staff has discontinued its review of the site decommissioning
plan submitted with the license amendment application, ‘‘the license amendment under consideration has become
moot and is no longer pending before it.’’ By ‘‘license amendment’’ counsel apparently has reference to the plan
rather than to the license amendment application itself. At least insofar as the information at hand reflects, the Staff
did not require the Army to file a new and distinct application when it submitted the LTP last June and likewise
presumably will not require a new and distinct application in connection with any revised LTP that might come to
(Continued)
288
consideration,precludesa dismissalofthisproceedingonthegroundofmootness.
What remains to be determined is whether there is some other justification for
terminating the proceeding given the current state of affairs. I now turn to that
question.
B. At the October 18 telephone conference, Staff counsel confirmed that, as
shehadpreviouslyinformedSTV’srepresentative,anewnoticeofopportunityfor
hearing would be published in connection with the LTP before any adjudicatory
proceedings were conducted on it. Tr. 18. As she noted, the Staff regards the
LTP as being so different from its predecessor site decommissioning plan that
the notice that had been issued in December 1999 did not adequately apprise
the public of the content of what now might be considered. Given that intent, a
dismissal of this proceeding would not foreclose STV from participation in any
adjudicatory hearing on the LTP that might take place. It would, of course, be
free to file a hearing request in response to the new notice.
The real question is not, however, whether it is necessary to keep this
proceedingalive inorderto ensurethat STV will haveanopportunityto challenge
the LTP if not satisfied that, as revised in response to Staff objections, the plan
meets its concerns. Rather, it is whether any useful purpose might be served by
requiring that Intervenor in such circumstances to return to square one and to file
a new hearing request in which it would be obligated to replow the entire ground
covered in the hearing request granted 18 months ago in LBP-00-9.
If such a purpose exists, it is most elusive indeed. I can perceive no good
reason for putting STV to the burden, light as it might turn out to be, of having
to reestablish its standing to question an Army decommissioning plan (no matter
how denominated) for the JPG site. Nor is there readily apparent cause for
requiring it to do more than demonstrate that, as it had an area of concern that
was germane to the 1999 site decommissioning plan, so too it has such an area
of concern with regard to whatever version of the LTP might be cited in the new
Federal Register notice.4
It need be added in this regard only that neither the Army nor the NRC
Staff has claimed, let alone shown, that it would be prejudiced by retaining
this proceeding in a state of suspended animation pending further developments
respecting the LTP. Indeed, once again, it was the Army itself that at the
very outset had successfully sought holding a hearing in abeyance pending the
the fore. Absent contrary indication, and here there is none, it is reasonable to assume that a license amendment
application concerned with the decommissioning of a particular site is deemed to cover not only the specific plan that
accompanied it but, as well, any revisions to that plan or substitute plans that might surface during the consideration
of what the decommissioning effort might require.
4 Although I need not reach them here, the approach taken by the NRC Staff in this matter raises a number of
unanswered questions that might prove of procedural significance in another case. One such question relates to the
circumstances in which the Staff is justified in concluding that a new hearing notice is required despite the fact that
it has chosen to leave intact the license amendment application that was the subject of the prior notice.
289
outcomeof the interaction between it and the Staff regardingthe plan for JPG site
decommissioning.
For the foregoing reasons, the STV request to hold in abeyance further
proceedings in this cause is hereby granted subject to the following conditions.
5
1. Pending further order of the Presiding Officer, the Army shall continue to
furnish quarterly status reports, the next one to be due at the end of December
2001. Should the license amendment application be withdrawn or abandoned,
that fact is to be reported immediately by the Army.
2. In the event that the Commission should publish in the Federal Register a
notice of opportunity for hearing in connection with the LTP or some successor
JPG site decommissioning plan, within thirty (30) days of that publication STV
shall file with the Presiding Officer, and serve upon the Army, a statement
specifying its area(s) of concern, if any, relative to the plan in question.
3. Within 10 days of its receipt of the STV statement outlining its areas of
concern regarding the new plan, the Army may file a response confined to the
question of whether a germane area of concern has been adequately identified in
the statement.
It is so ORDERED.
BY THE PRESIDING OFFICER
6
Alan S. Rosenthal
ADMINISTRATIVE JUDGE
Rockville, Maryland
November 7, 2001
5 In actuality, the grant of the request has the effect of continuing the suspension of activity in the proceeding that
had been decreed in June 2000.See supra note 1.
6 Copies of this Memorandum and Order were sent this date by Internet electronic mail transmission to the
representative of STV, counsel for the Army, and the NRC Staff.
290
Cite as 54 NRC 291 (2001)LBP-01-33
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
Charles Bechhoefer,Presiding Officer
Dr. Richard F. Cole,Special Assistant
In the Matter of Docket Nos. 40-3453-MLA-4
40-3453-MLA-5
(ASLBP Nos. 99-763-05-MLA
00-781-07-MLA)
(Amendment of License
Condition (LC) 55 B(2),
Source Material
License SUA-17)
MOAB MILL RECLAMATION TRUST
(formerly ATLAS CORPORATION)
(Moab, Utah Facility) November 15, 2001
In two consolidated proceedings involving the remediation and decommis-
sioning of the Moab Mills tailings site, the Presiding Officer terminates the
proceedings as a result of transfer of jurisdiction over the site, effective Octo-
ber 30, 2001, to the Department of Energy, in accordance with the provisions of
the Floyd D. Spence National Defense Authorization Act (Pub. L. No. 106-398).
MEMORANDUM AND ORDER
(Terminating Proceedings)
By letter dated November 1, 2001, which transmitted copies of a letter dated
October25,2001,fromtheNRCStafftotheTrusteeoftheMoabMillReclamation
291
Trust, the NRC Staff informed the Presiding Officer and his Special Assistant for
these proceedings, as well as all parties,that, as required by the Floyd D. Spence
National Defense Authorization Act (Pub. L. No. 106-398), which directed that
the site be transferred to the U.S. Department of Energy no later than October 30,
2001, the materials license under review in these consolidated proceedings
has been terminated, effective October 30, 2001. A further description of the
provisionsofPub.L.No.106-398appearsinmyMemorandumandOrder(Motion
and Supplement to Motion for Prompt Relief; Alleged Improper Contacts), dated
June 27, 2001 (unpublished), and in my Memorandum and Order (Denying
Motion for Reconsideration), dated August 10, 2001 (unpublished).
Accordingly, since NRC no longer has jurisdiction to direct remediation of
the site in question, these proceedings are hereby terminated.Efforts of the
Intervenor, Ms. Sarah Fields, to participate in the site remediation process must
hereafter be directed to the Department of Energy.
IT IS SO ORDERED.
Charles Bechhoefer, Presiding Officer
ADMINISTRATIVE JUDGE
Rockville, Maryland
November 15, 2001
[Copiesof this Memorandumand Orderhave been transmitted this date by e-mail
to counsel or representatives of each of the parties.]
292
Cite as 54 NRC 293 (2001)LBP-01-34
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
G. Paul Bollwerk, III,Chairman
Dr. Jerry R. Kline
Dr. Peter S. Lam
In the Matter of Docket No. 72-22-ISFSI
(ASLBP No. 97-732-02-ISFSI)
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) November 30, 2001
In this proceeding concerning the application of Private Fuel Storage, L.L.C.
(PFS), under 10 C.F.R. Part 72 to construct and operate an independent spent
fuel storage installation (ISFSI), acting pursuant to 10 C.F.R. §2.749, the
Licensing Board denies a PFS request for summary disposition in its favor
regarding contention SUWA B, Railroad Alignment Alternatives, because there
is a deficiencyin connectionwith the NRC Staff’sNationalEnvironmentalPolicy
Act (NEPA) analysis of at least one rail spur alignment alternative proffered by
PFS in support of its dispositive motion.
RULES OF PRACTICE: SUMMARY DISPOSITION (BURDEN OF
PERSUASION; BURDEN OF PROOF)
Under 10 C.F.R. §2.749(a), (d), summary disposition may be entered with
respect to any matter (or all of the matters) in a proceeding if the motion, along
with anyappropriatesupportingmaterial, showsthatthere is‘‘nogenuineissue as
to any material fact and that the moving party is entitled to a decision as a matter
of law.’’ The movantbears the initial burdenof makingthe requisite showingthat
293
there is no genuine issue as to any material fact, which it attempts to do by means
of a required statement of material facts not at issue and any supporting materials
(including affidavits, discovery responses, and documents) that accompany its
dispositive motion. An opposing party must counter each adequately supported
material fact with its own statement of material facts in dispute and supporting
materials, or the movant’s facts will be deemed admitted.See Advanced Medical
Systems, Inc.(One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98,
102-03 (1993).
NEPA: CONSIDERATION OF ALTERNATIVES; INDEPENDENT
INQUIRY BY FEDERAL AGENCY; NRC RESPONSIBILITIES
RULES OF PRACTICE: SUMMARY DISPOSITION (NEPA)
In the context of the environmental impact statement drafting process, when
a reasonable alternative has been identified it must be objectively considered
by the evaluating agency so as not to fall victim to ‘‘the sort of tendentious
decisionmaking that NEPA seeks to avoid.’’I-291 Why? Association v. Burns,
372 F. Supp. 223, 253 (D. Conn. 1974),aff’d,517 F.2d 1077 (2d Cir. 1975).
In this vein, 10 C.F.R. §51.70(b) requires that for a draft environmental impact
statement (DEIS), the NRC Staff must independentlyevaluate, and is responsible
for the reliability of, all the information used in the DEIS.
NEPA: CONSIDERATION OF ALTERNATIVES; ENVIRONMENTAL
IMPACT STATEMENT (LICENSING BOARD DECISION AS
AMENDMENT)
RULES OF PRACTICE: SUMMARY DISPOSITION (NEPA)
In support of its motion for summary disposition, if the movant offers a
new alternative not analyzed by the Staff in its DEIS and, in responding to
the dispositive motion, the Staff acknowledges it has not fully evaluated this
alternative and indicates that this shortcoming precludes it from expressing an
opinion on the validity of the movant’s material factual statements regarding an
alternative, there remains a deficiency relative to the agency’s NEPA process
that precludes the presiding officer from making a merits determination that
all reasonable alternatives have been adequately developed and analyzed as
is required by NEPA. To whatever degree a presiding officer may be able
to revise/supplement the agency’s environmental impact analysis pro tanto in
rendering a summary disposition ruling, that authority does not extend to this
particular shortcoming associated with Staff compliance with section 51.70(b).
294
MEMORANDUM AND ORDER
(Denying Motion for Summary Disposition Regarding
Contention SUWA B)
Pursuant to 10 C.F.R. §2.749, Applicant Private Fuel Storage, L.L.C. (PFS),
hasrequestedthatsummarydispositionbeenteredinitsfavorregardingIntervenor
Southern Utah Wilderness Alliance’s (SUWA) contention SUWA B, Railroad
Alignment Alternatives. As admitted, contention SUWA B asserts that PFS, in
its application for authorization to construct and operate a 10 C.F.R. Part 72
independent spent fuel storage installation (ISFSI) in Skull Valley, Utah, has
failed adequatelyto developand analyze a meaningfulrange of alternatives to the
proposed Low Corridor rail spur as is required under the National Environmental
PolicyActof1969(NEPA).TheNRCStaffsupportsthePFSsummarydisposition
request, while SUWA opposes the request.
For the reasons set forth below, the Board denies the PFS requestfor summary
disposition relative to contention SUWA B.
I. BACKGROUND
Asthe LicensingBoardoutlinedin LBP-98-29,48 NRC 286,289(1998),inits
initial June 1997 license application for its proposed ISFSI, PFS put forward two
methods — truck and rail — for transporting shipping casks containing nuclear
reactor spent fuel to the Skull Valley area from the Union Pacific mainline that
runs along the southern shore of the Great Salt Lake. Relative to the latter option,
in that application PFS proposed construction of a rail spur from near the Rowley
Junction Interstate 80 (I-80) interchange that would run south, parallel to the
existing Skull Valley Road that roughly bisects the Skull Valley, and then west
onto the reservation of Intervenor Skull Valley Band of Goshute Indians (Skull
Valley Band) where the facility would be located. In August 1998, however, PFS
filed a license application amendment requesting to make what has been labeled
the Low Junction or Low Corridor rail spur the preferredrail transportationroute.
That route would run from Skunk Ridge, near the Low, Utah I-80 interchange,
south along the western side of Skull Valley, and finally onto the Skull Valley
Band reservation.
In response to this development, Intervenor SUWA sought to enter this
proceeding and filed two contentions challenging the proposed licensing
amendment. The Licensing Board granted SUWA party status and admitted
one of SUWA’s two proffered contentions, contention SUWA B.See LBP-99-3,
49 NRC 40,aff’d,CLI-99-10, 49 NRC 318 (1999). Contention SUWA B, which
was admitted by the Board relative to the issue of the alignment alternatives for
the proposed railroad spur, states:
295
The License Application Amendment fails to develop and analyze a meaningful range of
alternatives to the Low Corridor Rail Spur and the associated fire buffer zone that will preserve
the wilderness character and the potential wilderness designation of a tract of roadless Bureau
of Land Management (BLM) land — the North Cedar Mountains — which it crosses.
Id.at 53.
In June 2000, the Staff issued its draft environmental impact statement
(DEIS) regarding the proposed PFS facility.See Draft Environmental Impact
Statement for the Construction and Operation of an Independent Spent Fuel
Storage Installation on the Reservation of the Skull Valley Band of Goshute
Indiansandthe Related TransportationFacility in TooeleCounty,Utah, NUREG-
1714 (June 200) [hereinafter DEIS]. In its DEIS, the Staff discussed the use of
the railroad spur to transport spent fuel to the storage facility and the proposed
location of the rail line.See id.at 2-12 to -14.
Based upon the DEIS, PFS filed the instant motion, supported by a statement
of material facts not in dispute, claiming there is no genuine issue of material fact
in dispute with respect to the concerns raised in contention SUWA B and that a
decision on the merits shouldbe entered in favor of PFS on that contention. [PFS]
Motion forSummaryDisposition of ContentionSUWA B — Railroad Alignment
Alternatives (June 29, 2001) [hereinafter PFS Motion]. In its motion, PFS alleges
that the United States Department of the Interior’s Bureau of Land Management
(BLM) considered and rejected the nearby North Cedar Mountain Area (NCMA)
for designation as a protected wilderness area under the Wilderness Act of 1964,
16 U.S.C. §§1131-1136, and the Federal Land Policy and Management Act of
1976 (FLPMA), 43 U.S.C. §§1701-1784; therefore, the purported impact of the
LowCorridorrailspuralignmentonthe NCMA’swildernessdesignationismoot.
See PFS Motion at 8. In addition, PFS claims to have considered a number of
‘‘reasonablealternative’’alignmentsfor the rail line, but determinedthat the Low
Corridor rail spur was the preferable alternative.See PFS Motion at 9.
On July 19, 2001, in its response to the PFS summary disposition motion, the
Staff declaredits supportfor the PFS request.See NRC Staff’s Response to [PFS]
Motion forSummaryDisposition of ContentionSUWA B — Railroad Alignment
Alternatives(July19,2001)[StaffResponse]. Initsresponse,theStaffagreesthat
the potential for designation of the NCMA as a wilderness area is speculative and
so does not warrant consideration of additional alternatives.See Staff Response
at 11. In addition, the Staff contends that alternative alignments were adequately
considered in the DEIS.See id.at 8.
In its July 23, 2001 response, SUWA opposes the PFS dispositive motion
regarding contention SUWA B, asserting it is premature and not based on
undisputed material facts.See [SUWA] Response (and Objection) to [PFS’s]
Motion for Summary Disposition of SUWA’s Contention B (July 23, 2001) at 4,
8 [hereinafter SUWA Response]. In addition, SUWA argues that both PFS and
296
the NRC have failed to consider a reasonable range of alternatives for the Low
Corridor rail spur.See id.at 7.
II. ANALYSIS
A. Standard for Summary Disposition Review
The standard governing motions for summary disposition is well established
and has been used repeatedly by this Licensing Board in ruling on previous PFS
motions, and we again will rely upon that standard in this matter:
Under 10 C.F.R. §2.749(a), (d), summary disposition may be entered with respect to
any matter (or all of the matters) in a proceeding if the motion, along with any appropriate
supporting material, shows that there is ‘‘no genuine issue as to any material fact and that
the moving party is entitled to a decision as a matter of law.’’ The movant bears the initial
burden of making the requisite showing that there is no genuine issue as to any material
fact, which it attempts to do by means of a required statement of material facts not at issue
and any supporting materials (including affidavits, discovery responses, and documents) that
accompany its dispositive motion. An opposing party must counter each adequately supported
material fact with its own statement of material facts in dispute and supporting materials, or the
movant’s facts will be deemed admitted.See Advanced Medical Systems, Inc.(One Factory
Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102-03 (1993).
LBP-99-23, 49 NRC 485, 491 (1999).
With this precedentin mind,the Boardaddressesthe PFS summarydisposition
motion regarding contention SUWA B.
B. Contention SUWA B
1. PFS Position
InresponsetoSUWA’s contentionthatPFS hasfailedto developa meaningful
range of alternatives to the Low Corridor rail spur, PFS submits twenty-six
purportedundisputedmaterialfactstodemonstratethattherehasbeenanadequate
consideration of rail spur alternatives so as to merit the entry of summary
disposition in its favor.See PFS Motion, Statement of Material Facts on Which
No Genuine Dispute Exists. In support of this result, PFS first argues that in
1980the BLM consideredandrejectedthe NCMA fordesignationas a wilderness
area on the basis that human imprints and developments had hampered the
opportunity for solitude and recreational activity in the NCMA.See PFS Motion
at 7. Thereafter, in 1999 the BLM reassessed Utah lands for possible wilderness
areadesignation,butagaindidnotincludetheNCMA.Seeid.at8. Giventhisclear
BLM rejection of the NCMA as a wilderness area, PFS asserts, SUWA’s concern
297
that the proposed rail line would hamper any future potential for wilderness
designation is moot.
In addition, PFS contends that a decision regarding contention SUWA B
shouldbe entered in its favorbecause PFS has adequatelyconsideredand rejected
all reasonable alternatives to the proposed rail line.See id.at 9. According to
PFS, the alternatives it has considered are the proposed Low Corridor spur line; a
different alignment slightly to the east of the proposed Low Corridor rail spur; an
alignmentthatwouldrun throughthe middleof SkullValley; and fouralignments
that would run through the eastern portion of Skull Valley.
As was noted earlier, the Low Corridor alignment, which PFS proposes to
implement, connects the planned ISFSI facility with the Union Pacific railroad
mainline at Low Junction, Utah.
1 As advanced by PFS, this alignment would
isolate the far easternmost portion of the NCMA, with the result that the area
thereafterwouldbe legallyprecludedfromconsiderationasa statutorilyprotected
wilderness area.
2 Relative to the alternative central alignment that would run
from the existing Union Pacific mainline through the center of the Skull Valley,
according to PFS this alignment would require construction of a bridge to cross
I-80 and acquisition of a permit from the United States Army Corps of Engineers
to cross an area of wetlands, which PFS maintains the Corps of Engineers will be
reluctant to grant.See PFS Motion at 12 (citing 40 C.F.R. §230.10(a)). Further,
in connection with the four eastern alignments that would begin at various points
along the Union Pacific mainline north of Skull Valley and run south along the
east side of the Skull Valley road, PFS declares these alignments were rejected
because they also would require crossing I-80 and would aversely affect wetlands
at Horseshoe Springs as well as neighboring homes and ranches.
In addition to these rail spur siting alternatives, PFS claims to have considered
another alternative alignment, which it labels the West Skull Valley Alternative.
Although the West Skull Valley Alternative is similar to the Low Corridor
alignment, to avoid the NCMA it runs 2000 to 3000 feet to the east of the
proposed Low Corridor rail spur for roughly 6.5 miles.See PFS Motion, Attach.
at 5 (Declaration of Douglas Hayes) [hereinafter Hayes Declaration]. According
to PFS, pushing the alignment east requires careful routing to avoid a parcel of
State-owned land near the northern section of the NCMA, which PFS indicates
it would not utilize because of the State’s opposition to its proposed ISFSI,
and a large section of wetlands (i.e., mudflats) near the southern portion of the
NCMA, which it would avoid to avert the potential environmental impacts that
1 The proposed Low Corridor alignment is described in DEIS §2.1.1.3.
2 According to PFS, the Wilderness Act of 1963 requires all wilderness areas to be roadless areas of 5000 acres
or more. As a consequence, the proposed alignment that would ‘‘cut off’’ the easternmost section of NCMA would
preclude that section from being considered as a wilderness area, although the remainder of the NCMA could still
be designated because it would exceed the 5000 acres requirement.See PFS Motion at 6.
298
could occur.
3 PFS also claims that, in contrast to the proposed Low Corridor
alignment in which the material needed to be ‘‘cut’’ to level portions of the rail
bed is approximately equal to the material needed to ‘‘fill’’ other bed portions
to make them level, the West Skull Valley Alternative would require PFS to
bring from offsite an additional 260,000 cubic yards of ‘‘fill’’ earth to level the
rail corridor, raising the cost of construction 15% to 25%.See PFS Motion at
11; Hayes Declaration at 6-7. Also, according to PFS, although a number of
the environmental impacts (e.g., noise, flora and fauna, air pollution, resources
consumption) involved in the West Skull Valley Alternative are similar to the
LowCorridoralignment,theadditionalfillwouldadverselyaffectthesurrounding
environment to a greater degree. This is so, PFS claims, because construction of
that alignment would result in berms up to 20 feet high that would increase the
visual impact of the rail line as well as blockaccess to surroundingland and roads
to the west, thereby potentially interfering with wildlife and cattle grazing and
wildfire fighting. As a result, PFS concludes this alignment should be rejected in
favor of the Low Corridor alignment.See PFS Motion at 11-12.
2. Staff Position
The Staff indicates that after reviewing the PFS statement of material facts it
agrees with Material Fact Nos. 6-9 and 17-26, but does not express a position on
Material Fact Nos. 10-16, which concern the PFS analysis of the proposed West
Skull Valley Alternative.See Staff Response at 8. Specifically, in support of the
PFS assertions that reasonable alternatives to the Low Corridor alignment have
received sufficient consideration, the Staff declares that the DEIS ‘‘explicitly’’
considered two alternatives to the proposed alignment.Id.at 9. According to the
Staff, the DEIS considered one new rail corridor that would run along the eastern
side of Skull Valley (along Skull Valley Road) and another that would use an
existing rail line east of the Stansbury Mountains, which are on the eastern side
of Skull Valley, and a newly constructed rail corridor between 1-80 and the north
end of the mountainsthat would continuesouth along the eastern side of the Skull
Valley Road. The Staff claims that neither the eastern nor the northernalternative
was considered acceptable due to their likely impact upon the Horseshoe Springs
wetlands and the surrounding homes and ranches near the Skull Valley Road,
while the northernline, the Staff declares, would requiresubstantial excavationat
the north end of the Stansburymountains. Accordingto the Staff, when compared
to the proposed Low Corridor alignment, both alternatives would involve greater
environmentalimpacts.See id.at 10.
3 PFS contends that it is not credible to plan a rail line alternative through State-owned lands because of the
‘‘State’s vehement opposition to this project.’’ PFS Motion at 11.
299
The Staff also notes that while it did not afford DEIS consideration to the
West SkullValleyAlternativeoutlinedbyPFS inits summarydispositionmotion,
Staff expert Gregory P. Zimmerman is satisfied with the conclusions drawn by
PFS concerning this alternative.See Staff Response at 3 n.3. For his part, Mr.
Zimmerman indicates that the Staff was not given specific design details for this
additional western alignment and hence is unable to fully evaluate the proposed
alternative.See Staff Response, unnumbered attach. at 5 (Affidavit of Gregory
P. Zimmerman Concerning Contention SUWA B) [hereinafter Zimmerman
Affidavit]. Moreover, because the Staff did not fully evaluate the proposed
alternative, Mr. Zimmerman declares the Staff cannot express an opinion on
Material Fact Nos. 10-16. Nonetheless, he declares he agrees with the PFS
conclusion that the West Skull Valley Alternative would result in similar or
greater impacts to the environmentthan the Low Corridor alignment.See id.
Also in supportof the PFS motion, the Staff maintains that, given the previous
BLM review and rejection of the NCMA for designation as a wilderness area,
consideration of additional alternatives is unwarranted as ‘‘entirely speculative.’’
Staff Response at 11. According to the Staff, a possible change in legislation
or policy that would compel consideration of an additional alternative does not
require consideration in the DEIS under the well-established NEPA ‘‘rule of
reason’’ analysis.See id.at 14 (citing Sacramento Municipal Utility District
(Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135, 145-46
(1993)). The Staff thus concludes that this speculative possibility of wilderness
designation does not require consideration in the DEIS.See id.
3. SUWA Position
Inits responsein oppositionto the PFS motion, SUWA claimsinitially that the
PFSmotionispremature.SUWAcontendsthatinaffirmingtheLicensingBoard’s
admission of contention SUWA B in CLI-99-10, the Commission acknowledged
that NEPA requires PFS and the Staff to perform an analysis of reasonable
alternatives, which SUWA asserts must be done in the context of the final
environmental impact statement (FEIS) for the proposed PFS facility. Because
the Staff has not yet completed the FEIS, SUWA claims that at this point in the
proceeding its contention is not ripe for a decision on the merits.See id.at 4.
SUWA also argues that the PFS presentation of the West Skull Valley
Alternative, which was put forth for the first time in the PFS dispositive motion,
cannot be incorporated into the DEIS.See id.at 5. SUWA contends that the
PFS presentation was not ‘‘an objective presentation of the pros and cons’’ for
that alternative, but instead is ‘‘a justification of the Low Corridor alignment
and a vigorous argument as to why that new alternative is not worthy of further
consideration.’’Id.at 5-6. The PFS presentation, SUWA declares, is not
sufficiently objective or informative to serve the NEPA purpose of instructing
300
the public and the eventual decision maker regarding the available reasonable
alternativesto the PFS proposal. SUWA thus asserts this evaluationshouldnot be
incorporated into the DEIS and so cannot be the basis for summary disposition.
In addition, SUWA complains that PFS and the Staff have not adequately
considered other reasonable alternatives to the proposed Low Corridor rail spur.
See id.at 6. SUWA states that the DEIS ‘‘consider[ed]’’ and dismissed two
alternatives by only giving them ‘‘short shrift shows’’ of consideration.Id.And
in doing so, SUWA claims the Staff failed to formulate an alignment that would
minimize the rail line right of way or fire buffer zones to reduce the impact these
areas would have upon the ‘‘wilderness character’’ of the NCMA.See id.at 7.
SUWA also argues that the agency did not formulate an alternative that, like
the Low Corridor alignment, would originate at Skunk Ridge but not cross the
NCMA.See id.
SUWA’s response further alleges that many of the material facts put forth by
PFS are in dispute. In particular, SUWA contends that the PFS rejection of any
alternativerailspurthatwouldcrossState-ownedlandisbaseduponan‘‘incorrect
assumption.’’Id.at 8. Focusing on the Western Skull Valley Alternative, SUWA
statesthattheparceloflandPFSassertsconstrainsthatalignmentis‘‘Stateschool
trust land’’ that the State by law must manage in a manner that will ‘‘maximize[]
monetary return.’’Id.at 9 (citing National Parks and Conservation Association
v. Board of State Lands,869 P.2d 909, 920 (Utah 1993)). According to SUWA,
because of the land’s status, the State cannot consider its own opposition to the
PFS project when evaluating a PFS request to use the land, but must act in a
manner that will maximize the benefits for the State’s school system. SUWA
thus concludes that, contrary to the stated PFS assumption, the use of the State-
owned land is not per se unreasonable so as to excuse the need for any further
consideration of alignments crossing such land.
SUWA’sfinalargumentinoppositiontothePFSdispositivemotionrespondsto
the Applicant’s position that BLM and congressional refusal to designate NCMA
as a wilderness area renders contention SUWA B moot. This assertion, SUWA
contends,waspreviouslyaddressedinLBP-99-3inwhichtheBoardindicatedthat
because the NCMA displays wilderness characteristics, the Staff must consider
alternatives that would minimize impacts upon these characteristics, regardless
of whether the BLM or the Congress plans to approve SUWA’s petition for
wilderness designation.See id.at 11. Furthermore, SUWA argues, considerable
congressional support does exist for protecting the NCMA with a wilderness
designation, thus establishing that contention SUWA B is not moot.
C. Board Ruling
Addressing first the PFS and the Staff claims that in previous evaluations the
BLM and the Congress have failed to acknowledge NCMA as a wilderness area,
301
thereby rendering contention SUWA B moot, we note that, as SUWA indicates,
this issue previously was raised by both PFS and the Staff and addressed by the
Board in admitting contention SUWA B. As we stated in LBP-99-3, 49 NRC at
51 n.6 (citation omitted):
Both PFS and the Staff maintain that the fact BLM previously declined to designate the
area in question as potential ‘‘wilderness’’ area for further consideration by Congress renders
speculative any SUWA injury in losing the opportunity to have the land designated for
protection. . . . As we have noted, however, in the context of NEPA, even absent the FLPMA
statutory scheme, there would be a need to consider the natural state of the land and the
alternatives, if any, that would be available to preserve that status.
Having already ruled on this issue, the Board sees no reason to reconsider its
determination at this time.
4
While SUWA thus has the better of this argument,its approachto the merits of
the balance of the PFS claims in support of its motion leaves much to be desired.
The Commission’s Rules of Practice make it clear that in opposing a motion for
summarydisposition,apartymustannexashortandconcisestatementofmaterial
facts upon which it contends that there is a genuine issue to be heard.See 10
C.F.R. §2.749(a). Moreover, under these regulations, all material facts set forth
in the moving party’s statement will be deemed admitted unless controverted in
a statement of disputed material facts submitted by the opposing party.See id.
In this instance, although PFS submitted twenty-six material facts about which
PFS claims no genuine dispute exists, in responding to the PFS motion SUWA
provided only a legal brief without the required statement of material facts in
dispute. Thus, on the basis of the SUWA submission, in accord with section
2.749(a) the Board would be justified in finding all twenty-six material facts
submitted by PFS as not in dispute. Nonetheless, this SUWA pleading defect
turns out not to be controllingbecause another deficiencypertainingto the Staff’s
evaluation of the alternative routes to the Low Corridor alignment, in particular
the recentlyproposedWest Skull ValleyAlternative, makesthe entryof summary
disposition inappropriate in this instance.
In the context of the environmental impact statement drafting process, when
a reasonable alternative has been identified it must be objectively considered
by the evaluating agency so as not to fall victim to ‘‘the sort of tendentious
decisionmaking that NEPA seeks to avoid.’’I-291 Why? Association v. Burns,
372 F. Supp. 223, 253 (D. Conn. 1974),aff’d,517 F.2d 1077 (2d Cir. 1975).
In this vein, 10 C.F.R. §51.70(b) requires that for a DEIS, the NRC Staff must
independentlyevaluate,andisresponsible forthereliabilityof,alltheinformation
4 Given that there has been no statutory wilderness designation regarding the NCMA, in any further litigation
concerning this contention the question of the ‘‘natural state’’ of the area at issue will be a matter for party
presentations via direct and/or cross-examination testimony.
302
used in the DEIS.
5 As was noted above,in the DEISfor the proposedPFS facility,
the Staff considered two alternatives to the Low Corridor alignment: a corridor
originating in the northern portion of Skull Valley and a corridor that would
run through the eastern section of Skull Valley.See DEIS at 2-42 to -43. In
support of its motion for summary disposition relative to contention SUWA B,
however, PFS presented a new western alternative bypassing the NCMA area in
controversy that PFS asserts definitively establishes all reasonable alternatives
have been given consideration. This alternative was not analyzed by the Staff
in the DEIS.
6 Indeed, in responding to the PFS dispositive motion, although
the Staff’s supporting witness indicated satisfaction with the PFS evaluation of
this alignment, he also acknowledged that the Staff has not fully evaluated this
proposed western alternative.See Zimmerman Affidavit at 5. The Staff echoed
thischaracterization,indicatingthatthisshortcomingprecludeditfromexpressing
an opinion on the validity of the PFS material factual statements regarding this
alternative alignment.
7 See Staff Response at 8.
There thus remains a deficiency relative to the agency’s NEPA process that
precludes the Board from making a merits determination that all reasonable
alternatives to the proposed Low Corridor alignment have been adequately
developed and analyzed as is required by NEPA.
8 Accordingly, summary
disposition of contention SUWA B is inappropriate at this juncture.
9
5 10 C.F.R. §51.70(b) provides:
The draft environmental impact statement will be concise, clear and analytic, will be written in plain
language with appropriate graphics, will state how alternatives considered in it and decisions based on it
will or will not achieve the requirements of sections 101 and 102(1) of NEPA and of any other relevant and
applicable environmental laws and policies, will identify any methodologies used and sources relied upon,
and will be supported by evidence that the necessary environmental analyses have been made. The format
provided in section 1(a) of appendix A of this subpart should be used. The NRC staff will independently
evaluate and be responsible for the reliability of all information used in the draft environmental impact
statement.
6 In this regard, we note that the total number of alternatives to the Low Corridor alignment considered by PFS, at
least as characterized in its summary disposition motion, apparently does not coincide with the number discussed by
the Staff in its DEIS.Compare PFS Motion at 9 (six rail alignment alternatives)with Staff Response at 9 (two rail
alignment alternatives).
7 To whatever degree the Licensing Board may be able to revise/supplement the agency’s environmental impact
analysis pro tanto in rendering a summary disposition ruling, that authority does not extend to the particular
shortcoming associated with Staff compliance with section 51.70(b) that is extant in this proceeding.
8 Although the focus of our ruling here is the sufficiency of the discussion of rail spur alternatives in light of the
West Skull Valley Alternative proposed by PFS in its dispositive motion, nothing in this ruling precludes further
litigation regarding the expressed SUWA concern about the sufficiency of the environmental impact analysis of fire
buffer zone alignment alternatives or the validity of the PFS premise that State lands are unavailable for rail spur
use.See SUWA Response at 7, 8-10.9 Given our ruling in this regard, we need not reach the question of whether, as SUWA suggests, in the NEPA
context we are precluded from granting the PFS summary disposition request because an FEIS has not yet been
issued. We note, however, that to the degree the SUWA objection regarding the appropriateness of summary
disposition at this juncture is based on a concern about the ability of a party to contest subsequent changes in the
FEIS, it does not account for the availability of a late-filed contention as a means to challenge any significant change
that occurs between the DEIS and the FEIS.See10 C.F.R. §2.714(b)(2)(iii).
303
III. CONCLUSION
Relative to the June 2000 DEIS, because there is a deficiency in connection
with the sufficiency of the Staff analysis of at least one Low Corridor rail
spur alignment alternative proffered in support of the PFS request for summary
disposition regarding contention SUWA B, Railroad Alignment Alternatives, we
deny the PFS dispositive motion.
Fortheforegoingreasons,itis,thisthirtiethdayofNovember2001,ORDERED
that the June 29, 2001 motion of PFS for summary disposition of contention
SUWA B is denied.
THE ATOMIC SAFETY AND
LICENSING BOARD
10
G. Paul Bollwerk, III, Chairman
ADMINISTRATIVE JUDGE
Jerry R. Kline
ADMINISTRATIVE JUDGE
Peter S. Lam
ADMINISTRATIVE JUDGE
Rockville, Maryland
November 30, 2001
10Copies of this Memorandum and Order were sent this date by Internet e-mail and/or facsimile transmission to
(1) Applicant PFS; (2) Intervenors Skull Valley Band, Ohngo Gaudadeh Devia, Confederated Tribes of the Goshute
Reservation, Southern Utah Wilderness Alliance, and the State; and (3) the Staff.
304
Cite as 54 NRC 305 (2001)DD-01-3*
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS
Martin J. Virgilio,Director
In the Matter of Docket No. 70-7001
(Certificate GDP-1)
U.S. ENRICHMENT CORPORATION
(Paducah, Kentucky Gaseous
Diffusion Plant) June 14, 2001
RULES OF PRACTICE: PETITION FOR REVIEW UNDER PART 76
Petitionersunder10 C.F.R. §76.45(d)bear the burdento allege factssufficient
to establish standing.
RULES OF PRACTICE: STANDING
To meet the Commission’s standing requirements, a person must show that
the agency action at issue will cause the person injury in fact, and that the injury
complained of is within the zone of interests protected by the statutes governing
the proceeding.
RULES OF PRACTICE: STANDING
To establish injury in fact, a person must allege a concrete and particularized
injury that is fairly traceable to the challenged agency action. A generalized
grievance shared by a large class of citizens is not an injury in fact sufficient to
support standing.
*DD-01-3 was inadvertently omitted from the June 2001 Issuances.
305
RULES OF PRACTICE: STANDING; ZONE OF INTERESTS
The continued employment of workers at gaseous diffusion plants is not an
economic interest within the zone of interests protected by AEA §193(f).
ATOMIC ENERGY ACT: USEC CERTIFICATE OF COMPLIANCE
The ‘‘reliable and economical’’ concern reflected in AEA §193(f)(2)(B) does
not need to be addressed in routine recertifications or license amendmentsthat do
not involve a change in control.
REGULATIONS: INTERPRETATION OF 10 C.F.R. §76.45(a)
Section 76.45(a) of 10 C.F.R. does not establish the criteria for issuance of
an amendment to a certificate of compliance; rather, its purpose is to inform
the applicant of the degree of detail required for information contained in an
amendment application.
REGULATIONS: INTERPRETATION OF 10 C.F.R. §76.70(b)
Section 76.70 of 10 C.F.R. does not establish a recurring obligation to apply
the ‘‘reliable and economical’’ analysis required by AEA §193(f)(2)(B).
ATOMIC ENERGY ACT: INTERPRETATION
Where a statute despite its superficial clarity contains latent ambiguities, the
Commission has substantial discretion in interpreting its obligations thereunder.
ATOMIC ENERGY ACT: INTERPRETATION OF SECTION
193(f)(2)(B)
The focus of any inquiry under AEA §193(f)(2)(B) as to the viability of
enrichment services operations should be on the control of the corporation by
interests, principally foreign, to the detriment of an ongoing domestic industry.
Thisinquiryneedonlybeconductedat the time ofinitial privatization,a proposed
certification of a new owner, or other transfer of control meeting the threshold of
10 C.F.R. §76.65.
306
RULES OF PRACTICE: PRECEDENTIAL EFFECT OF STAFF
GUIDANCE DOCUMENTS
AlthoughdraftguidancedocumentNUREG-1671,‘‘StandardReview Plan for
the Recertification of the Gaseous Diffusion Plants,’’ suggested that the ‘‘reliable
andeconomical’’findingrequiredbyAEA§193(f)(2)(B)wouldbemadeuponan
application for recertification by a plant with a poor credit rating, Staff guidance
documents, whether draft or final, are not binding upon the Commission.
RULES OF PRACTICE: PRECEDENTIAL EFFECT OF STAFF
GUIDANCE DOCUMENTS
Where a statute is susceptible to more than one permissible interpretation, an
agency is free to choose among those interpretations. Such interpretations are
subject to reevaluation by the Commission on a continuing basis and may be
reformed, even if the later interpretation represents a departure from prior agency
views, as long as the new approach is justified by a reasoned analysis supporting
a permissible construction.
DIRECTOR’S DECISION UNDER 10 C.F.R. §76.45(d)
On March 19, 2001, the Staff issued an amendment to the Paducah Gaseous
Diffusion Plant Certificate (GDP-1) which provided the authority for the U.S.
Enrichment Corporation (USEC) to increase the enrichment capacity of the
Paducah Gaseous Diffusion Plant (GDP).
1
On April 17, 2001, Dan Guttman, counsel to PACE Local 5-689,submitted on
behalfofDanielJ.Minter,PresidentofPACE Local5-689andmembersofPACE
5-689 (PACE or Petitioners) pursuant to 10 C.F.R. §76.45(d) a ‘‘Request for
Director’s Review of Staff Decision Certificate Amendment to U.S. Enrichment
CorporationPaducahGDP’’(Petition). Thepetitionrequestedthattheamendment
issued on March 19, 2001, be reconsidered and that the NRC conduct
(1) the ‘‘reliable and economic’’review asserted to be required by statute, the Commission’s
rules, and the public interest; and
(2) make public the results of that review and seek comment on appropriate conditions that
may be employed to bring USEC into compliance with the [Atomic Energy Act].
2
1 Letter from Eric J. Leeds, Chief, Special Projects Branch, Division of Fuel Cycle Safety and Safeguards, Office
of Nuclear Material Safety and Safeguards, to Morris Brown, Vice President Operations, USEC, entitled Paducah
Gaseous Diffusion Plant Certificate Amendment Request: Higher Assay Upgrade Project (TAC No. L32415).2 Petition at 27.
307
On May 1, 2001, USEC submitted ‘‘United States Enrichment Corporation
Response to Petition for Director’s Review of March 19, 2001, Determination on
Certificate Amendment Request,’’ seeking that the NRC deny the petition.
I. STANDING
Pursuant to 10 C.F.R. §76.45(d), any person whose interest may be affected
may file a petition requesting the Director of the Office of Nuclear Material
Safety and Safeguards (NMSS) to review an NRC Staff determination on an
amendment application. Section 76.45(d) limits eligibility to petition for review
of a Director’s decision to those persons ‘‘whose interest may be affected.’’
The issue of standing in a certificate proceeding was addressed by the
Commission in U.S. Enrichment Corp.(Paducah, Kentucky, and Piketon, Ohio),
CLI-96-12, 44 NRC 231, 236 (1996). In that proceeding, which was pursuant
to 10 C.F.R. §76.62(c),
3 the Commission, recognizing that the petitioners were
appearing pro se and that it was the first instance in which the Commission
had considered petitions under Part 76, accepted the petitioners as ‘‘interested
persons’’ without meeting ‘‘their obligation to explain their ‘interested person’
status.’’Id.However, the Commission cautioned ‘‘that in future Part 76
certification decisions, it will expect Petitioners more specifically to explain their
‘interested person’ status.’’Id.For guidance, the Commission directed that
‘‘Petitioners may look to the Commission’s adjudicatory decisions on standing,’’
referencing Georgia Institute of Technology (Georgia Tech Research Reactor,
Atlanta, Georgia), CLI-95-12, 42 NRC 111, 115-17 (1995). In NRC adjudicatory
proceedings, ‘‘[p]etitioners bear the burden to allege facts sufficient to establish
standing.’’4
To meet the Commission’s standing requirements, a person must show that
‘‘(a) the action will cause ‘injury in fact,’ and (b) the injury is arguably within
the ‘zone of interests’ protected by the statutes governing the proceeding.’’
Metropolitan Edison Co.(Three Mile Island Nuclear Station, Unit 1), CLI-83-25,
18 NRC 327, 332 (1983). The person must allege a concrete and particularized
injury that is fairly traceable to the challenged action.Georgia Tech, CLI-95-12,
42NRC at115. A‘‘‘generalizedgrievance’sharedinsubstantiallyequalmeasure
by all or a large class of citizens will not result in a distinct and palpable harm
sufficient to support standing.’’Three Mile Island, CLI-83-25, 18 NRC at 333;
3 The current proceeding is based on 10 C.F.R. §76.45(d). However, the Commission’s interpretation of section
76.62(c) is directly applicable as its language is identical to section 76.45(d) in that it also limits eligibility for review
of Directors’ decisions to those persons ‘‘whose interest may be affected.’’4 Commonwealth Edison Co.(Zion Nuclear Power Station, Units 1 and 2), CLI-00-5, 51 NRC 90, 98 (2000).
308
North Atlantic Energy Service Corp.(Seabrook Station, Unit 1), CLI-99-27, 50
NRC 251, 263 n.5 (1999); and Warth v. Seldin,422 U.S. 490, 508 (1975).
5
The Petitioners here are represented by experienced counsel and are therefore
expected to understand their obligation to demonstrate that they have an interest
that may be affected by the amendment. The petition, while addressing the
merits of the Petitioners’ concerns, does not make any attempt to explain why the
Petitioners’ interests are affected by the amendment. The Petitioners have clearly
not met the Commission’s explicit expectations. Consequently, I need not further
consider the petition. However, this case raises issues concerning standing that
would benefit from further discussion.
To further address standing, I have made some assumptions concerning the
potential interests of the Petitioners that may be impacted by the amendment.
Presumably, the Petitioners being members of a union at the GDP located in
Piketon, Ohio, do not reside in proximity of the Paducah plant. There appears to
be no association between the Petitioners and the Paducah plant.
Assuming that the Petitioners’ interest is in maintaining a reliable and
economical domestic source of enrichment services, such an interest, while
within the zone of interests of the statute, does not appear to have been affected
in a manner that presents a concrete injury to them. Petitioners are not purchasers
of enrichment services that might have a concrete and particularized injury if
there were not a domestic source of enrichment services. The Petitioners’ interest
in a domestic source of enrichment services is a generalized grievance shared
in substantially equal measure by all or a large class of citizens. A generalized
grievance of broad public concern is not a sufficient interest to confer standing
under the Commission’s adjudicatory decisions.
Another potential interest that might be assumed from the petition is that the
Petitioners, being union members, are interested in protecting their employment
positionsatthe Piketon,Ohio, plant. Thisinterest wouldbe based on the assertion
that there is a direct relation between granting the amendment to upgrade the
Paducah plant and the business decision to close the Piketon plant.
6 The focus
of section 193(f) of the Atomic Energy Act (AEA) of 1954, as amended, with
respect to maintaining an economical and reliable source of enrichment services
is not on maintaining jobs. In fact, the statute recognizes the potential for one
of the GDPs to be closed as a result of privatization.
7 Taking the assertion as
5 For example inWarth,where the plaintiff was challenging exclusionary zoning practices, the Court held that the
plaintiff ‘‘must allege specific, concrete facts demonstrating that the challenged practices harm him and he would
benefit in a tangible way’’ from the proceeding.
6 The Petition, at 26, states that ‘‘there is no dispute that the imminent shutdown of the Portsmouth [Piketon, Ohio]
plant and the proposed upgrade of the Paducah plant go hand-in hand.’’
7 Section 3110(a)(5) of the AEA of 1954, as amended, addresses how employees are to be treated in the event of a
plant closing or mass layoff as a result of privatization.
309
true for purposes of considering standing,
8 maintaining employment in the face
of plant closing is an economic interest that is not within the zone of interests
protected by the AEA.
9 Moreover, apart from the zone-of-interests test, the NRC
has not interpreted the term ‘‘interests’’ to encompass the economic interest of
employees.10
In view of the foregoing, I find that Petitioners have wholly failed to establish
that they have the requisite interest to seek the Director’s review under 10 C.F.R.
§76.45(d) and I deny the petition on that ground. Nonetheless, I believe it would
beusefultoaddress,andclearlyexplaintheDirector’spositionon,thePetitioners’
main arguments.
II. APPLICATION OF SECTION 193(f) OF THE
ATOMIC ENERGY ACT
The thrust of the Petitioners’ argument in seeking that the assay upgrade
amendment be reconsidered is that
(1) NRC is required to consider the ability of USEC to maintain a reliable
and economic domestic source of enrichment services before amending
a certificate,
11 and
(2) Forthisamendment,therearetechnicalandeconomicconcernsthatraise
questions on the ability of USEC to maintain a reliable and economic
domestic source of enrichment services.
12
8 However, it should be noted that the NRC does not have regulatory oversight over the business judgment for
USEC to reduce operations at the Piketon plant. While closing the Piketon plant may be related to the grant of
the amendment for Paducah, it was not compelled by the amendment. There is nothing in the amendment or NRC
requirements that would have prohibited USEC from operating both GDPs following the amendment.
9 The Commission in the past has found the economic interests of a competitor and employees of loss of
employment as outside the statutes governing the NRC.Cf. Quivira Mining Co.(Ambrosia Lake Facility, Grants,
New Mexico), CLI-98-11, 48 NRC 1, 8-17 (1998),aff’d, Envirocare of Utah, Inc. v. NRC,194 F.3d 72 (D.C.
Cir. 1999) (holding that an entity’s competitive interests do not bring it within the zone of interests of either the
AEA or the National Environmental Policy Act (NEPA) for the purpose of policing a competitor’s compliance
with licensing requirements); andSacramento Municipal Utility District (Rancho Seco Nuclear Generating Station),
CLI-92-2, 35 NRC 47, 56 (1992) (holding that the loss of employment does not fall within the zone of interests
protected by NEPA).See also Air Courier Conference of America v. AmericanPostal Workers Union,498 U.S. 517,
528 (1991) (holding that a union’s interest in employment opportunities was not within the zone of interests of the
Private Express Statutes (PES) as PES was intended to serve the nation as a whole and not designed to protect postal
employment). More recent standing guidance of National Credit Union Administrators v. First National Bank &
Trust Co.,522 U.S. 479 (1998) is unavailing since there is nothing in the statute that would suggest that PACE has
an interest protected by the statute. If there is any benefit to PACE from the statute, it is ‘‘merely incidental.’’Id.at
494 n.7.10Envirocare of Utah v. NRC,194 F.3d 72 (D.C. Cir. 1999).11The Petition, at 14-26, argues that section 193(f) of the AEA, 10 C.F.R. §76.22, and the Staff’s view of the
meaning of section 193(f) reflected in SECY-97-071 require consideration of the ability to maintain a reliable and
economic source of enrichment services when certificates are issued and that pursuant to 10 C.F.R. §76.45 a similar
consideration must be made before a certificate may be amended.
12These concerns are described in the Petition at 8-14 and include:
a) the alleged uncertainty that the Paducahupgrade will provide 4.5million separative work units (SWU),
(Continued)
310
By way of background, the NRC customarily focuses on technical issues
related to the maintenance of safety at nuclear facilities. The obligationto expand
NRC’s scrutiny in the case of the GDPs arises from section 193(f) of the AEA.
That section provides that the NRC is to consider whether ‘‘the issuance of a
. . . certificate of compliance would be inimical to . . . (B) the maintenance of
a reliable and economical domestic source of enrichment services’’ (emphasis
added) before the NRC issues certificates. This requirement was readily satisfied
at the time of the initial certification and subsequent recertification of the GDPs.
Last year, after USEC’s corporate credit rating was downgraded following
USEC’s announcement of lower financial projections, dividend reductions, and
plans to lay off employees at the GDPs, the Staff initiated a reexamination of
USEC’s financial status. As a result, the agency focused on the question as to
how or whether the ‘‘maintenance of a reliable and economical domestic source
of enrichment services’’ should be evaluated. As explained below, the Staff’s
position is now that the ‘‘reliable and economical’’ concern reflected in section
193(f)(2)(B) is not a recurring obligation that needs to be addressed at the time
of routine recertifications for a GDP or in connection with other events that do
not involve a change in control, such as the upgrade amendment at issue in this
matter.13 It applies only at the time of initial privatization or any time there is a
proposal to transfer a certificate. In addition, as the Commission has explained
in its letters to its congressional oversight committees, findings concerning the
‘‘reliable and economical’’ issue are ‘‘principally directed to the possibility
of foreign entities gaining control and undermining U.S. domestic enrichment
capabilities,’’14 which would be inimical to the interest of the United States.
While the Petitioners have raised several public policy issues concerning the
capabilityof USEC to providethe necessaryenrichmentservices forUS domestic
needswhile only operatingthe Paducahplant, these issues are more appropriately
raised before the Congress or before executive agencies and departments that
report to the President.
15 NRC has only a limited role in this area.
b) the assertion that, if the upgrade does not work or there is a substantial outage at the Paducah plant,
USEC will not be capable of supplying sufficient enrichment services, and
c) the assertion that, even if the upgrade does work, interruption of the Russian supply of HEU may leave
USEC incapable of producing sufficient enrichment services.
13Pursuant to 10 C.F.R. §76.65, the NRC must approve a transfer of a certificate. That would include a transfer
to a new owner.14See note 42,infra.15Infact,DOEistakingactiontopreservetheoperabilityofcertainoftheequipmentatPortsmouththatUSECdoes
not intend to use for enrichment services. Letters to Chairman, Subcommittee on Energy and Water Development,
House Committee on Appropriations, and Senate Committee on Appropriations, from Michael Telson, DOE Chief
Financial Officer, dated April 4, 2001. In addition, President Clinton on May 26, 1998, established by Executive
Order 13085, the Enrichment Oversight Committee (EOC). 63 Fed. Reg. 29,335 (May 28, 1998). Section 6 of this
Executive Order provides that the EOC shall collect information related to the domestic enrichment industries.
311
In any event, the upgradingof the capacity of the Paducah facility which is the
subject of the amendmentcan only improve the domestic capability by increasing
the enrichment capability at that facility.
A. Statutory Framework
The framework under which the Commission provides oversight of the
enrichment facilities was established by the Energy Policy Act of 1992 and is
set out in section 1701 (‘‘Gaseous Diffusion Facilities’’) of the AEA, Chapter 27
(‘‘Licensing and Regulation of Uranium Enrichment Facilities’’). This provision
was adopted as part of the initial phase of the move toward privatization when
the United States Enrichment Corporation was established and operation of the
facilities was transferred to USEC. Section 1701 directed the Commission to
set standards and also established the timing and process for the Commission to
periodically review and certify USEC’s operations.
TheEnergyPolicyActalsoestablishedtheframeworkforultimateprivatization
of the operation of the gaseous diffusion facilities. The newly established United
States Enrichment Corporation was directed by sections 1501 and 1502 of the
AEA to develop and implement a strategic plan for privatization. Section 1502(a)
authorized the Corporation to implement the plan if the Corporation determined,
in consultation with appropriate agencies of the United States
that privatization will—
(1) result in a return to the United States at least equal to the net present value of the
Corporation;
(2) not result in the Corporation being owned, controlled, or dominated by an alien, a
foreign corporation, or a foreign government;
(3) not be inimical to the health and safety of the public or the common defense and
security; and
(4) provide reasonable assurance that adequate enrichment capacity will remain
available to meet the domestic electric utility industry.
As to section 1701(a), the NRC was directed to establish standards for
the GDPs in order ‘‘to protect the public health and safety from radiological
hazards and provide for the common defense and security.’’ Section 1701(c)
required the Commission to establish a certification process and the Corporation
to apply annually
16 to the NRC for a certificate of compliance. The NRC
was directed to review the operations of the GDPs to ensure that public health
and safety are adequately protected. The NRC’s findings during this review
are limited by section 1701(c)(4)(C). That section states that the NRC ‘‘shall
16Section 3116 of the USECPrivatization Act subsequentlychangedthis to arequirement of periodic certification,
as determined by the Commission, but not less than every 5 years.
312
limit its finding’’ to whether the facilities are in compliance with the standards
established in section 1701(a), that is, whether or not the facilities meet the
health and safety and common defense and security requirements established
by the Commission. Section 1701(b) requires the NRC, in consultation with
DOE and the Environmental Protection Agency (EPA), to report, at least at the
frequency of recertifications, to the Congress on the status of health, safety, and
environmental conditions at the GDPs. The report is to include a determination
regarding whether the facilities are in compliance with the standards established
undersubsection(a)andallapplicablelaws.17 Section1701(d)(‘‘Requirementfor
Operation’’) prohibits the Corporation from operating the GDPs unless the NRC
has made a determinationundersubsection (b), in consultationwith the EPA, that
the standards set out in section 1701(a) and ‘‘all applicable laws’’ have been met.
On April 26, 1996, President Clinton signed into law H.R. 3019 (Pub. L.
No. 104-134), legislation that provided FY 1996 appropriations to a number of
federal agencies. Included within this legislation is a subchapter entitled ‘‘USEC
PrivatizationAct.’’ Section3103ofthisActauthorizedtheCorporationtotransfer
the interest of the United States to the private sector in a manner that (1) provides
forthe long-termviabilityof the Corporation;(2) providesfor the continuationby
the Corporation of the operation of DOE’s gaseous diffusion plants; (3) provides
for the protection of the public interest in maintaining a reliable and economical
domestic source of uraniummining, enrichment,and conversionservices; and (4)
to the extent consistent with such purposes, secures the maximum proceedsto the
United States.
Section 3116of the USEC PrivatizationAct amendedseveralprovisionsof the
AEA including section 193 by adding the following:
(f) LIMITATION.—No license or certificate of compliance may be issued to the United
States Enrichment Corporation or its successor under this section or sections 53, 63, or 1701,
if the Commission determines that—
(1) the Corporation is owned, controlled, or dominated by an alien, a foreign
corporation, or a foreign government; or
(2) the issuance of such a license or certificate of compliance would be inimical to—
(A) the common defense and security of the United States; or
(B) the maintenance of a reliable and economical domestic source of enrichment
services.
The statute required the NRC to make a finding concerning whether the
issuance of a certificate would be inimical to a reliable and economical domestic
sourceofenrichmentservices. TheNRC’s continuingobligationsetoutin section
1701 of the AEA extends only to issues associated with the health, safety, and
common defense and security. There is no implication in the statutory language
17Section 1312 of the Energy Policy Act specified the applicability of certain federal laws to the Corporation.
313
that the NRC’s continuing obligation extends to findings associated with the
question of a reliable and economic domestic source of enrichment services at
times other than upon initial issuance or transfer of a certificate.
B. Legislative History
The evolution of section 193(f) indicates that the intent behind the provision
was to guard against attempts by foreign corporations or governments to acquire
control of the GDPs and subsequently take actions to undermine the U.S.
enrichment capability. There is no indication that there was an intent to consider
the question of a reliable and economical domestic source of enrichment services
at times other than upon initial issuance or transfer of a certificate.
The substance of section 193(f) was initially proposed in a draft bill submitted
by the Administration providing comments on S. 755, a bill to provide for USEC
privatization. The Administration’s comments included the following provision
as a new section entitled, ‘‘Section 1704 Foreign Ownership Limitation,’’ in
Chapter27oftheAEA:
No license or certificate of compliance may be issued to the Corporation under Sections 53,
63, 193, or 1701 if, in the opinion of the Nuclear Regulatory Commission,the issuance of such
a license or certificate of compliance to the Corporation would be inimical to the common
defense and security of the United States due to the nature and extent of the ownership, control
or domination of the corporation by a foreign corporation or a foreign government or any
other relevant factors or circumstances.
18 [Emphasis added.]
The Administration’s bill included the following codification change to the
AEA as section 193(f):
(f) LIMITATION—No license or certificate of compliance may be issued to the United
States Enrichment Corporation or its successor under this section orSections 53, 63, or1701, if
in the opinion of the Commission, the issuance of such a license or certificate of compliance—
(i) would be inimical to the common defense and security of the United States; or
(ii)would be inimical to the maintenance of a reliable and economical domestic
source of enrichment services because of the nature and extent of the ownership, control,
or domination of the Corporation by a foreign corporation or a foreign government or any
other relevant factors or circumstances.
19 [Emphasis added.]
S.755,as reportedbytheSenate CommitteeonEnergyandNaturalResources,
included the Administration’s proposed codification of an amendment to section
18S. Rep. No. 104-173, at 50 (1995) (June 19, 1995, Letter from William H. Timbers, Jr., enclosing draft bill).19Id.at 54.
314
193 of the AEA.
20 The Committee’s report to accompany S. 755 discusses the
provision in a section entitled ‘‘Limitations on Foreign Ownership.’’ It noted that
S. 755, as introduced, contains a provision providing the Nuclear Regulatory Commission
with the authority to deny a license or certificate of compliance if the ‘‘issuance of such
a license or certificate of compliance to the corporation would be inimical to the common
defense and security of the United States due to the nature and extent of the ownership, control
or domination of the Corporation by a foreign corporation or foreign government or any other
relevant factors or circumstances’’ [emphasis added].
The committee substitute, in section 17(a)(2) includes the ‘‘common defense and security’’
requirement while adding that the NRC may also deny a license or certificate of compliance if
doing so would be ‘‘inimical to the maintenance of a reliable and economical domestic source
of enrichment services due to the nature and extent of the ownership, control or domination
of the Corporation by a foreign corporation or a foreign government or any other relevant
factors or circumstances. This provision was added to guard against the possibility of a foreign
uranium enrichment company acquiring the Corporation with the intent of operating it in a
manner inconsistent with its maintenance as an ongoing uranium enrichment concern.’’
21
The report further states that no certificate or license should be issued
if in the opinion of the NRC the issuance of such a license or certificate of compliance would
be inimical to the common defense and security of the United States or would be inimical to
the maintenance of a reliable and economical domestic source of enrichment services because
of the nature and extent of the ownership, control, or domination of the Corporation by a
foreign corporation or a foreign government or any other relevant factors or circumstances.
Id.at 31. [Emphasis added.]
The language contained in S. 755, to provide for a USEC Privatization Act,
was merged into S. 1357, a bill to provide for a Balanced Budget Reconciliation
Act of 1995 which passed the Senate on October 27, 1995.
22 S. 1357 included
the language reported out on S. 755. On the next day, the Senate then inserted S.
1357 into H.R. 2491 which was the House bill for the same budget act.
23
TheHousebillalsocontainedlanguageforasection193(f).Itsversionprovided
language addressing common defense and security and foreign ownership and
control,butnotlanguageaddressinga reliable andeconomicaldomestic sourceof
enrichment.24 The intent of the House bill was to ensure that enrichmentactivities
20Id.at 11.21Id.at 19-20 (emphasis in original).22141 Cong. Rec. S16096 (daily ed. Oct. 27, 1995).23141 Cong. Rec. S16159 (daily ed. Oct. 28, 1995).
24H.R. 2491 as enrolled by the House on October 27, 1995, contained the following language:
If the privatization of the United States Enrichment Corporation results in the corporation being—
(1) owned, controlled, or dominated by a foreign corporation or a Foreign government, or
(2) otherwise inimical to the common defense or security of the United States, any license held by the
Corporation under sections 53 and 63 shall be terminated.
315
would be subject to the same foreign ownership limitations as any other nuclear
production or utilization facility and that the interpretation of section 193(f) be
consistent with interpretations of similar language in sections 103 and 104 of the
AEA.25
Following the conference on the two bills, the Congress enacted the language
that is in the current statute. The Conference report stated that it was adopting
the Senate version with minor changes. While a few provisions were discussed,
there was no discussion relevant to the section 193 provision.
26 Thus, there is no
indication that the language in the conference version of H.R. 2491 — separating
the concept of a reliable and economical domestic source of enrichment from
the common defense and security — was intended to change the intent described
in Senate Report 104-173 which was to guard against the possibility of a
foreignuraniumenrichmentcompanyacquiringthe Corporationwith theintentof
operating it in a manner inconsistent with its maintenance as an ongoing uranium
enrichment concern.
OnDecember6,1995,thePresidentvetoedtheBalancedBudgetReconciliation
Act of 1995 for reasons unrelated to its enrichment provisions.
Thereafter, on January 26, 1996, Mr. Murkowski submitted a substitute
amendment to S. 755. In introducing this legislation, he stated that this bill
‘‘is virtually identical to USEC privatization language contained in the Budget
Reconciliation measure passed earlier by the Senate.’’ As to section 193(f), it
contained the same language that the President had earlier vetoed as part of the
Balanced Budget Reconciliation Act of 1995. Thereafter, the substitute language
of S. 755 was incorporated into the legislation that was enacted into the USEC
Privatization Act as Pub. L. No. 104-134 (Apr. 26, 1996). There was no further
discussion that addressed section 193(f).
In sum, as there were no floor discussions in either the House or Senate
pertaining to section 193(f), the only relevant legislative history is contained in
Senate Report 104-173. Again, that report states that the NRC may also deny a
license or certificate of compliance if issuance of a license or certificate would be
inimical to the maintenance of a reliable and economical domestic source of enrichment
services due tothe nature and extent ofthe ownership, control ordomination ofthe Corporation
byaforeign corporation oraforeign government or anyother relevant factors orcircumstances.
This provision was added to guard against the possibility of a foreign uranium enrichment
company acquiring the Corporation with the intent of operating it in a manner inconsistent
with its maintenance as an ongoing uranium enrichment concern.
25H.R. Rep. No. 104-86, at 20 (1995) on H.R. 1216, a bill to establish the USEC Privatization Act, which was
incorporated into H.R. 2491. The report noted that in establishing a private corporation, one of the purposes of the
corporation was to ‘‘help maintain a reliable and economical domestic source of uranium enrichment services.’’See
H.R. Rep. No. 104-86, at 18.26H.R. Rep. No. 104-350, at 1015 (1995).
316
C. The Issuance of an Amendment to a Certificate Does Not Require
the Findings Under AEA §193(f) To Be Made
In analyzing the Commission’s obligations under section 193(f), the first
question that arises upon reading the various statutory provisions and the limited
legislative history is when must the findings required by section 193(f) be made.
Section 193(f) provides that ‘‘[n]o license or certificate . . .may be issued ...
if the Commission determines that . . .issuance of such a license or certificate . . .
would be inimical to ...themaintenanceofareliableandeconomical domestic
source of enrichment services’’ (emphasis added). The operative language is
a determination whether issuance would be inimical to the maintenance of a
domestic industry. It is clear from the language that it applies to the issuance
of a certificate. There is no indication in the language of the statute or the
legislative history thatsuggeststhe NRC is to makethis findingwhena certificate
is amended. Since the thrust of the legislative history is on foreign ownership
and domination, it is appropriate to read the statute as applying only when a new
entity is issued a certificate to take over the control of a GDP.
Construing the finding to be made in this manner makes sense for initial
certification of a newly privatized owner or at times when control may change,
such as a new entity seeking to purchase the right to operate a GDP. Such an
approach would place the NRC in the role of determining whether the initial
or new applicant would be likely to operate the GDPs in a manner intended to
maintain domestic enrichment services. At these stages, the NRC’s denial of a
certificate would have opened the opportunity for another bidder but would not
have necessarily entailed a suspension of operations. The existing operatorwould
remain responsible until a new certificate holder was approved. At other stages,
such as duringrecertificationor issuance of an amendmentto the certificate, if the
Commission were to determinethatUSEC or a successor is operatingin a manner
that is inimical to ‘‘maintenance of a reliable and economical domestic source of
enrichment services,’’ then surely a denial of a recertification or an amendment
by the Commission could only exacerbate that condition, thereby making it even
more difficult for USEC or the successor to maintain a reliable and economical
domesticsourceofenrichmentservices. Ifthisisin facttheprocesscontemplated,
even absent the awkward construction of section 193(f), the statute would appear
to establish a process that potentially places the Commission at cross purposes
with the apparent intent of the provision. Thus, the Staff views the statute as
requiringthefindingonlyattimeswhentheownershipoftheGDPsmaychange.27
27Petitioners contend that 10 C.F.R.§76.22 provides further support for their position. However, the Commission
in promulgating that regulation was merely incorporating section 193(f) into its regulations. See discussion below
on 10 C.F.R. §76.22.
317
The Petitioner contends that 10 C.F.R. §76.45(a) ‘‘provides that the criteria
to be employed in the initial certificate are to be employed in an amendment.’’
28
The only basis provided for that contention was the language in the regulation.
The Petitioners have misconstrued the regulation. Section 76.45(a) provides in
relevant part:
Theamendment application shouldcontain sufficient information fortheNRCtomakefindings
of compliance or acceptability for the proposed activities in the same manner as was required
for the original certificate. [Emphasis added.]
This provision is procedural and not substantive. Its purpose is to instruct the
applicant that the information presented to support the proposed activity to be
covered by the amendment should be in the same degree of detail that was
submitted in the original application. It does not establish the criteria for the
issuance of the amendment. In any event, its direction is described in permissive,
not mandatory language. The Staff does not interpret 10 C.F.R. §76.45(a) as
providing any indication to the Staff that, at the time of an amendment, all the
findings that were made at the time of initial certification must be remade.
It is recognized that one can read 10 C.F.R. §76.70(b) as establishing a
recurring obligation to apply the direction of section 193(f). Section 76.70(b)
was adopted as part of the initial set of requirements for the GDPs in Part 76
and includes the standard provision included in all NRC licensing or certifying
regulations invoking the general enforcement provision of section 186 of the
AEA that a license may be suspended,amended, or revoked for any condition
that would warrant the Commission refusing to grant the license on an original
application.29 However, the Commission is not obligated to take enforcement
action (such as suspension or revocation of the certificates) as enforcement
decisions are inherently discretionary. To require enforcement action against the
certificate at stages when control is not changing if there are indications that
the certificate holder was not maintaining a reliable and economical domestic
source of enrichment would, as noted above, exacerbate the certificate holder’s
existing condition, thereby making it even more difficult for the certificate holder
to maintain a reliable and economical domestic source of enrichment. Taking
enforcement action in such a case could amount to an abuse of discretion.
30 The
28Petition at 19.
29The statutory provision and regulatory implementation of it codify a discretionary enforcement power available
to the Commission. Its availability does not mandate that the Commission initiate any particular enforcement action
or any particular review preliminary to possible enforcement action.
30ThePetitionerscontend(Petitionat25)thatiftheNRCconcludesthattheissue‘‘cannot becuredbyCommission
action,’’ it should at least notify the Congress, other Executive Branch agencies, and the public. However, section
193(f) is not a notification provision. It provides only for the denial of a certificate without which a GDP cannot
operate.
318
Staff does not read 10 C.F.R. §76.70 as establishing a recurring obligation to
apply the direction of section 193(f).
Moreover, as noted above, the AEA establishes in section 1701(c)(4) a
requirement for the Commission to make periodic findings concerning the status
of the operation of the GDPs. Congress was clearly aware of this section of
the AEA as it amended it as part of the USEC Privatization Act.
31 The section
specifically sets out what the NRC is to review. The focus is only on health,
safety, and the common defense and security. It is noteworthy that the NRC was
notchargedwitha recurringobligationtoconsiderwhetherUSECwascontinuing
to maintain a reliable and economical source of domestic enrichment services.
The absence of such a provision as part of the NRC’s recurring obligation
is persuasive evidence that the NRC was not expected to have a continuous
obligation to consider the vitality of the domestic enrichment industry.
32
Finally,asnotedinthestatutoryframeworkdiscussionabove,languagesimilar
to that found in section 193 was also included in two provisions in the Energy
PolicyActandinthePrivatizationActprescribingfindingsthathadto bemadeby
USEC and other departments of the Executive Branch before they could proceed
to implement privatization. Providing for an independent review or finding by
the Commission in conjunction with other Executive Branch action has parallels
elsewhere in the AEA.
33 Accordingly, construing section 193(f) in tandem with
the substantially similar finding required of USEC under section 1502 at initial
privatization, supports the view that the NRC’s obligation is not recurring.
Therefore, the Staff does not interpret section 193(f) of the AEA, or the
Commission’s regulations, as requiring the findings under section 193(f) to be
made prior to issuance of an amendment to a certificate.
D. The Finding Under Section 193(f)(2)(B) Is Principally Directed to the
Possibility of Foreign Entities Gaining Control and Undermining U.S.
Domestic Enrichment Capabilities in the Privatized USEC
Even though the Staff did not conduct a ‘‘reliable and economical’’ review
for this amendment (nor do I believe such a review was required for a certificate
amendment), the Commission has, as noted above, indicated that it believes that
anysuchreviewis principallydirectedtothe possibilityofforeignentities gaining
31The frequency of recertification in section 1701(b)(2) was amended by section 3116(b)(3) of Pub. L. No.
104-134.
32Importantly, the Congress did not give the Commission the authority to require USEC or its successors to
continue to operate the GDPs to provide for a domestic enrichment source. This is in contrast to section 108 of the
Atomic Energy Act which states that the Commission, if Congress declares a state of war or national emergency,
has the authority to require production and utilization facilities to continue to operate if necessary for the common
defense and security.33See AEA §§123-129.
319
control and undermining U.S. domestic enrichment capabilities in the privatized
USEC. While unnecessaryto my decision, the following observationssupportthe
Commission’s position.
It is clear from the legislative history discussed above that the Administration
and the drafters of this legislation were concerned about the potential for foreign
ownership of the GDPs. Senate Report 104-173, quoted above, on S. 755, the
bill that was adopted in the final legislation, clearly explains that the purpose
of section 193(f) was ‘‘to guard against the possibility of a foreign uranium
enrichment company acquiring the Corporation with the intent of operating it in
a manner inconsistent with its maintenance as an ongoing uranium enrichment
concern.’’
It is true that in the final language of section 193(f), the concept of foreign
control was separated from the provision on maintaining a domestic source of
enrichmentservices. However,assetoutaboveinthediscussiononthelegislative
history, there is no indication that the changed language was intended to serve
a different purpose and provide separate independent tests. This one-sentence
provision was part of a bill that was almost 400 pages. The Conference report,
in explaining the departure from the Senate-passed language which came from S.
755, stated that minor changes had been made and then it proceeded to discuss
the specific changes.
34 There was no discussion that addressed section 193(f).
This is surprising in light of the final language that, if read literally, would have
the NRC delving into matters of economic viability. This is an area where the
NRC has virtually no experience since it is unrelated to its traditional role under
the Atomic Energy Act as a regulator of radiological health and safety, and the
common defense and security. One can only conclude that the drafter of the final
version did not intend to change the purpose of the language. Thus, it would be
reasonable to read the statute as providing three related tests: (1) Is the certificate
holder to be owned, controlled, or dominated by a foreign entity; and (2) if the
certificate holder is not to be owned, controlled, or dominated by a foreign entity,
is the certificate holder likely to be subject to influence by an entity, principally a
foreign entity, that would be inimical to (a) the common defense and security or
(b) maintaining a domestic enrichment capability?
Turning to the specific language of section 193(f)(2)(B), the terms used are
open to various interpretations. The common usage of the terms as reflected in
Webster’s New Collegiate Dictionary (1977) defines ‘‘reliable’’ as ‘‘suitable or
fit to be relied on: dependable . . . giving the same result on successive trials’’;
‘‘economical’’ as ‘‘marked by careful efficient, and prudent use of resources:
thrifty:operatingwithlittlewasteoratasavings’’;and‘‘inimical’’ashaving‘‘the
34H.R. Rep. No. 104-350, at 1015 (1995).
320
disposition of an enemy: hostile . . . reflecting or indicating hostility: unfriendly
. . . being adverse usually by reason or indicating hostility or malevolence.’’
The Petitioners believe that these terms mean that USEC must be able to pro-
duce ‘‘8 million SWU to fulfill its role as a reliable source of domestic supply.’’
35
However,aliteralreadingofsection193(f)leadstotheresultthattheCommission
must find upon issuance of a certificate that the certificate holder will maintain a
reliable and economical domestic source of enrichment services. Such a reading
could suggest that as long as the certificate holder can provide some enrichment
services, even a very limited amount, in an economical and reliable manner, the
certificated holder is maintaining a reliable and economical source of enrichment
service. Such an interpretation, while true to the plain meaning of the words, may
not be rational.
36 While there is no express or implied legislative intent to reach
such a result, neither is there an intent expressed to define reliable as capable of
supplying 100% of the enrichment services required by domestic power plants.
On the other hand, the GDPs have operated in a dependable manner over many
years.
Similarly, the term ‘‘economical’’ is open to a wide variety of possible
interpretations. These various interpretationsmight require the NRC to determine
whether the certificate holder has a positive cash flow, can produce SWU below
selling cost in order to sell services at a profit, can compete on the world market,
or can sell services at an affordable price, even if it is above the world market
price, to meet the statute. It is also noted that the AEA uses the term ‘‘inimical’’
in the context of common defense and security. It is uncommon to relate it to
financial or economic issues as suggested literally by the statute.
Thus, the NRC is faced with implementing a statute that despite its superficial
clarity contains latent ambiguities.
37 Given the lack of definition in the law and
the ambiguity of the language, the Commission has substantial discretion in
interpreting its obligations.
38
35Petition at 8.
36‘‘[I]f a literal construction of the words of a statute would lead to an absurd, unjust, or unintended result, the
statute must be construed so as to avoid that result.’’United States v. Mendoza,565 F.2d 1285, 1288 (5th Cir. 1978)
(citing Church of the Holy Trinity v. United States,143 U.S. 457, 461, 12 S. Ct. 511, 512 (1892)).See also Perry
v. Commerce Loan Co.,383 U.S. 392, 400, 86 S. Ct. 852, 857 (1966);Hughey v. JMS Development Corp.,78 F.3d
1523, 1529 (11th Cir. 1996); Sutherland Statutory Construction (5th ed.) §46.07 (1992 Supp.). ‘‘[E]ven when the
plain meaning did not produce absurd results but merely an unreasonable one plainly at variance with the policy of
the legislation as a whole, this Court has followed [the purpose of the act] rather than the literal words.’’United
States v. American Trucking Associations, Inc.,310 U.S. 534, 542-44, 84 L. Ed. 1345, 60 S. Ct. 1059 (1940).37It is appropriate to turn to a statute’s legislative history for guidance when a statute contains latent ambiguities
despite its superficial clarity.West v. Kerr-McGee Corp.,765 F.2d 526, 530 (5th Cir. 1985).
38The Supreme Court has long held that great deference is due the interpretation of a statute by the officers or
agency charged with its administration.FDA v. Brown& Williams Tobacco Corp.,529 U.S. 120, 133 (2000);Smiley
v. Citibank,116 S. Ct. 1730, 1733 (1996);ChevronU.S.A.v. Natural ResourcesDefenseCouncil, Inc.,467 U.S.837,
842-43 (1984). The Commission, of course, is responsible for all of the licensing and related regulatory functions set
forth in the AEA.See generally Energy Reorganization Act of 1974, §201, 42 U.S.C. §5841. Its interpretation of
(Continued)
321
From its review of the structure of the AEA as a whole and the
legislative history, the NRC has concluded that the focus of any inquiry under
section193(f)(2)(B)astotheviabilityoftheenrichmentservicesoperationsshould
be on the possibility of controlof the corporationby interests, principallyforeign,
to the detriment of an ongoing domestic industry.
39 This is consistent with the
view held by the Senate Committee on Energy and Natural Resources, which
introduced the section, entitled ‘‘Limitations on Foreign Ownership,’’ of S. 755
that became section 193(f) as expressed in Senate Report 104-173.
The Commission relied on the view of this Committee when it promulgated
changes to Part 76 to reflect the Privatization Act. In 1997, the Commission
adopted the statutory language of section 193(f) without change in 10 C.F.R.
§76.22. In the Statement of Considerations for this rule, the Commission
noted that it had not been directed in the past ‘‘in its regulatory decisions to
evaluate whether a proposed action is inimical to the viability of the domestic
industries subject to the NRC regulation.’’
40 The Commission went on to say that
‘‘informationaboutthe intent ofthe language is containedin a Senate Committee
Report on an earlier version of the legislation (S. Rep. No. 104-173 on S. 755,
November 17, 1995)’’ (emphasis added). It then quoted the provisions of the
report which have been set out above.
The guidance provided in the Statement of Considerations for evaluating
this issue focused on (1) information under 10 C.F.R. §76.33(a)(2) related to
foreigncontrolandownership,and(2)informationobtainedto meetrequirements
for access to and protection of classified information.
41 The Commission noted
its authority to require a certificate holder or applicant to provide additional
information concerning the issuance of a certificate and that the Staff was
considering the need to submit further information addressing whether issuance
would be inimical to the maintenance of a reliable and economical source of
enrichment services. It is clear that the Commission took the view at the time of
thepromulgationoftheregulationthatsection193(f)andtheassociatedregulation
at10C.F.R.§76.22focusedonthepotentialforaforeignconcernnotmaintaining
a domestic enrichment capability.
the AEA, therefore, is entitled to great weight. The AEA affords the Commission uniquely ‘‘broad responsibility’’
in determining how the statutory objectives will be achieved.Siegel v. Atomic Energy Commission,400 F.2d 778,
783 (D.C. Cir. 1968).
39TheCommissionhasfollowed asimilar contextual analysisapproach withthe other foreign ownershipprovision
of the Atomic Energy Act, §104(d). As noted in the ‘‘Final Standard Review Plan on Foreign Ownership, Control
and Domination,’’ ‘‘the Commission has stated that in context with the other provisions of Section 104d, the foreign
control limitation should be given an orientation toward safeguarding the national defense and security. Thus an
applicant that may pose a risk to national security by reason of even limited foreign ownership would be ineligible
for a license.’’ 64 Fed. Reg. 52,355, 52,358 (Sept. 28, 1999) (§3.2 ‘‘Guidance on Applying Basic Limitations’’).
40Final Rule on USEC Privatization Act: Certification and Licensing of Uranium Enrichment Facilities, 62 Fed.
Reg. 6664, 6665 (Feb. 12, 1997).41Id.
322
E. The NRC Is Not Bound by the Position in Draft NUREG-1671,
‘‘Standard Review Plan for the Recertification of the Gaseous
Diffusion Plants’’
Following the promulgation of the final rule implementing section 193(f), the
Staff consideredthe need for additionalinformation,preparedSECY-97-071,and
published a draft guidance document for comment, NUREG-1671, ‘‘Standard
Review Plan for the Recertification of the Gaseous Diffusion Plants’’ (SRP)
which, among other things, provided information on the way in which the NRC
Staff would make determinations regarding the ‘‘foreign ownership, control
or domination’’ criterion as well as the ‘‘reliable and economical’’ finding if
needed. The draft SRP stated that the financial vitality of the applicant will be
reviewed and if the actual or estimated credit rating is below investment grade,
the reviewer should consider whether any other economic, financial, or business
characteristics provide reasonable assurance of the applicant’s viability over at
least5years. Itisimportantto emphasizethatbyits termsthedraftSRP addressed
only recertification and it has not in practice been applied to amendments of
certificates.
The recertification of USEC in 1999 included a review against the provisions
of the draft SRP. At that time, based on USEC’s favorable credit rating the
NRC was not confronted with an unfavorable credit rating and, therefore, did not
need to closely examine the statute or focus on whether there was a requirement
to perform a detailed financial vitality review including economic, financial, or
business characteristics.
However, a subsequent significant change in USEC’s credit rating prompted
the NRC to review USEC’s financial status and to closely examine whether
and when there is a need for a ‘‘reliable and economical’’ review under section
193(f) of the AEA. That examination led to the Commission’s conclusion that
the ‘‘reliable and economical’’ finding is not a recurring obligation, but is only
pertinent at the time of the initial privatization or whenever there is a transfer of a
certificate.42 The Commission also concluded that the scope of any examination
under the ‘‘reliable and economical’’ review is limited principally to the issue of
foreign control.
Admittedly, the Commission’s conclusion differs from the Staff position
provided in the draft SRP where the Staff proposed to do a financial vitality
review as part of the ‘‘reliable and economical’’ review at every recertification.
However, as the Commission recently explained in Kansas Gas and Electric Co.
42The Commission on the public record informed its congressional oversight committees of this position in letters
dated September 11, 2000. In addition, it informed the Petitioners of its view in a letter dated January 10, 2001,
from Eric J. Leeds, Chief, Special Projects Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear
Material Safety and Safeguards. The issue was also raised during the March 27, 2001, hearing before the U.S. House
of Representatives, Commerce Committee.
323
(Wolf Creek Generating Station, Unit 1), CLI-99-19, 49 NRC 441 (1999), an
agency can change an agency position.
43 It is well established in administrative
law that, when a statute is susceptible to more than one permissible interpretation,
an agency is free to choose among those interpretations.
44 This is so even when a
recent interpretation may be viewed as a departure from prior agency views.
45 As
the Supreme Court explained in Chevron,agency interpretations and policies are
not ‘‘carved in stone’’ but rather must be subject to reevaluation of their wisdom
on a continuing basis.
46 The Commission should have even greater flexibility in
this case where the position being changed is one reflected in an initial draft SRP
that has yet to be finalized. Of course, an SRP, whether draft or final, is not
binding on the Commission.
47 Thus, the Staff concludes that NRC can change
its interpretation of section 193(f) so long as it justifies its new approach with a
‘‘reasoned analysis’’ supporting a permissible construction.
48
As noted earlier, the Commission has examined the matter of its obligation
to make findings concerning a reliable and economical domestic source of
enrichment services. That examination was based on a detailed analysis of the
legislative history and resulted in the position that was articulated in letters to the
Commission’s congressional oversight committees.
49
Basedontheabove,theStaffconcludesthatinmakingdeterminationsrequired
bysection 193(f)(2)(B),it shouldfocuson the issue ofentities, principallyforeign
entities, gaining control and undermining U.S. domestic enrichment capabilities,
which would be inimical to the interest of the United States, and that this review
need only be conducted at the time of a proposed certification of a new owner
or other transfer of control meeting the threshold of 10 C.F.R. §76.65. Such a
review is not required and is not appropriate for an enrichment assay upgrade
amendment to the Paducah certificate.
43The Petitioners recognize that an agency can change its position but noted that the Commission inWolf Creek
sought more public input before making its decision. In the instant case, the NRC has made no secret of its position.
While NRC did not seek public comment on its position, there was opportunity for the public to provide their views
to the NRC. The Petitioners were aware of the NRC position.44Chevron U.S.A. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 842-43 (1984).45Id.at 862;Wolf Creek,CLI-99-19, 49 NRC at 460.46Chevron,467 U.S. at 863-64;FDA v. Brown and Williams Tobacco Co.,529 U.S. 120, 157 (2000).47SRPs are Staff documents not issued by the Commission. They are not interpretations of the Commission
requirements binding on the Commission pursuant to 10 C.F.R. §76.6. SRPs like Regulatory Guides provide
guidance on how requirements might be met but they are not substitutes for the requirements. The Commission
has held that NUREGs and Regulatory Guides ‘‘are advisory in nature and do not in themselves impose legal
requirements on either the Commission or its licensees.’’Curators of the University of Missouri,CLI-95-8, 41
NRC 386, 397 (1995). Guidance issued by the Staff is subject to question and the Staff may have to demonstrate
the validity of its guidance if challenged in an adjudication.Metropolitan Edison Co.(Three Mile Island Nuclear
Station, Unit 1), ALAB-698, 16 NRC 1290, 1299 (1982) (rev’d in part on other grounds,CLI-83-22, 18 NRC 299
(1983)).48Rust v. Sullivan,500 U.S. 173, 186-87 (1991);Public Lands Council v. Babbit,167 F.3d 1287, 1302 (10th Cir.
1998).See also Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade,412 U.S. 800, 808 (1973);
Hatch v. FERC,654 F.2d 825, 834 (D.C. Cir. 1981);Greater Boston Television Corp. v. FCC,444 F.2d 841, 852
(D.C. Cir. 1971).49See note 42,supra.
324
III. CONCLUSION
For the reasonsgivenabove, the petition is denied. In denyingthis petition,the
Staff does not intend to imply that the Petitioners have not raised public policy
issues concerning the capabilities of USEC to provide domestic enrichment
services. The NRC is not the agency to address these issues. Rather, these
issues are appropriately addressed by the Congress and other Executive Branch
agencies.
Pursuant to 10 C.F.R. §76.45(e), a petition requesting review by the
Commission of this Director’s Decision must be filed within 30 days of the
date of this Decision.
FOR THE NUCLEAR REGULATORY
COMMISSION
Martin J. Virgilio, Director
Office of Nuclear Material Safety
and Safeguards
Dated at Rockville, Maryland,
June 14, 2001.
325
Cite as 54 NRC 326 (2001)DD-01-4
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
OFFICE OF NUCLEAR REACTOR REGULATION
Samuel J. Collins,Director
In the Matter of Docket No. 50-247
(License No. DPR-26)
ENTERGY NUCLEAR OPERATIONS, INC.
and ENTERGY NUCLEAR INDIAN
POINT 2 LLC
(Indian Point, Unit 2) November 21, 2001
The Petitioners requested the following: (1) NRC suspend the license for
the Indian Point Unit 2 (IP2) facility due to persistent and pervasive negligent
managementbytheLicensee,ConEd,whichhasendangeredthepublichealthand
safety and the environment due to significant safety problems existent at the site
for decades; (2) specifically, that NRC investigate the apparent misrepresentation
of material fact by the utility to determine whether the significantly insufficient
engineering calculations relied on to ensure adequacy of design of key systems,
including the steam generator (SG) analysis and the electric bus analysis at
the IP2 reactor, were due to a lack of rigor and thoroughness or a result of
deliberately misleading information; (3) should the investigation determine that
ConEd deliberately provided insufficient and false information, the Petitioners
specifically request that ConEd’s operating license be revoked for its IP2 reactor;
(4) should NRC not revoke the license, and the IP2 reactor returns to operation,
the Petitioners specifically request that it remain on the list of agency focus
reactors to oversee the operation of the reactor until such time as its management
demonstrates that it can fulfill its regulatory requirements and commitments;
(5) no license transfer requests should be approved for IP2 until such time that
its management can demonstrate that the Updated Final Safety Analysis Report
(UFSAR) backlog and the maintenance requirements are up to date and workers
have been retrained to the complete and revised UFSAR; (6) NRC should keep
IP2 off-line until the fundamental breakdown in management is analyzed and
corrected.
326
The final Director’s Decision on this petition was issued on November 21,
2001. In that decision, the NRC Staff concluded that the informationcontained in
the petition and the supplement did not warrant NRC Staff action to suspend or
revoke the operatinglicense for IP2. Likewise, the Staff did not find any basis for
initiatingan investigationinto wrongdoing onthe part of ConEd. For these issues,
the Petitioners’ requested actions were not granted. However, the NRC grantedin
part the Petitioners’ requestthat IP2 remain onthe list of agencyfocus plants (i.e.,
plants with multiple/repetitive degraded cornerstones). The NRC Staff did not
grantthe Petitioners’request to define underwhat conditionsIP2 will be removed
from the list of plants with multiple/repetitivedegradedcornerstones. In addition,
the Staff found that the Petitioners’ request to delay or deny a request to transfer
the operating license for IP2 until the Licensee’s management can demonstrate
that the UFSAR, CR backlog, and maintenance requirements are up to date and
that plant workers have been retrained to the modified UFSAR did not meet the
requirements for review under 10 C.F.R. §2.206.
DIRECTOR’S DECISION UNDER 10 C.F.R. §2.206
I. INTRODUCTION
On December 4, 2000, Citizens Awareness Network (CAN), Public Citizen,
Westchester Peoples Action Coalition, Nuclear Information and Resource
Service, and Environmental Advocates (Petitioners) filed a petition pursuant
to section 2.206 of Title 10 of the Code of Federal Regulations (10 C.F.R.
§2.206). The Petitioners requested that the U.S. Nuclear Regulatory Commission
(Commission or NRC) take the following actions with regard to Indian Point
Nuclear Generating Unit No. 2 (IP2), previously owned and operated by the
Consolidated Edison Company of New York, Inc. (ConEd or the Licensee): (1)
suspend the license for the IP2 reactor based on the Licensee’s ‘‘persistent and
pervasive, negligent management of the reactor’’; (2) investigate whether the
potential misrepresentationof material fact by the utility regarding ‘‘significantly
insufficient’’engineeringcalculationswasduetoa lackofrigorandthoroughness
or was deliberate; (3) revoke the IP2 operating license if it is found that the
Licensee deliberately provided insufficient and false information; (4) if the
license is not revoked, then maintain IP2 on the list of ‘‘agency focus’’ plants
until IP2 management demonstrates it can fulfill its regulatory requirements and
commitments; (5) not approve the transfer of the IP2 license until management
can demonstrate that the Updated Final Safety Analysis Report (UFSAR), the
condition report (CR) backlog, and the maintenance requirements are up to date
and workers have been retrained; and (6)not allow the IP2 reactor to restart until
327
the fundamental breakdown in management is analyzed and corrected. The bases
for the requested actions are discussed later in this section.
In a transcribed public meeting between the Petitioners and the Office of
Nuclear Reactor Regulation’s (NRR’s) Petition Review Board on January 24,
2001, the Petitioners clarified issues in the petition. The transcript of this meeting
was treated as a supplement to the petition and is available for inspection at
the Commission’s Public Document Room, at One White Flint North, 11555
Rockville Pike (first floor), Rockville Maryland, and electronically accessible in
the AgencywideDocumentsAccess andManagementSystem (ADAMS) through
theNRCPublicElectronicReadingRoomat http://www.nrc.gov/reading-rm.html
(ADAMS Accession No. ML010450222).If you do not have access to ADAMS,
or if you have problemsin accessing the documentsin ADAMS, contact the NRC
Public Document Room (PDR) reference Staff at 1-800-397-4209 or 301-415-
4737 or by e-mail to [e-mail].
Duringthepublicmeeting,thePetitionersgavetheNRC Staffthreedocuments
toconsiderindecidingwhethertoreviewthepetitionunder10C.F.R.§2.206. The
documentsconsisted of (1) several hundredreportson the conditionof the reactor
and the associated facility from the IP2 condition report system; (2) a January 19,
2001, evaluation of the condition reports by the Union of Concerned Scientists
(UCS); and (3) a January 10, 2001, redacted version of the document ‘‘Citizens
Awareness Network, Inc.’s Revised Contentionon Financial Qualifications in the
License Transfers for James A. FitzPatrick and Indian Point 3 Nuclear Power
Stations per Commission Memorandum & Order, November 27, 2000.’’ The
Petitioners provided the documents to supplement the bases for the requested
actions in the petition. The documentscontainedno new requests for NRC action.
On September 6, 2001, the operating license for IP2 was transferred from ConEd
to Entergy Nuclear IP2 and Entergy Nuclear Operations, Inc. (Entergy). By letter
dated September 20, 2001, Entergyrequested that the NRC continue to review all
requests pending with the NRC when ConEd requested the license transfer.
As a basis for the requested actions, the Petitioners stated that ConEd’s
systemic mismanagement of the plant had resulted in, among other things,
inconsistenciesandinaccuraciesintheUFSAR, safetysystemswhosecompliance
with the regulationscould not be verified, design-basisanalyses that might not be
accurate, and an UFSAR that might not be up to date. The Petitioners referenced
numerousNRCinspectionreports,licenseeeventreports,lettersbetweentheNRC
Staff and ConEd, plant performance review summaries, and other documents.
In addition, the Petitioners contended that the CRs turned over to the NRC
Staff during the January 24, 2001, public meeting provided further evidence of
ConEd’s mismanagement of the IP2 facility, evidence that may not have been
previously considered by the NRC Staff. The Petitioners stated that ConEd’s
mismanagement of the plant has compromised the health and safety of the
workers and the public, potentially exposing them to radiation levels higher than
328
warranted. The Petitioners also stated that ConEd’s mismanagement had allowed
ConEd to operate the plant out of compliance with the technical specifications.
The Petitioners also contended that IP2 senior management deliberately chose
to continue operating the plant with deteriorating steam generators, in spite of
communications and technical guidance from the NRC. The Petitioners stated
that a license amendment to defer a June 1999 steam generator tube inspection
to June 2000 resulted in the February 2000 steam generator tube failure event.
The Petitioners further stated that the NRC’s decision to approve the license
amendment was based on data provided by ConEd which was later deemed
inaccurate.
The Petitioners also requested that no license transfer be approved until
the management of IP2 can demonstrate that the UFSAR, CR backlog, and
maintenance requirements are up to date, and that the plant workers have been
retrained to the modified UFSAR. The Petitioners clarified the bases of their
request during the January 24, 2001, public meeting. The Petitioners stated that
the plant was ‘‘too far out of its licensing bases and design bases at this point
and the licensing documentation . . . too inaccurate to justify a transfer at this
point.’’ In addition, the Petitioners stated: ‘‘On the basis of the violations that
have occurred and the way that Con Edison has been runningthe reactor, . . . Con
Edison has not earned the privilege to be able to transfer its liability to another
operator.’’ The Petitioners also questioned the adequacy of the license transfer
process to evaluate nuclear power plants with a history of poor performance.
Finally, the Petitioners questioned Entergy’s financial qualifications to handle a
plantas troubledasIP2in light ofthe manyacquisitionsthe companyhasrecently
made. As further basis for their concerns, during the January 24, 2001, public
meeting, the Petitioners submitted the document entitled ‘‘Citizens Awareness
Network, Inc.’s Revised Contention on Financial Qualifications in the License
Transfers for James A. FitzPatrick and Indian Point 3 Nuclear Power Stations
per Commission Memorandum & Order, November 27, 2000.’’ The document
discussesCAN’sfinancialconcernsregardingEntergy’seffortstopurchaseJames
A. FitzPatrick and Indian Point 3. The Petitioners contended that their concerns
about the financial qualificationsof Entergy in this proceeding were also relevant
to the transfer of the IP2 license to Entergy.
By letter dated May 3, 2001, the NRC Staff requested that ConEd provide
a voluntary response to the issues identified in the petition. On May 17, 2001,
ConEd provided a response to the issues identified in the petition (ADAMS
Accession No. ML011420230).
The NRC Staff sent a proposed version of the Director’s Decision to the
Petitioners and ConEd by letter dated July 25, 2001, with an invitation to
comment on the completeness and accuracy of the decision. The Petitioners’
reply and the NRC Staff’s response to the Petitioners’ reply are included as
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Attachments 1 and 2 (not published), respectively. ConEd did not comment on
the proposed Director’s Decision.
II. DISCUSSION
The Staff reviewed the information in the petition and the supplemental
documents submitted during the January 24, 2001, public meeting. The NRC
Staff identified the following issues to be addressed in this Director’s Decision:
(1) Does the performance of the operators of IP2 warrant enforcement action
to prevent the plant restart or suspend the operating license? If not, should IP2
remainonthelist ofplantsreceivingenhancedNRC oversight? (2)Istherea basis
to initiate an investigation of ConEd regarding the August 1999 and February
2000 events at IP2? (3) Based on the performance problems discussed in the
petition, should ConEd be allowed to transfer the IP2 license to another owner?
Issue 1
Does the performance of the operators of IP2 warrant enforcement action to
prevent plant restart or suspend the operating license? If not, should IP2 remain
on the list of plants receiving enhanced NRC oversight?
The Petitioners contend that management of the IP2 reactor facility has
degraded to the point where public health and safety are not assured and the
environment is not protected. As evidence for their claim, the Petitioners
provided numerous examples of plant performance problems documented in
NRC inspection reports and plant performance reviews for IP2, licensee event
reports submitted by ConEd to the NRC under 10 C.F.R. §50.73, and other
similar documents. These examples include errors in design and licensing basis
documentation, errors in translating the design of the plant into hardware and
procedures, degraded plant conditions, deficiencies in emergency preparedness,
and what the Petitioners believe is a general disregard of NRC technical and
administrative communications. The Petitioners requested that the NRC keep the
IP2 reactor off line until the fundamental breakdownin management described in
the December 4, 2000, Petition is analyzed and corrected.
As further evidence of management problems at IP2, the Petitioners gave the
NRCrecentIP2CRsandUCS’sevaluationofthoseCRs. TheUCS CRevaluation
highlights a variety of out-of-normalconditions, including deficiencies in the IP2
problem identification and resolution process and deficiencies in the material
condition of the plant. The Petitioners specifically requested that if the plant
is allowed to operate, IP2 remain on the list of ‘‘agency focus’’ plants until
management for IP2 demonstrates it can fulfill its regulatory requirements and
commitments.
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NRC Response
In a conference call prior to the December 2000 restart of IP2, the NRC Staff
informed Deborah Katz of CAN, the contact person for this petition, that the
Petitioners’ request to prohibit the restart of the IP2 reactor until the fundamental
breakdown in management is analyzed and corrected (Request Action 6) was not
granted. The Director of NRR did not grant the requested action because the
findings and issues that provided the basis for the requested action had all been
evaluated previously during NRC’s inspections and assessments of IP2. At the
time of the Petitioners’ request, the findings from the NRC’s assessment of IP2
did not warrant prohibiting the restart of IP2. The Staff informed Ms. Katz of the
decision not to prevent the restart of the IP2 reactor in a letter dated March 9,
2001.
The NRC has been concernedfor some time about performanceweaknesses at
IP2. The Petitioners’ concernsaboutIP2 are, for the most part, the same concerns
theNRCStaffhasbeendocumentingforsometime. Althoughperformanceissues
continue to pose challenges for this facility, recent NRC Staff assessments of
Licensee performance indicate that IP2 is being operated safely.
In recent years, the NRC has maintained a very strong regulatory presence
at IP2, as reflected by numerous inspection and assessment reports resulting in
significant civil penalties. For example, inspections conducted in 1996 and 1997
broughtto light a variety of performanceissues, many identical to those raised by
the Petitioners. The last Systematic Assessment of Licensee Performance report
(issued in March of 1997) captured these issues and conveyed NRC’s concerns
to ConEd throughsignificantly lowered performanceratings. In response to these
concerns, NRC inspections by resident and region-based inspectors increased
significantly. Performance problems continued. An independent, in-depth safety
assessment was conducted at the plant in early 1998 in accordance with a
confirmatory action letter. An NRC team oversaw this independent effort. In all,
more than $500,000 in civil penalties were assessed by the NRC in connection
with inspection findings at IP2 from 1997 to 2000. Over the period 1999–2001,
the number of inspection hours logged by the NRC at IP2 was more than double
the average at single-unit sites. In the last 16 months, NRC senior managers
participated in fifteen management meetings with ConEd, ten in the vicinity
of IP2, and five at either the NRC regional office or at NRC Headquarters in
Rockville, Maryland. The number of meetings with NRC senior managers was
significantly higher than the number for an average single-unit site.
During this period, Region I raised specific concerns with safety equipment,
human performance, engineering and technical support, control of design
activities, emergencypreparednessand correctiveaction programs,the same kind
of issues identified in the petition. In response, ConEd developed improvement
programs. ConEd’s performanceimprovementefforts yielded some progress, but
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two recent events, the August 1999 reactor shutdown with complications and the
steam generator tube failure in February 2000, indicated that these efforts had
not effectively remedied the underlying problems. Consequently, senior NRC
managers determined in May 2000 that weaknesses in numerous areas warranted
designating IP2 as an ‘‘agency focus’’ plant. Subsequently, in accordance with
theplantassessmentguidanceestablishedaspartoftheReactorOversightProcess
(ROP), IP2 was designated as a plant with ‘‘multiple degraded cornerstones,’’
requiring heightened oversight and inspection. A detailed description of the ROP
is given in NUREG-1649, Revision 3, ‘‘Reactor Oversight Process,’’ which is
available for inspection at the Commission’s Public Document Room, at One
White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, and
electronically accessible in ADAMS through the NRC Public Electronic Reading
Room at http://www.nrc.gov/reading-rm.html.
Following the guidance in the ROP, NRC provided enhanced inspection and
oversight at IP2 over the past year. To augment the baseline inspections, regional
and Headquarters personnel have performed special reviews and inspections.
Prior to the restart of the IP2 reactor on December 30, 2000, the NRC Staff
employed a disciplined, internal process for screening and addressing issues that
could impact safety during the plant startup and subsequent power operation. In
addition to inspecting steam generator replacement work and associated plant
restoration activities, the NRC Staff inspected numerous equipment, training,
and system readiness issues. Important among these were design control
deficiencies identified in ConEd’s communications with its nuclear steam supply
system vendor. The NRC Staff documented the preliminary results of these
inspections in a letter to ConEd dated December 22, 2000 (ADAMS Accession
No. ML003780263).
Notwithstanding the inspection and oversight activities prior to and during the
plant restart, the NRC Staff performed the supplemental inspection (95003)
prescribed by the ROP for a plant with multiple degraded cornerstones.
Fourteen inspectors spent 3 weeks onsite examining key safety issues, such as
human performance, equipment performance, design and configuration control,
emergency preparedness, and corrective action processes. This inspection
evaluated many of the areas of concern identified by the Petitioners. The purpose
of this inspection was to make sure the NRC had not missed important issues and
to provide a supplemental assessment of the situation and the underlying causes
of the performance problems at IP2. Recognizing that performance problems and
weaknesses existed, the NRC charged the team with independently evaluating
whethertherewasanacceptablemarginofsafetyatIP2. Theinspectionscopewas
selected in a manner consistent with the 95003 procedure, a procedure developed
as an integral part of the revised ROP. The procedure includes a review of the
effectiveness of the IP2 management in operating the plant safely. The findings
332
from that inspection were documented in a report dated April 10, 2001 (NRC
Inspection Report 05000247/2001-002,ADAMS Accession No. ML011000373).
Throughoutalloftheseinspectionsandreviews,theNRCStaffhasconsistently
assessed problems and issues in relation to their impact on plant safety. The NRC
expects the Licensee for IP2 to assess all deficiencies in terms of the operability
of safety systems, regardless of whether the deficiency was identified during an
NRC inspection or by a plant employee through the Licensee’s corrective action
process. This is particularly important in the period before plant restart after a
long shutdown. If, during any of the reviews and inspections, the NRC Staff had
encountered conditions that ultimately defeated the functions of safety systems,
the NRC Staff would have taken appropriateaction to ensure the plant was placed
in a safe condition and expanded the scope of reviews or inspections. During
the inspections and assessments performed at IP2, the NRC Staff did not identify
multiple, significant violations of requirements that would cause the NRC to lose
confidence in the Licensee’s ability to maintain and operate the facility safely.
Likewise, the NRC did not identify safety-significant examples of operation of
the facility outside its design basis.
In evaluating the concerns of the Petitioners, the NRC Staff took additional
actions to ensure that the Licensee CRs submitted by the Petitioners during the
January 24, 2001, public meeting contained no new safety-significant issues.
CRs document out-of-normal conditions. Licensee management investigates the
conditions and remediates conditions that are confirmed as requiring attention on
a safety-prioritized basis. The NRC Staff does not review each CR; rather, the
NRC Staff screens CRs for risk or safety significance as one of many inputs to
inspection activities.
ConEd has set a low threshold for reporting out-of-normal conditions at the
plant and encourages all members of the plant staff to initiate CRs. As a result,
some reports are repetitions and others describe conditions that are of low safety
significance. TheCRs submittedbythePetitionerstothe NRC werea samplingof
the CRs enteredinto the CR databaseby ConEdemployeesovera 5-monthperiod
(September 2000–January 2001). Many of these reports describe out-of-normal
plant conditions that are of low safety significance.
The NRC Staff reviewed each of the CRs, including those highlighted in
the UCS evaluation submitted to the Staff during the January 24, 2001, public
meeting, to determine whether the reports provided new evidence that ConEd
was not operating IP2 safely. The Staff screened the reports for the types of
issues identified by the Petitioners. For example, the NRC Staff selected CRs
that repeatedly documented similar out-of-normal conditions (suggesting that
ConEd had failed to fix the root causes of problems) and CRs that documented
ineffective corrective actions. The NRC Staff also selected CRs that highlighted
discrepancies between the as-built plant and the intended design of the plant,
and CRs that identified defects in the material condition of the plant. The
333
Staff identified approximately forty such CRs. The Staff compared these reports
and those identified by the UCS to the findings from the region-based Problem
Identification and Resolution Inspection conducted October 2–20, 2000, and
the NRC Supplemental Inspection 95003 conducted January 16–February 9,
2001. The Staff found that an overwhelming majority of reports screened by
the NRC Staff discussed issues that were similar to the issues identified by
regional inspectors and did not conflict with previous NRC conclusions from
those inspections (see NRC Inspection Reports 50-247/00-012, dated December
4, 2000, and 05000247/2001-002, dated April 10, 2001, at ADAMS Accession
Nos. ML003774212and ML011000373,respectively). TheNRC Staff performed
an additional inspection of reactor protection system (RPS) wiring defects at
IP2 (documented in CR 200100327). Based on the inspection, the Staff
found no problems that would render the RPS incapable of performing its
intended safety function. The NRC Staff documented the results in Inspection
Report 05000247/2001-005, dated June 11, 2001 (ADAMS Accession No.
ML011630055). None of the remaining CRs indicated any immediate or past
safety or operability concerns at IP2.
The NRC Staff acknowledgesthat performanceproblemsat the station require
continued Licensee and NRC attention. While recognizing that some progress to
improve performance has been made, the NRC Staff has expressed its concern to
ConEd (most recently in an annual assessment letter for IP2 dated May 31, 2001,
ADAMS Accession No. ML011510375)that such progresshas been slow overall
and limited in some areas. However, the NRC Staff does not believe that the
limited improvement in performance warrants a suspension of IP2’s license. The
NRC’s recent inspections indicate that the Licensee for IP2 is operatingwithin its
Technical Specifications, the NRC regulations, and its license.
Although challenges still exist for the Licensee of IP2 in the areas of problem
identification and resolution and design control, NRC findings from the April
10, 2001, inspection report indicate the plant is being operated safely. The Staff
expects that Entergy, as the new Licensee for IP2, will continue to review all
conditionreports,determinetheirsignificancetoplantsafety,andtakeappropriate
actions to correct out-of-normal conditions in a timely manner. The NRC Staff
will assess the effectiveness of Entergy’s corrective action program and monitor
Entergy’s progress in reducing the backlog of out-of-normalconditions.
The Petitioners also requested that IP2 remain on the list of ‘‘agency focus’’
plantsuntiltheLicenseedemonstratesthatitcanfulfillitsregulatoryrequirements
and commitments. The NRC replaced the licensee evaluation process that
produced the list of agency focus plants with the ROP. Under the ROP, IP2 was
designated as a plant with ‘‘multiple/repetitive degraded cornerstones.’’ This
designation requires specific agency actions, including enhanced oversight and
additional inspections by the NRC (similar to the actions taken in the past for an
agency focus plant). The Petitioners’ request to maintain the plant on a list of
334
plantsrequiringenhancedoversightandinspectionisconsistentwithNRCactions
alreadytaken at IP2. For this reason, the NRC Staff grants the Petitioners’ request
to maintain IP2 on the list of agency focus plants. However, the Petitioners’
request also provides specific actions that must be performed by the Licensee to
be removed from the agency focus list (‘‘until the Licensee demonstrates that it
can fulfill its regulatory requirements and commitments’’), actions that are not in
accordance with the guidance in the ROP and inconsistent with the finding from
thisreview. Therefore,theNRCStaffdoesnotgrantthisportionofthePetitioners’
request. The NRC will continue heightened oversight of IP2 in accordance with
the ROP until it gains confidencethat the performanceimprovementprogramhas
substantially addressed the performance weaknesses that have been identified.
Issue 2
Is there a basis to initiate an investigation of ConEd regarding the August
1999 and February 2000 events at IP2?
The Petitioners specifically requested that the NRC investigate the potential
misrepresentation of material facts by the utility to determine whether the
significantly insufficient calculations relied on to ensure the adequacy of design
of keysystems, includingthe calculationssupportingthe steam generatoranalysis
and the electric bus analysis, were due to a lack of rigor and thoroughness or
deliberately misleading. The Petitioners stated that the NRC granted the license
amendment deferring the midcycle inspection based on faulty and inaccurate
information provided by ConEd; for example, tube defects were missed during
the June 1997 steam generator tube nondestructive examination due to improper
use of testing equipment, inadequate procedures, and inadequate analysis by
ConEd. These errors contributed to the tube failure event. The Petitioners believe
ConEd may have deliberately misled the NRC during the review of the license
amendment. The Petitioners speculated that another event in August 1999, which
involved complications following an automatic reactor shutdown, might have
been caused by similar deliberate actions by ConEd. The Petitioners did not
provide any additional information as to why they believe the August 1999 and
February 2000 events warrant an investigation of potentialLicensee wrongdoing.
NRC Response
TheNRCStaffheldinternalmeetingsfollowingthesteamgeneratortubefailure
event to determine whether there was any specific indication of wrongdoing by
ConEd in obtaining the NRC’s approval of the amendment to allow a one-time
extension of the steam generator inspection interval. A specific indication of
wrongdoing, beyond mere suspicion, would have prompted an investigation of
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ConEd by the NRC’s Office of Investigations (OI). During these meetings, the
participantsdiscussedthefactsofthesteamgeneratortubefailureevent. Based on
a review of the facts, the participants reached the consensus that an investigation
was not warranted. The participants concluded that there was no reasonable basis
for suspecting that a willful violation of 10 C.F.R. §50.9, ‘‘Completeness and
Accuracy of Information,’’ occurred. The NRC’s OI staff was present at the
meetings, participated in the discussions, and agreed with the decision not to
conduct an investigation.
The NRC also dispatched two Augmented Inspection Teams to review the
causesandsafetyimplicationsof,andConEd’sactionsafter,thereactorautomatic
shutdownwith complicationsin August1999and the steam generatortubefailure
in February 2000. The findings from each inspection were documented in letters
to Mr. A. Alan Blind of ConEd, dated October 19, 1999 (NRC Inspection Report
05000247/99-08) and April 28, 2000 (NRC Inspection Report 05000247/2000-
002)(ADAMS Accession Nos. ML992950033and ML003709064,respectively).
The Staff identified human performance issues (such as configuration control,
poormanagementoversight,andcorrectiveactionprogramdeficiencies)ascauses
of the events. The Staff identified no specific indication of wrongdoing on the
part of ConEd. Therefore, the Staff found no basis to initiate an OI investigation
of the August 1999 or February 2000 events.
A specific indication of wrongdoing, beyond mere suspicion or potential, is
the threshold to initiate an OI investigation. The Petitioners did not provide any
new information in the petition or in the supplemental documents, beyond mere
speculation, about wrongdoing by ConEd in the August 1999 or February 2000
events. Consequently, the Petitioners’ request to initiate an investigation is not
granted.
Issue 3
Based on the performance problems discussed in the petition, should ConEd
be allowed to transfer the IP2 license to another owner?
The Petitioners requested that the NRC deny any license transfer for IP2
until the Licensee’s management can demonstrate that the UFSAR, CR backlog,
and maintenance requirements are up to date, and that plant workers have been
retrained to the modified UFSAR. During the January 24, 2001, public meeting,
the Petitioners clarified their position on this request by stating that IP2 was
operating too far out of its licensing basis and the licensing documentation was
too inaccurate to justify a license transfer at this time. In addition, the Petitioners
contended that the NRC’s procedure for reviewing license transfer applications
was unequipped to evaluate the transfer of an agency focus plant to a new entity
that was not an electric utility. The Petitioners were concerned about Entergy’s
‘‘ability to go back to ratepayers and recover costs for an extended outage or for
336
bringing the reactor back into compliance.’’ Finally, the Petitioners contended
that Entergy does not have the financial qualifications to address the kinds of
problems posed by IP2 at this time. The Petitioners based their conclusions, in
part, on the document ‘‘Citizens Awareness Network, Inc.’s Revised Contention
on Financial Qualifications in the License Transfers for James A. FitzPatrick and
Indian Point 3 Nuclear Power Stations per Commission Memorandum & Order,
November 27, 2000,’’ submitted to the NRC Staff during the January 24, 2001,
public meeting.
NRC Response
After reviewing the Petitioners’ request to deny any license transfer requests
for IP2, the Staff determined that the Petitioners’ request does not meet the
requirements for review under 10 C.F.R. §2.206. The Licensee performance
issues that constitute the basis for the Petitioners’ request to deny any license
transfers for IP2 have been addressed in the NRC Staff’s response to Issue 1 of
this Director’s Decision.
A request to transfer an NRC operating license under 10 C.F.R. §50.80 to
a new entity is processed as an amendment to the license. NRC Management
Directive 8.11, ‘‘Review Process for 10 C.F.R. 2.206Petitions,’’ Handbook8.11,
Part III, section C(2)(c), specifies that petitioners who request that a license
amendmentbe denied should address such a request in the context of the relevant
licensing action, not as a petition for enforcement action under 10 C.F.R. §2.206.
At the time this petition was submitted, there was no proceeding in which the
PetitionerscouldaddresstheirconcernsregardingthetransferoftheIP2operating
license. However, on December 12, 2000, ConEd submitted a joint application to
transfer the operating licenses for Indian Point Nuclear Generating Units Nos. 1
and 2. Notice of the request for approval and an opportunity to request a hearing
or to submit written comments was published in the Federal Register on January
29, 2001 (66 Fed. Reg. 8122). Pursuant to the notice, on February 20, 2001,
CAN filed hearing requests and petitions to intervene in the review of the license
transfer applications.
ThePetitionersalso stated duringthe January24, 2001,publicmeetingthatthe
NRC should not approve any license transfer requests for IP2 due to deficiencies
in the license transfer review process. Section 2.206 provides the opportunity for
anypersonto file a requestto institute a proceedingpursuantto 10C.F.R. §2.202,
‘‘Orders,’’to modify, suspend, or revoke a license, or for any other action as may
be proper. However, a request that the NRC institute a proceeding under section
2.202 due to perceived deficiencies in existing NRC regulations is not within the
scope of section 2.206. If the Petitioners consider the license transfer regulations
deficient, they may address the deficiency by filing a petition for rulemaking
337
pursuant to 10 C.F.R. §2.802, ‘‘Petition for Rulemaking,’’ to amend or rescind
the regulation.
Consequently, the Petitioners’ request that the NRC not approve any license
transfer does not meet the requirements for review under section 2.206.
Itshouldbenoted,however,thattheNRCStaffsharesthePetitioners’concerns
about the financial qualifications of a transferee. Section 50.80, ‘‘Transfer
of Licenses,’’ provides the regulatory requirements for license transfers and
stipulatesthatanapplicationfortransfershallincludeasmuchofthetechnicaland
financial qualifications information described in 10 C.F.R. §50.33, ‘‘Contents
of application; general information,’’ and §50.34, ‘‘Contents of application;
technical information,’’ as would be required by those sections if the application
were for an initial license. The Commission will approve an application for
the transfer of a license only if the Commission determines that the proposed
transferee is qualifiedto be the holderof the license and the transfer of the license
is otherwise consistent with the applicable provisions of law, regulations, and
orders issued by the Commission.
As specified in section 50.33, a license transfer applicant must provide
informationthatdemonstratesitpossessesorhasreasonableassuranceofobtaining
the funds necessary to cover the estimated operating costs for each of the first 5
years, and must identify the source of these funds. Using this information, the
Commission determineswhether the transferee’sfinancial qualificationsmeet the
requirements for license transfer.
The Petitioners’ issues concerning the operational performance of the current
Licensee, including errors and inaccuracies in the UFSAR, maintenance and CR
backlogs, and other operational concerns, do not have a direct bearing on the
decision to approve or deny the transfer of a license. As previously stated in
Commission Memorandum and Order CLI-00-20, 52 NRC 151 (2000) (ADAMS
Accession No. ML003758115), a license transfer proceeding is not a forum for
a full-scale health-and-safety review of the plant. Operational issues of the kind
described in the petition and the supplement will need to be addressed by the
Licensee whether or not the license is transferred. The Commission cannot deny
a license transfer request solely on the basis of licensee performance. If the
proposed transferee meets the provisions of 10 C.F.R. §50.80, the Commission
will approve the transfer of the license.
III. CONCLUSION
The NRC has completed its review of the information provided by the
Petitioners, andforthe reasonsdiscussed herein,the NRC Staffconcludesthatthe
information contained in the petition and the supplement does not warrant NRC
Staff action to suspendor revokethe operatinglicense forIP2. Likewise, the Staff
338
findsnobasisforinitiatinganinvestigationintowrongdoingonthepartofConEd.
For these issues, the Petitioners’ requested actions are not granted. However, the
NRC grants in part the Petitioners’ request that IP2 remain on the list of agency
focus plants (i.e., plants with multiple/repetitive degraded cornerstones). The
NRC Staff did not grant the Petitioners’ request to define under what conditions
IP2 will be removed from the list of plants with multiple/repetitive degraded
cornerstones.
In addition, the Staff finds that the Petitioners’ request to delay or deny a
request to transfer the operating license for IP2 until the Licensee’s management
can demonstratethat the UFSAR, CR backlog, and maintenance requirementsare
up to date, and that plant workers have been retrained to the modified UFSAR
does not meet the requirements for review under section 2.206.
A copy of this Decision will be filed with the Secretary of the Commission
for the Commission’s review in accordance with 10 C.F.R. §2.206(c). As
provided for by that regulation, the Decision will constitute the final action of
the Commission 25 days after the date of issuance of the Decision unless the
Commission, on its own motion, institutes a review of the Decision within that
time.
FOR THE NUCLEAR REGULATORY
COMMISSION
Samuel J. Collins, Director
Office of Nuclear Reactor Regulation
Dated at Rockville, Maryland,
this 21st day of November 2001.
Attachments (not published):
1. Petitioners’ reply to the draft Director’s Decision
2. NRC response to the Petitioners’ reply
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Cite as 54 NRC 340 (2001)DD-01-5
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
OFFICE OF NUCLEAR REACTOR REGULATION
Samuel J. Collins,Director
In the Matter of Docket No. 50-247
(License No. DPR-26)
ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point, Unit 2) November 26, 2001
The Petitioner requests that the NRC issue a Demand for Information (DFI)
to each of the Licensees listed in the Petitioner’s letter dated April 24, 2001,
requiringeach Licenseeto providea docketedresponseasto howit complieswith
10 C.F.R. §§26.10 and 26.20, specifically the requirements that: (1) ‘‘Fitness-
for-duty programs must: [p]rovide reasonable measures for the early detection of
persons who are not fit to perform activities within the scope of this part’’ (10
C.F.R. §26.10); and (2) ‘‘Licensee policy should also address other factors that
could affect fitness for duty [FFD] such as mental stress, fatigue and illness’’ (10
C.F.R. §26.20).
The final Director’s Decision on this petition was issued on November 26,
2001. In that decision the Staff noted that the petition raised generic policy
questionsconcerninghowtheNRCrequirementsapplytocircumstancesinvolving
individuals who declare themselves not fit for duty because of fatigue and to
the actions taken by licensees in response to such declarations. Specifically,
the manner in which a licensee or its contractor implements certain conditions
of employment or policies for preventing the abuse of leave can potentially
discourage employees from reporting that they are not fit for duty or contribute
to inadequacies in the assessment of employee FFD. Either outcome would
undermine the effectiveness of a licensee’s FFD program. The Staff noted that
these concerns may not be limited to licensees that use Wackenhut security
personnel. As a result, the Staff did not believe that a regulatory action limited
to licensees that use Wackenhut security personnel is an appropriate means
to address this concern. The Staff also believed that in matters concerning
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self-declaration of FFD, the potential for conflicts with NRC requirements was
largely in the implementation of Licensee policies, procedures, and conditions
of employment, rather than the written terms of these documents. Accordingly,
a DFI requesting such documents was not expected to provide significant new
information to the Staff and therefore did not appear warranted. However, the
Staff granted the Petitioner’s request to the extent that the NRC will address the
Petitioner’s concerns through the generic communication process. Specifically,
the Staff would develop a communication to all nuclear power plant licensees
subject to the requirements of Part 26. That communication will highlight the
concerns identified in the petition and articulate the NRC’s requirements as they
apply to matters involving a worker’s self-declaration of FFD. Further, as the
StaffproceedswithproposalstorevisePart26andaddressworkerfatiguethrough
rulemaking,itwillconsidertheneedtoclarifytheNRC’sexpectationsconcerning
worker declarations of FFD and work scheduling.
DIRECTOR’S DECISION UNDER 10 C.F.R. §2.206
I. INTRODUCTION
ByletterdatedApril24,2001,assupplementedbyletterdatedMay3,2001,Mr.
David A. Lochbaum,on behalf of the Union of Concerned Scientists (Petitioner),
pursuanttosection2.206ofTitle10ofthe CodeofFederalRegulations(10C.F.R.
§2.206), requested that the U.S. Nuclear Regulatory Commission (Commission
or NRC) issue a Demand for Information (DFI) to Licensees that use security
personnel supplied by Wackenhut Corporation (Wackenhut), requiring them to
provide a docketed response explaining how they comply with the requirement
of 10 C.F.R. §26.10 that licensees ‘‘provide reasonable measures for the early
detection of persons who are not fit to perform activities within the scope of this
part’’ and the requirement of 10 C.F.R. §26.20 that ‘‘[l]icensee policy should
also address other factors that could affect fitness for duty [FFD] such as mental
stress, fatigue and illness.’’
The Petitioner also requested that the DFI require each Licensee to generally
describe its policy for the aforementioned factors and to explicitly describe its
policyforthesefactorsasappliedtothesecuritypersonnelsuppliedbyWackenhut.
II. BACKGROUND
As a basis for the request described above, the Petitioner stated that:
An individual employed by Wackenhut Corporation and assigned duties as a security officer
at Indian Nuclear 2 was fired on June 26, 2000 . .. . The individual had worked five straight
341
12-hour shifts [(12 hours on shift followed by 12 hours off for 5 straight days)] and declined
to report for a sixth straight 12-hour shift because he reported to his management — in writing
— that it would be ‘‘physically and mentally exhausting.’’ The individual reported to his
management — in writing — that he was fully aware of his condition and ‘‘would not want
to be negligent in performing [his] duties as a security officer.’’ The security officer had
unescorted access to Indian Point 2 and thus was covered by 10 C.F.R. Part 26 as specified in
Section 26.2 . . . .
The Petitioner also pointed out that Wackenhut employees are required by
terms of their employment application, their Collective Bargaining Agreement,
and the Security Officer Handbook to report to work when directed.
The Petitioner stated that the subject security officer reported to his
managementthathefelt notfitfor duty,declinedto reportformandatedovertime,
and was terminated.
The Petitioner also stated that ‘‘10 C.F.R. 26.20 requires all licensees to
have [a] formal policy and written procedures for factors that could render plant
workers not fit for duty. Fatigue is specifically mentioned in 10 C.F.R. 26.20.’’
1
The Petitioner contended that Wackenhut’s contractual right conflicts with the
federal regulations in 10 C.F.R. §26.10(a) and (b) and that in this case, the
individual essentially provided ‘‘reasonable measures for early detection’’ of a
condition rendering him not fit to perform activities within the scope of Part 26.
The Petitioner furtherstated that, rather than respecting the individual’sjudgment
or seeking another opinion by a Medical Review Officer or other health care
professional, Wackenhut fired that individual.
Subsequently, the Petitioner provided additional information by letter dated
May 3, 2001, and addressed the Petition Review Board (PRB) in a transcribed
telephoneconferenceon May 7, 2001. The transcriptof this telephoneconference
is available in the Agencywide Documents Access and Management System
(ADAMS) for inspection at the Commission’s Public Document Room (ADAMS
accession number ML012150128), at One White Flint North, 11555 Rockville
Pike (first floor), Rockville, Maryland, and from the ADAMS Public Library on
theNRC’s Web siteat http://www.nrc.gov/reading-rm.html(thePublicElectronic
Reading Room). If you do not have access to ADAMS, or if you have problems
in accessing the documents in ADAMS,contact the NRC Public Document
Room (PDR) reference staff at 1-800-397-4209 or 301-415-4737 or by e-mail
to [e-mail] on the information provided by the Petitioner, the PRB
determined that his request met the criteria for review under section 2.206. In
addition, by letter dated June 13, 2001,the NRC responded to the Petitioner’s
1 The Staff acknowledges that 10 C.F.R. §26.20 specifically mentions fatigue. However, the language is
nonmandatory. Paragraph 26.20(a) states that ‘‘licensee policy should [emphasis added] also address other factors
that could affect fitness for duty such as mental stress, fatigue, and illness.’’
342
letter dated April 23, 2001, in which he requested clarification of NRC policy
concerning fatigue of security personnel.
By letter dated September 28, 2001, NRC Staff sent the proposed Director’s
Decision to the Petitioner. The Petitioner’s reply and the Staff response to
the Petitioner’s comments are attached as Enclosures 1 and 2 (not published),
respectively.
III. DISCUSSION
In response to the petition, the Staff reviewed (1) the Wackenhut Security
Officer Handbook and (2) the Agreement between Wackenhut Corporation and
International Union, United Plant Guard Workers of America (UGPWA) and
its Amalgamated Local 515 for Security Employees at ConEd Nuclear Power
Station, Indian Point, New York, for the period of March 8, 1999, to March 3,
2002(Agreement). The purposeofthe review wasto determinewhethertheterms
or conditions of these documents, as they pertain to a worker’s declaration of
FFD, are contrary to requirements applicable to NRC licensees, their contractors
or subcontractors, or their employees. The Staff also reviewed concerns received
by the NRC in the last 2 years that Licensee procedures, policies, or practices
discouraged individuals from reporting that they were not fit for duty because of
excessive fatigue. Throughthese reviews, the Staff soughtto determinewhethera
DFI, as requested throughthe petition, was warranted. The NRC is independently
addressing the adverse employment action taken against the subject security
guard consistent with agency procedures. Further, the Staff has reviewed the
relationship between Consolidated Edison Company of New York, Inc. (ConEd)
and Wackenhut. The Staff determined that Wackenhut is required to implement
theLicensee’sproceduresregardingfitnessforduty. Thus,theLicenseemaintains
an awareness of Wackenhut personnel procedures and practices. Also, the NRC
issued a ‘‘chilling effect letter’’ to ConEd on February27, 2001. The NRC issued
this letter following a February 8, 2001, letter from the Area Director of the
Occupational Safety and Health Administration (OSHA). The letter stated that
OSHA’s investigation indicated that a contract security employee was engaged
in a protected activity within the scope of the Energy Reorganization Act and
that discrimination, as defined and prohibited by the statute, was a factor in the
termination of the individual’s employment. Although there was a settlement in
the OSHA case, the NRC is continuing to review this matter.
A. Staff’s Findings
The preface to the Wackenhut Security Officer Handbook states: ‘‘The
company retains the absolute right to terminate any employee, at any time, with
343
or without good cause.’’ In addition, section 2.15, Discipline, of the Wackenhut
SecurityOfficerHandbook,itemizes‘‘refusaltowork’’asgroundsforimmediate
dismissal. The Staff identified these statements as terms of employment that
may be applicable to instances of workers who refuse to work because of FFD
concerns. However, the Staff finds no necessary inconsistency between these
statements and Part 26. Although individuals may declare to their employer that
they are not fit for duty because of excessive fatigue, and the NRC encourages
individuals to inform their employer if they believe their FFD is suspect, Part 26
does not require the individual to refuse to work and thereby risk disciplinary
action. Rather, 10 C.F.R. §26.27(b)(1) states that ‘‘[i]mpaired workers, or those
whose fitness may be questionable, shall be removed from activities within the
scopeofthispart,andmaybereturnedonlyafterdeterminedtobe fitto safelyand
competently perform activities within the scope of this part.’’ As a consequence,
when presented with information that a worker’s fitness for duty is questionable,
it is the Licensee’s responsibilityto make a determinationthat the individual is fit
for duty, prior to returning the individual to his or her duties.
Inreviewingthe AgreementbetweenWackenhutandUGPWA, the Staffnoted
that article 18 of the Agreement, Separability, states:
Should any provisions of this Agreement at any time during its life be found in conflict with
the federal or state law, or as such laws may be amended, then such provisions shall continue
in effect only to the fullest extent permissible under the applicable law ....
Thus, the document makes it clear that compliance with NRC requirements is
required, regardless of any terms or conditions in the Agreement that may be in
conflict with federal law.
Part 26 does not constitute the only regulatory constraint upon licensees and
their contractors in matters concerning worker declarations of FFD. Section 50.7
prohibits discrimination by a licensee, or a licensee contractor or subcontractor,
against an employee for engaging in protected activities.
2 As a consequence, it
is a violation of section 50.7 for a licensee, or its contractor or subcontractor, to
take adverse personnel action against an individual when the basis of the action
is, either in whole or in part, the individual’s assertion that he or she is not fit
for duty or the individual’s refusal to work based upon reasonable belief that
returning to work would be a violation of Part 26. However, pursuant to section
50.7(d), an employee’s engagement in protected activities does not automatically
render him or her immune from discharge or discipline for legitimate reasons or
from adverse action dictated by nonprohibited considerations.
2 Discrimination includes discharge and other actions that relate to compensation, terms, conditions, or privileges
of employment.
344
In the event that an individual asserts that a licensee, or its contractor or
subcontractor, took adverse employment action against an individual following a
self-declarationthatheorsheisnotfitforduty,theNRCreviewsthecircumstances
of, and the bases for, the action in order to make a determination concerning the
potential violation of any NRC requirements. In reviewing the licensee’s basis
for any employee sanction, with respect to the requirements of section 50.7, the
NRC would consider whether the licensee had a legitimate, nondiscriminatory
basis for the sanction.
Separate from its inquiry into potential violations of section 50.7, the NRC
may,undercertaincircumstances,alsoconsiderwhetheralicensee’sFFDprogram
meets the general performance objective of Part 26 that licensee FFD programs
providereasonableassurancethatnuclearpowerplantpersonnelarenot‘‘mentally
or physically impaired from any cause, which in any way affects their ability to
safely and competently perform their duties.’’ Specifically, the NRC may assess
whether a licensee’s work schedule and practices for assessing fitness for duty
are resulting in personnel performance consistent with reasonable assurance that
personnel are fit for duty.
Although employees who report FFD concerns may be subject to employer
sanctions for other, nonprohibited, considerations (e.g., personal negligence with
respect to maintaining one’s FFD), the Staff notes that such sanctions, depending
uponhow theyare implementedandorcommunicated,can potentiallydiscourage
future self-declarations. Pursuant to 10 C.F.R. §26.10(b), FFD programs must
provide reasonable measures for the early detection of persons who are not fit to
perform their activities. The NRC considers self-declaration to be an important
adjunct to behavioral observation in providing early detection of persons who
are not fit for duty because of fatigue. As a result, the NRC may, under
certain circumstances, find it appropriate to assess whether a licensee’s actions,
in conjunction with the prescribed work schedules, has created an environment
that is not conducive to the reporting of FFD concerns. The NRC may also
find it appropriate to assess such circumstances relative to the NRC’s policy
statement, ‘‘Freedom of Employees in the Nuclear Industry to Raise Safety
Concerns Without Fear of Retaliation.’’
IV. CONCLUSION
As clarified in Petitioner’s October 2, 2001 letter, the Petitioner has raised the
concern that Wackenhut security personnel at NRC-licensed facilities who feel
theirperformancemaybeimpairedandreportittotheirsupervisorswillhavetheir
fatigue concerns dismissed and be forced to work. The Petitioner contends that
security officers are required by the terms of their employment application, the
CollectiveBargainingAgreement,andtheWackenhutSecurityOfficerHandbook
345
to report to work when directed and that this ‘‘contractual right’’ is in conflict
with specific requirements of Part 26. The Staff’s review indicates that these
writtenconditionsandagreementsamongWackenhut,itsemployeesattheConEd
Nuclear Power Station, and UGPWA are not, by themselves, violations of NRC
requirements. However, when informed that a worker’s fitness for duty is
questionable, licensees are required, pursuant to 10 C.F.R. §26.27(b)(1),to make
a determination that the worker is fit for duty, prior to returning the worker to his
or her duties.
The Staff notes that the petition has raised genericpolicy questions concerning
howNRC requirementsapplytocircumstancesinvolvingindividualswhodeclare
themselvesnot fit forduty becauseof fatigue and to the actions takenby licensees
inresponsetosuchdeclarations. Specifically,themannerinwhichalicenseeorits
contractorimplementscertainconditionsofemploymentorpoliciesforpreventing
the abuse of leave can potentially discourage employees from reporting that they
are not fit for duty or contribute to inadequacies in the assessment of employee
FFD. Either outcome would undermine the effectiveness of a licensee’s FFD
program. These concerns may not be limited to licensees that use Wackenhut
security personnel. As a result, the Staff does not believe that a regulatory action
limitedtolicenseesthatuseWackenhutsecuritypersonnelisanappropriatemeans
to address this concern. In addition, the Staff believes that in matters concerning
self-declaration of FFD, the potential for conflicts with NRC requirements is
largely in the implementation of licensee policies, procedures, and conditions of
employment,ratherthanthewrittentermsofthesedocuments. Accordingly,aDFI
requestingsuchdocumentsis notexpectedto providesignificantnew information
to the Staff and therefore does not appear warranted. However, the Staff has
decidedtograntthePetitioner’srequesttotheextentthattheNRC willaddressthe
Petitioner’s concerns through the generic communication process. Specifically,
the Staff is developing a communication to all nuclear power plant licensees
subject to the requirements of Part 26. The communication will highlight the
concerns identified in the petition and articulate the NRC’s requirements as they
apply to matters involving a worker’s self-declaration of FFD. The Staff intends
to issue the communication in the near future. Further, as the Staff proceeds
with proposals to revise Part 26 and address worker fatigue through rulemaking,
it will consider the need to clarify the NRC’s expectations concerning worker
declarations of FFD and work scheduling.
A copy of this Decision will be filed with the Secretary of the Commission so
that the Commission may review it in accordance with 10 C.F.R. §2.206(c). As
provided for by this regulation, the Decision will constitute the final action of the
346
Commission 25 days after the date of the decision unless the Commission, on its
own motion, institutes a review of the Decision within that time.
FOR THE NUCLEAR REGULATORY
COMMISSION
Samuel J. Collins, Director
Office of Nuclear Reactor Regulation
Dated at Rockville, Maryland,
this 26th day of November 2001.
Enclosures (not published):
1. Comments on Proposed Director’s Decision
2. NRC Staff Response to Petitioner’s Comments
347
Cite as 54 NRC 349 (2001)CLI-01-24
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Nils J. Diaz
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket Nos. 50-336-LA
50-423-LA
DOMINION NUCLEAR
CONNECTICUT, INC.
(Millstone Nuclear Power Station,
Units 2 and 3) December 5, 2001
The Commission reviews an Atomic Safety and Licensing Board decision
that denied a request for hearing in this license amendment proceeding. The
Commission affirms the Licensing Board’s decision.
REGULATIONS: INTERPRETATION (10 C.F.R. §50.36)
The required contents of technical specifications are outlined in 10 C.F.R.
§50.36. Technical specifications that do not meet any of the criteria found in
section 50.36 may be transferred to licensee-controlled documents.
RULES OF PRACTICE: CONTENTIONS
The contention rule insists upon some reasonably specific factual and legal
basis for the contention. Under the rule, presiding officers may not admit open-
ended or ill-defined contentions lacking in specificity or basis. Petitioners must
articulate at the outset the specific issues they wish to litigate as a prerequisite to
gaining formal admission as parties.
349
REGULATIONS: INTERPRETATION (10 C.F.R. §50.36)
There is no statutory or regulatory requirement that every operational detail
be subject to a technical specification. Not all licensee actions or changes in
procedures must carry with them an opportunity for public hearing. Technical
specifications should focus upon those plant conditions most important to safety.
RULES OF PRACTICE: CONTENTIONS
Petitioners may not demand an adjudicatory hearing to attack generic NRC
requirements or regulations, or to express generalized grievances about NRC
policies.
RULES OF PRACTICE: CONTENTIONS
In some past cases, the Commission or its hearing boards have admitted
contentions based upon claims of poor licensee ‘‘character’’ or ‘‘integrity.’’ We
havealwaysinsisted,however,thatformanagementcharactertobeanappropriate
basis for adjudication in a licensing proceeding, there must be some direct and
obvious relationship between the character issues and the licensing action in
dispute. Allegationsof managementimproprietiesmustbe of morethan historical
interest: they must relate directly to the proposed licensing action.
MEMORANDUM AND ORDER
I. INTRODUCTION
Today we review an Atomic Safety and Licensing Board decision,Northeast
Nuclear Energy Co.(Millstone Nuclear Power Station, Units 2 and 3), LBP-
01-10, 53 NRC 273 (2001), that denied a petition for leave to intervene and
request for hearing filed by the Connecticut Coalition Against Millstone and
the STAR (‘‘Standing for Truth About Radiation’’) Foundation. The Petitioners
seek to challenge two related license amendments — one for Unit 2 and the
other for Unit 3 — which remove some procedural details from the Millstone
technical specifications and relocate them in the Millstone Radiological Effluent
Monitoring and Offsite Dose Calculation Manual (REMODCM). The Board
found the Petitioners’ sole contention inadmissible, and thus denied the petition
for intervention. Pursuant to 10 C.F.R. §2.714a, the Petitioners have appealed
350
the Board’s decision.
1 DominionNuclear Connecticut, Inc. (DNC),
2 and the NRC
Staff support the decision. For the reasons we give below, we affirm.
II. BACKGROUND
This proceeding arises from a license amendment application that NNECO
submitted to the NRC on February 22, 2000. Issued November 28, 2000,
the license amendments transfer certain details from the Licensee’s technical
specifications — specifically, its Radiological Effluent Technical Specifications
(RETS)) — to a Licensee-controlled document, the REMODCM.
The transfer of items from technical specifications to Licensee-controlled
documentsispartofanNRC-initiatedprogramtoimprovetechnicalspecifications
at all nuclear power reactors. Because the amendments in this proceeding stem
directly from this program, the Commission believes it would be helpful, at the
outset, to outline the general NRC effort to improve technical specifications and
to focus them on the most critical safety details. We then turn to the particular
license amendments and contention at issue in this case.
1. Technical Specifications and the NRC’s Policy To Improve Them
Under the Atomic Energy Act (AEA), every license to operate a production
or utilization facility must contain a list of technical specifications necessary for
adequate protection of public health and safety.See 42 U.S.C. §2232. Technical
specificationsmustincludeinformationontheamount,kind,andsourceofspecial
nuclear material; the place of use; and the particular characteristics of the facility.
Id.TheAEA,however,leavesituptotheCommissiontodetermine,andprescribe
by rule or regulation, what additional information should be included in technical
specifications to ensure public health and safety and the common defense and
security.
In 1968, the NRC promulgated10 C.F.R. §50.36, a rule outlining the required
contents of technical specifications.See 33 Fed. Reg. 18,610 (Dec. 17, 1968).
As originally issued, however, section 50.36 lacked ‘‘well-defined criteria.’’
1 The Petitioners filed their appeal under 10 C.F.R. §2.786. However, because this is an appeal from a decision
wholly denying a petition for leave to intervene, the appropriate regulation is 10 C.F.R. §2.714a. We, therefore,
treat the appeal as if it were filed under the appropriate regulation.2 When this proceeding began, the Licensee for MillstoneUnits 2 and 3 was Northeast Nuclear Energy Company
(NNECO). In March 2001, the NRC issued an order approving a request to transfer the operating licenses for
Millstone Units 2 and 3 from NNECO and certain co-licensee owners to DNC.See 66 Fed. Reg. 15,911. Conforming
license amendments were issued on March 31, 2001.See 66 Fed. Reg. 20,016. Accordingly, the new operator
licensee — and party in this proceeding — is DNC. The Petitioners indicate in their appeal brief that they are
challenging in state court the legitimacy of the transfer of operating authority to DNC. Their judicial challenge
involves nonradiological matters raised under the Clean Water Act and do not bear directly on the radiological
effluent issues raised in this proceeding.
351
Cleveland Electric Illuminating Co.(Perry Nuclear Power Plant, Unit 1), CLI-
96-13, 44 NRC 315, 318 (1996) (citing Final Policy Statement on Technical
Specifications Improvements for Nuclear Power Reactors, 58 Fed. Reg. 39,132,
39,132 (July 22, 1993)). This caused the number of items included in technical
specificationsto ‘‘mushroom[] after the rule was issued.’’Perry,44 NRC at 318.
Over time, technical specifications ‘‘essentially came to include all ‘Commission
requirements governing the operations of nuclear power reactors.’’’Id.(citing
Policy Statement, 58 Fed. Reg. at 39,133).
Asaresult,theNRCStaffattemptedtoridtechnicalspecificationsofexcessive
detail and confine them to the most safety-significant matters:
By the early 1980s, the NRC Staff concluded that the burgeoning number of items
commonly included in standard technical specifications was both diverting Staff and licensee
attention from the most significant safety requirements and unnecessarily burdening agency
and industry resources with a severalfold increase in license amendment applications. To
remedy this trend, the Staff initiated a Technical Specifications Improvement Project. The
project resulted in a policy to limit technical specifications to those items deemed most
important to safety.
Perry,44 NRC at 318 (citations omitted).
As part of its technicalspecifications initiative, the NRC revised section50.36,
which now identifies criteria to be used in determining what items must be
included in technical specifications.See 10 C.F.R. §50.36. If a procedural or
otherrequirementmeetsanyoneof thecriteria, itmustbe retainedin thetechnical
specifications.Id.Technical specifications that do not meet any of the criteria
may be transferred to licensee-controlled documents.See generally Technical
Specifications, Final Rule, 60 Fed. Reg. 36,953 (July 19, 1995). Licensees
are encouraged to ‘‘voluntarily use the criteria to relocate existing technical
specifications that do not meet any of the criteria.’’Id.at 36,958. Thus, the
agency policy is to prune technical specifications of voluminous details that
are relatively less significant, and thereby ‘‘focus licensee and plant operator
attention’’ on the most significant technical concerns.See Policy Statement, 58
Fed. Reg. at 39,135.
As part of the policy to streamline technicalspecifications, the NRC Staff over
the past several years has been identifying what kinds of items can be removed
— without adverse consequences for adequate assurance of safety — from the
standard technical specifications. NRC ‘‘generic letters,’’ issued to licensees
industrywide, have identified particular items deemed amenable to removal from
the technical specifications.
352
2. The License Amendments
The license amendments in this proceeding stem from Generic Letter 89-01,
which advised all power reactor licensees and applicants that ‘‘the procedural
details...onradioactiveeffluentsandradiologicalenvironmentalmonitoring
can be relocated to the Offsite Dose Calculation Manual.’’
3 The letter enumerates
specific radiological effluent technical specifications that licensees may choose
to relocate. Pursuant to Generic Letter 89-01, the license amendments at issue
here eliminate from the technical specifications numerous detailed procedures
for monitoring routine radioactive releases. The challenged amendments transfer
these procedural details to the Millstone REMODCM.
Licensees must adhere to a number of regulatory limits upon effluent releases.
Various proceduresand instruments enable licensees to sample the concentration
levels of radioactive effluentsand to monitor the release rate of routine, low-level
releases of gaseous and liquid effluents. Part of this surveillanceprogramconsists
of low-level radiation monitors set up to initiate an automatic alarm that can
alert the licensee well before an effluent release might exceed an applicable
radiological limit. In addition to an alarm, many of these monitors also have an
automatic trip function that will terminate the effluent release before it exceeds
applicable regulatory limits. A host of detailed procedural requirements govern
how frequently these monitors should be checked, tested, or calibrated, and what
measures should be taken when one or more of them might be inoperable. Such
detailed procedures are among the items that the license amendments in this
proceeding relocate.
It bears noting, however, that these license amendments involve only the
monitoring of common releases of low-level radioactive effluents. All nuclear
powerplantsroutinelyreleaselow-levelconcentrationsofradioactivematerialsin
their gaseousand liquid effluents. The instrumentsand proceduresfor monitoring
low-levelreleasesarenotintendedtostopormitigatereactoraccidents. Low-level
monitors are designed to operate only within a specific low range of radioactive
material concentrations associated with routine operations, and not to monitor
the elevated levels of radioactive materials that would be expected in a reactor
accident. Licenseeshaveother,so-called ‘‘mid-range’’or‘‘high-range’’radiation
monitors that monitor the elevated levels of materials that would occur in the
event of a serious accident. Thus, nuclear power plants have separate instruments
and procedures for tracking those effluent releases associated with accidents and
those involving merely routine operations. The license amendments at issue here
bear only upon the latter.
3 Generic Letter 89-01, ‘‘Implementation of Programmatic Controls for Radiological Effluent Technical
Specifications in the Administrative Controls Section of the Technical Specifications and the Relocation of
Procedural Details of RETS to the Offsite Dose Calculation Manual or to the Process Control Program’’ (Jan. 31,
1989) at 1.
353
While the license amendments at issue here transfer certain procedural
requirements from the technical specifications to the REMODCM, they neither
change nor abolish any of these requirements. In other words, the amendments
do not themselves alter any effluent monitoring instrumentation or procedures.
Nor is the licensee’s obligation to follow these monitoringprocedures in the least
diminishedbythetransferofprocedurestotheREMODCM.Justaslicenseesmust
comply with the requirements listed in technical specifications, they also must
comply with the commitments specified in licensee-controlled documents, such
as the REMODCM. The NRC Staff oversees compliance with such documents.
The practical effect of the amendments, however, is that the Licensee in
the future can make changes to the transferred effluent monitoring procedures
without a license amendment. Because technical specifications are part of an
operating license, any change to them requires a license amendment. In contrast,
the REMODCM typically can be adjusted without a license amendment.
4
A licensee is not free to alter its REMODCM indiscriminately, however.
Although the licensee need not obtain prior NRC approval, the licensee must
justifyandreportanychangeintheprocedureslistedintheREMODCM.TheNRC
Staffis theninapositiontoverifythattheproceduresconformtoNRC regulations
and standards on effluent surveillance. More importantly, though, altering
REMODCM procedures has no impact on the NRC’s substantive regulatory
requirements governing radioactive effluents and radiological environmental
monitoring, found in 10 C.F.R. Part 20 and Appendix I to 10 C.F.R. Part 50.See
also 40 C.F.R. Part 190. Regardless of any potential modification of procedures
listed in the REMODCM, existing limits on the concentration of radioactive
material that can be released in effluents remain the same, as do limits on the rate
of effluent release — ‘‘dose rate’’ — and all applicable offsite public dose limits.
See, e.g.,Table 2 of Appendix B to Part 20 (regardingconcentration);see also 10
C.F.R. Part 50, AppendixI (design criteria for equipmentto process and maintain
radioactive effluent releases as low as is reasonably achievable (ALARA)); 10
C.F.R. §20.1302; 10 C.F.R. §20.1501 (requirement to demonstrate the accuracy
of surveysof effluentconcentrationsand offsite dose levels, to assure compliance
with applicable dose limits).
5 In fact, all licensees are specifically required to
4 There are applicable control requirements governing changes to a REMODCM, found under both section 6
of the Technical Specifications and 10 C.F.R. §50.59. These could require a change to the REMODCM to
be accompanied by a license amendment, in which case there would be public notice and opportunity for a
hearing.5 Generic Letter 89-01 thus states that the relocation of effluent monitoring procedures is intended to improve
technical specifications, but not to ‘‘reduce the level of radiological effluent control.’’See Generic Letter 89-01 at 1.
Numerous details do not warrant inclusion in the technical specifications, the letter explains, because they already
would be addressed and covered by programmatic controls in the technical specifications. These programmatic
controls constitute extensive overall parameters and limitations on gaseous and liquid effluent releases.See, e.g.,
Technical Specifications 6.20 for Unit 2. Many requirements found in the programmatic controls indeed add to or
otherwise exceed those found in our regulations. The Petitioners, we note, have not raised any claim challenging the
adequacy of the programmatic technical specifications.
354
include and maintain technical specifications governingthe release of radioactive
materials during normal operations so as to assure that any releases not only
comply with section 20.1301, but also with the obligation to keep releases as
low as is reasonably achievable.See 10 C.F.R. §50.36a(a). In addition, each
licensee is required to submit a report to the Commission annually that specifies
the quantity of principal radionuclides released to the unrestricted areas in liquid
and gaseous effluents during the previous 12 months.Id.§50.36a(a)(2). This
report is a public document.See 10 C.F.R. §2.790.
In short, by transferring procedural details out of the technical specifications,
the licensee in the future may make adjustments to particular effluent monitoring
procedureswithout a license amendment. But all public dose limits for liquid and
gaseous effluent continue unchanged. Thus, licensees are not free to make any
adjustment in monitoring procedures that reasonably could lead to a violation of
radiological effluent limits or related surveillance requirements.
As a routinematter, the NRC Staff checks the adequacyof proceduresoutlined
in a licensee’s REMODCM, and also verifies whether the listed procedures have
been followed. In addition, the NRC Staff may examine a licensee’s calculation
of monitor ‘‘setpoints.’’ Setpoints establish the level of radioactivity at which a
monitor will sound an alarm or at which an effluent release will be terminated.
Before the Licensing Board, there seemingly was much confusion over setpoints.
See Transcript at 101-06. Closely read, however, the transcript indicates that the
license amendments at issue here do not affect the Licensee’s ability to adjust a
monitor’s setpoint.See id.at 104-05. None of the technical specifications being
transferred to the REMODCM specifies particular setpoints.
6
It is possible that a licensee may calculate an inappropriate setpoint for a
particular batch release, but that was also true prior to the contested license
amendments. Even before these license amendments the Licensee already had
the authority to adjust monitor setpoints as needed. The license amendments give
the Licensee no greater authority or flexibility to adjust setpoints.
6 Setpoints typically are calculated and vary release-by-release. Thus,by their nature, they are generally unsuitable
for fixing in technical specifications. Licensees need the flexibility to adjust monitor setpoints to account for
variations in background radiation, and differences in the types and quantities of radioactive materials among
separate batches of effluent. Setpoint calculations are based upon administrative and regulatory dose limits, and take
into account both radioactive effluent releases to date and projected dose contributions. Typical effluent releases
constitute merely a very small fraction of regulatory dose limits. Licensees establish these low setpoints to conform
with ALARA obligations under Appendix I to Part 50.See generally NRC Regulatory Guide 1.21, ‘‘Measuring,
Evaluating, and Reporting Radioactivity in Solid Wastes and Releases of Radioactive Materials in Liquid and
Gaseous Effluents from Light-Water-Cooled Nuclear Power Plants,’’ Rev. 1 (June 1974) (referencing American
National Standards Institute (ANSI) standard 13.10). In addition, all monitors will also have an absolute high alarm
setpoint consistent with the 10 C.F.R. Part 20 public dose limit of 100 millirem.
355
3. The Petitioners and Their Contention
Connecticut Coalition Against Millstone (CCAM) and the STAR Foundation
jointly petitioned for a hearing on the Millstone license amendment. CCAM,
based in Mystic, Connecticut, is an organization that ‘‘advocate[s] for safe and
renewable energy sources and environmentalprotection.’’See Amended Petition
(Oct. 27, 2000) at 2. According to the intervention petition, several members of
the organization reside within 5 miles of the Millstone facility. The organization
attached the affidavit of Joseph H. Besade, who affirms that his home is within
2 miles of Millstone. The STAR Foundation is a nonprofit organization based in
East Hampton, New York. The petition states that the foundation’s membership
includes families that own property and reside within the Millstone 10-mile
emergency evacuation zone.
The Petitioners claim that because of the license amendments their members
‘‘will suffer increased risk of hazard from radiological releases from Millstone
Units 2 and 3 and consequent adverse health effects with no opportunity
for comment or objection.’’See id.at 2. Their sole contention states that
‘‘‘relocating’ the selected radiological effluent Technical Specifications and the
associated Bases to the Millstone Radiological Effluent Monitoring and Offsite
Dose Calculation manual will deprive the public, and [the Petitioners] of notice
of proposed changes to the Millstone radiological liquid and gaseous effluent
monitoring instrumentation.’’Id.at 3. The Petitioners say that the contested
amendments eliminate the opportunity for a hearing ‘‘to comment and object
to changes’’ — changes that, the contention alleges, ‘‘can only be projected to
lower standards of radiologicaleffluent monitoring in the era of deregulation and
electric restructuring.’’Id.The Petitioners argue that the license amendments
create a greater risk of radiation exposures to the public:
[A]s there will be no opportunity for hearing or public comment, the public will be exposed to
greater risk of radiation doses from the routine operations of the Millstone nuclear reactors if
NNECO obtains the amendment requested. The Petitioners are prepared to establish through
expert testimony that any increase in routine radiological effluent to the air and water by the
Millstone nuclear reactors will expose the public to greater risk of cancer, immunodeficiency
diseases and other adverse health effects.
Id.at 4.
4. The Licensing Board’s Decision
To intervene in an NRC licensing proceeding, a prospective intervenor must
allege sufficient ‘‘interest’’ in the proposed licensing action, and describe ‘‘how
that interest may be affected by the results of the proceeding.’’See 10 C.F.R.
356
§2.714(a)(2). In other words, the petitioner must have ‘‘standing’’ to intervene.
7
In addition, a petitioner for intervention must proffer at least one admissible
contention for litigation. 10 C.F.R. §2.714(b). Both the Licensee and the NRC
Staff opposed the intervention petition here on two grounds: lack of standing and
failure to submit an admissible contention.
The Licensing Board’s 2-1 decision held that the Petitioners had not submitted
an admissible contention. Finding no contention, the majority never reached the
question of the Petitioners’ standing to intervene. In rejecting the contention, the
majority emphasized that the Petitioners had failed to articulate any substantive
reason why the radiological effluent procedural details needed to remain in the
technical specifications. If these items do not need to be located in the technical
specifications, the majority reasoned, then the Petitioners are not entitled as a
matterofrighttofuturenoticeandopportunityforhearingonallpotentialchanges
to the low-level radiological effluent monitoring program at Millstone:
The petitioners’ contention . . . makes no claim that there is a statutory or regulatory
requirement that the procedural details and associated bases of the Millstone RETS must
remain as specific terms of the Millstone operating licenses. Such a claim is an indispensable
element of any contention challenging the relocation of material from a plant’s technical
specifications to a licensee-controlled document because there can only be a right to a hearing
on future changes to such material if there is a statutory or regulatory requirement that such
matters be included in the plant’s technical specifications in the first place.
LBP-01-10, 53 NRC at 282 (emphasis added). ‘‘[T]here is no general right to a
hearing for a hearing’s sake,’’ the majority stressed.Id.Petitioners only have a
‘‘right’’to a hearing on futurechangesto radiologicaleffluentproceduresif these
procedures are required, by statute or regulation, to be included in the technical
specifications, the majority found.See id.In the majority’s view, the Petitioners’
contention did not adequately specify why these effluent procedures needed to
remain in the technical specifications.
Disagreeing with the majority, a lengthy dissenting opinion found that the
Petitioners had in fact provided a sufficient — albeit ‘‘minimal’’ — argument on
the need to maintain radiological effluent procedures in the Millstone technical
specifications.See generally 53 NRC at 300-13. The dissent also evaluated
the Petitioners’ standing and concluded that Petitioner CCAM had demonstrated
standing on behalf of its members.
8
7 For standing, a petitioner must allege (1) aparticularized ‘‘injury in fact’’ (2) that is fairly traceable to the action
being challenged and (3) likely to be redressed by a favorable decision.Quivira Mining Co.(Ambrosia LakeFacility,
Grants, New Mexico), CLI-98-11, 48 NRC 1, 5-6 (1998);see Steel Co. v. Citizens for a Better Environment,523
U.S. 83 (1998).
8 In a footnote, the dissent noted that Petitioner STAR had been late in submitting an affidavit by one of its
members and that ‘‘no good cause’’ had been shown for the late filing. The dissent indicated that it would, therefore,
be inclined to rule against the admission of STAR if this proceeding continued further.See53 NRC at 296 n.14.
357
OnappealtotheCommission,thePetitionersarguethattheircontentionshould
have been admitted. The NRC Staff and DNC support the Board’s decision. We
affirm, on the grounds we provide below.
III. ANALYSIS
Belowwefirstreviewourrequirementsandstandardsforadmittingcontentions
into our proceedings. We then address the admissibility of the Petitioners’
contention in this case.
1. Contention Standards
To be admissible, a contention must specify the particular issue of law or fact
the petitioner is raising, and contain: (1) a brief explanation of the bases of the
contention; and (2) a concise statement of the alleged facts or expert opinion
that support the contention and upon which the petitioner will rely in proving the
contention at the hearing.See 10 C.F.R. §2.714(b)(2). The contention should
refer to those specific documentsor other sources of which the petitioner is aware
and upon which he intends to rely in establishing the validity of the contention.
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49
NRC 328, 333 (1999) (quotations and citations omitted).
Additionally, a contention must show that a ‘‘genuine dispute’’ exists with
the applicant on a material issue of law or fact. 10 C.F.R. §2.714(b)(2)(iii).
The intervenor must do more than submit ‘‘bald or conclusory allegation[s]’’ of
a dispute with the applicant.See Final Rule, ‘‘Rules of Practice for Domestic
Licensing Proceedings — Procedural Changes in the Hearing Process,’’ 54 Fed.
Reg. 33,168, 33,171 (Aug. 11, 1989). He or she must ‘‘read the pertinent
portions of the license application, including the Safety Analysis Report and the
EnvironmentalReport, state the applicant’sposition andthe petitioner’sopposing
view.’’Id.at 33,170.
Our contention rule is strict by design. The Commission toughened it in 1989
because in prior years ‘‘licensing boards had admitted and litigated numerous
contentions that appeared to be based on little more than speculation.’’Oconee,
49NRCat 334. ‘‘Admittedintervenorsoftenhadnegligibleknowledgeofnuclear
powerissuesand,infact,nodirectcasetopresent,butinsteadattemptedtounearth
a case through cross-examination.’’Id.(citing Proposed Rule, Contentions, 51
Fed. Reg. 24,365, 24,366 (July 3, 1986)). Serious hearing delays — of months
or years — occurred, as licensing boards admitted and then sifted through poorly
defined or supported contentions.See Oconee,49 NRC at 334. Congress thus
called upon the Commission to make ‘‘fundamental changes’’ in the public
hearing process.Id.(citing H.R. Rep. No.97-177, at 151 (1981).
358
The Commission responded with the 1989 contention rule revisions, which
insist uponsome ‘‘reasonablyspecific factualand legal’’ basis for the contention.
See Oconee,49 NRC at 334;see also Final Rule, 54 Fed. Reg. at 33,171. Under
the rule, presiding officers may not admit open-ended or ill-defined contentions
lacking in specificity or basis.See 10 C.F.R. §2.714(b);see generally Final Rule,
54 Fed. Reg. 33,168. Petitioners ‘‘must articulate at the outset the specific issues
they wish to litigate as a prerequisite to gaining formal admission as parties.’’
Oconee,49 NRC at 388.See also StatementofPolicy on ConductofAdjudicatory
Proceedings,CLI-98-12, 48 NRC 18, 22 (1998).
2. Arguments on Appeal
We turn now to the Petitioners’ claims on appeal. Because the contested
license amendments themselves make no change in any monitoring procedures,
the Petitioners rely here, as they did before the Licensing Board, on their loss
of future opportunities to challenge — by adjudicatory intervention — licensee-
initiated changes in low-level effluent monitoring details.See ‘‘Connecticut
Coalition Against Millstone and STAR Foundation Petition for Review of LBP-
01-10 (Apr. 9, 2001)(Appeal Brief) at 4. The Petitioners suggest that without full
public participation effluent monitoring ‘‘may become unduly lax’’ and ‘‘fail[]
to pick up [a] release.’’Id.at 7. Thus, allegedly there could be ‘‘a relatively
minor accidental or other failure of equipment,accompaniedby a failure to detect
and correct as quickly the increased release.’’Id.at 8 (quoting Dissent, 53 NRC
at 296).
The Petitioners’ claims, however, amount to no more than a speculative chain
of events leading to potential injury; i.e., if the license amendments issue, then
hearing opportunities will diminish, lax monitoring will ensue, and the risk of
avoidable radiation releases will increase. What the contention lacks, however,
is the necessary minimal factual or legal basis for believing that removal of
the technical specifications at issue here would significantly increase the public
health and safety risk. While it is debatable whether the Petitioners’ allegations
of lost hearing opportunities suffice for standing to intervene, an issue we do
not decide, the allegations surely fall short of an admissible contention, for they
fail to offer any specific explanation, factual or legal, for why the consequences
they fear will occur if these particular technical specifications are transferred to
the REMODCM. Indeed, the Petitioners’ pleadings evince little familiarity with
the actual technical specifications at issue here, or, for that matter, with nuclear
power plant effluent monitoring practices and requirements generally.
In short, in seeking to maintain low-level effluent monitoring procedures in
the Millstone technical specifications, the Petitioners may not simply complain
generally of lost hearing opportunities causing future safety risks. An admissible
contention must explain, with specificity, particular safety or legal reasons
359
requiring rejection of the contested license amendments. As the Board majority
emphasized, ‘‘there is no general right to a hearing for a hearing’s sake.’’ 53
NRC at 282. The Petitioners do not have a ‘‘right’’to intervene in possible future
changes to effluent monitoring details if no safety or legal reason compels their
retention in the Millstone license.
The Petitioners have not provided the necessary minimal factual or legal basis
to suggest that either (a) the effluent monitoring procedures at issue are of such
safety significance that technical specifications must continue to include them,
or (b) that this Licensee in particular — because, for example, of particular
license conditionsor deficiencies in its effluentmonitoring program— should be
required to retain the effluent procedures in its license. We address these points
in detail below.
a. Effluent Monitoring Procedures and the Technical Specifications
It is certainly the case that almost every item originally contained in technical
specifications has some conceivable connection to safety. It follows, then, that
for every Generic Letter the NRC has issued to licensees recommending that a
particularset ofspecificationsberelocatedto a licensee-controlleddocument,one
could make a theoretical argument that safety might be diminished because these
items in the futurecould be changed without the additionaloversight and controls
provided by a license amendment. But this general premise is insufficient, by
itself, as a ground for intervention.
Simply because a set of procedural items was commonly inserted in technical
specificationsin the past does not mean that they must remain there. There is ‘‘no
statutory or regulatory requirement that every operational detail . . . be subject
to a technical specification.’’Perry,44 NRC at 328. Not all licensee actions or
changes in procedures must carry with them an opportunity for public hearing.
See generally id.at 326-29. The Petitioners’ theory essentially means that no
item couldeverbe transferredfromthe technicalspecificationsbecauseonecould
always argue that there is a potential, however remote, of a greater possibility of
injury if the item in the future can be changed without a full license amendment.
This extreme view would undercut the Commission’s entire technical
specifications improvement program — which we describe in some detail above.
Our agency has already determined, as a policy matter, that many requirements
originally contained in technical specifications can and should be transferred to
licensee-controlled documents. Leaner technical specifications, the Commission
believes, more effectively ‘‘focus licensee and plant operator attention on those
plant conditions most important to safety.’’See Policy Statement, 58 Fed.
Reg. at 39,135. Indeed, the former licensee practice of including all manner of
Commission requirements in the technical specifications noticeably ‘‘resulted in
360
anadverse...impactonsafety’’bydivertingNRCStaffandLicenseeattention
from the more important requirements.See Final Rule, 60 Fed. Reg. at 36,957.
Technical specifications, therefore, should be reserved for those reactor
operation‘‘conditionsorlimitations...necessary to obviate the possibility
of an abnormal situation or event giving rise to an immediate threat to the public
health and safety.’’Id.(citing Portland General Electric Co.(Trojan Nuclear
Plant), ALAB-531, 9 NRC 263 (1979). A Commission rule, 10 C.F.R. §50.36,
delineates the kinds of requirements that are of ‘‘such controlling importance to
safety’’ that they must remain in the technical specifications.
9 When the Staff
determinesundersection 50.36thatparticular requirementscan be transferredout
of the technical specifications, it is not deciding that these items have no safety
significance whatsoever, but only that they do not fall among those limits and
parameters most immediately significant for the protection of public health and
safety. Thus, they can be adequatelyfollowed, monitored,and enforcedby means
of licensee-controlled documents. By reducing the total number of technical
specifications, the Commission’s policy also aims to reduce license amendment
requests and thereby avoid unnecessarily taxing the resources of the NRC and
licensees, while at the same time assuring that technical specifications focus on
the most safety-critical features, posing the greatest immediate threats to public
health and safety.
This license amendment proceeding offers the Petitioners the opportunity to
come forward and state why the nature of these effluent procedures at issue here
is such that they should not be removed from the technical specifications. The
Petitioners have not done so. Nowhere, for instance, in either their amended
petition or their appeal brief do the Petitioners even refer to the section 50.36
criteria that govern which technical specifications must be retained and which
can be relocated to licensee-controlled documents. The license application, in
some detail, applies these criteria to the proposed changes to conclude that the
procedural details relocated by these license amendments can be taken out of
the technical specifications. The Petitioners do not even attempt to rebut the
licensee’s analyses. Our contention-pleadingrule, however, calls on intervention
petitioners to ‘‘include references to the specific portions of the application . . .
that the petitioner disputes and the supporting reasons for each dispute.’’See 10
C.F.R. §2.714(b)(2)(iii).
It is true, as the dissent below and the Petitioners point out, that the contention
rule does not require ‘‘a specific allegation or citation of a regulatory violation.’’
See Appeal Brief at 6 (referencing dissent). Thus, contrary to what the Board
majority implied (53 NRC at 282-83), the Petitioners had no legal obligation to
cite or discuss section 50.36 or any other substantive rule. But the Petitioners
9 Additional requirements for technical specifications on effluents are found in 10 C.F.R. §50.36a.
361
were obliged to give the ‘‘supporting reasons’’ for keeping effluent requirements
in the license.See 10 C.F.R. §2.714(b)(2)(iii). And it was the Petitioners
themselves who argued below that ‘‘the provisions that presently appear in
the technical specifications belong there.’’See Transcript at 25. It would
be reasonable to expect, therefore, that the Petitioners would address in their
briefs the agency’s section 50.36 standards for technical specifications and the
Licensee’s application of them.See id.
The first and only time the Petitioners mentioned section 50.36 was during a
telephone prehearing conference when, in response to questioning, Petitioners’
counselsimplysaid: ‘‘[w]edoarguethatthesetechnicalspecificationsbelongand
shouldremaininthe license. . .specifically10C.F.R. §50.36,doesseemto speak
directlytothis.’’Id.at26. Petitioners’counselwentonto suggestthatspecifically
10 C.F.R. §50.36(c)(1)(ii)(A), involving ‘‘safety system settings,’’ prohibits the
removal of the effluent monitoring procedures from the technical specifications.
She further stated that this argument was ‘‘implicit’’ in the Petitioners’ amended
petition.Id.at 56.
The Board’s majority decision rejects the notion that the intervention petition
implicitly included a section 50.36 claim. We agree. The amended petition
contains not the slightest reference to any particular item in section 50.36, and
certainlynomentionofsection50.36(c)(1)(ii)(A),oranyrequirementsorlanguage
associated with that rule. Moreover, the majority found section 50.36(c)(1)(ii)(A)
entirely inapplicable to the effluent monitoring at issue in this proceeding. The
Petitioners do not contest this finding on appeal, and indeed apparently have
dropped altogether any section 50.36-related argument. The appeal does not
mention section 50.36, or even any of the considerations that govern whether a
matter should be included in the technical specifications.
That leaves the Petitioners without any apparent foundationfor their challenge
to removal of the contested technical specifications from the Millstone license.
Yet, as we have stressed, a contention alleging that an application is deficient
mustidentify‘‘eachfailureandthesupportingreasonsforthepetitioner’sbelief.’’
10 C.F.R. §2.714(b)(2)(iii).Full adjudicatoryhearings should be ‘‘triggeredonly
by those able to proffer at least some minimal factual and legal foundation in
support of their contentions.’’Oconee,49 NRC at 334.
10 The Petitioners’ general
10Of some note is a similar proceeding,Perry,44 NRC 315, which also involved the transfer of specific items —
the material specimenwithdrawal schedule— from thetechnical specificationsto a licensee-controlled document. In
that case, though, any future changes to the withdrawal schedule would continue to require prior Staff approval. The
petitioners in Perrytherefore claimed that this prior Staff approval process was equivalent to the license amendment
process, and that any future changes to the withdrawal schedule would represent de facto license amendments,
requiring notice and hearing opportunities under section 189a of the Atomic Energy Act — a claim ultimately
rejected by the Commission.See Perry,CLI-96-13, 44 NRC 315 (1996). Here, the Petitioners have not argued that
future adjustments to effluent monitoring details would constitute de facto license amendments.
(Continued)
362
references to lost hearing opportunities and lax monitoring in the future do not
meet this standard.
b. Generalized Allegations About the Licensee
The Petitioners’ various efforts on appeal to overcome their failure to identify
a specific illegality or safety flaw in the license amendmentapplicationare highly
generalized and do not come close to meeting our contention rule. For instance, it
is simply not enough to allege generally that the Licensee will ‘‘lower standards
of radiological effluent monitoring’’ because we are in an ‘‘era of deregulation
and electric restructuring.’’See Appeal Brief at 4. Nor can we infer any nefarious
intent behind the Licensee’s statement that transferring effluent requirements to
the REMODCM ‘‘will reduce costs’’ by eliminating the necessity to always
obtain a license amendment for any changes.See id.at 3 (citing NNECO’s cover
letter accompanyingthe license application). Cost reductionis one of the goals of
improving technical specifications, but it is a stretch, to say the least, to conclude
without more that ‘‘[c]ost-cutting and ...ineffectiveradiationmonitoringgo
hand-in-hand.’’Id.at 8.
In addition, the contention states that the ‘‘amendment request is particularly
objectionable in light of the levels of radiological effluent released to the
environment by the Millstone reactors.’’Id.at 4. It is unclear, however,
what ‘‘levels’’ the Petitioners mean. When asked by the Board in a prehearing
conference call whether any such releases violated agency regulations, the
Petitioners’ counsel said merely that she did not know.See Transcript at
24. An affidavit submitted by the Petitioners’ expert makes similar unspecific
references to ‘‘excessive’’ releases. Our contention rule does not permit ‘‘vague,
unparticularized contentions,’’ or ‘‘notice pleading, with details to be filled in
later.’’Oconee,49 NRC at 338 (citation omitted).
Moreover,it remainsunclearwhatexactlythe Petitionerswishtolitigate. They
seemtoobjectgenerallyto any radioactivereleases,regardlessoflevelorlegality.
See, e.g.,Transcriptat 24 (emphasisadded) (‘‘thefact is that it is our positionthat
any radioactive airborne releases are cause for concern, and Mr. Mangano, who
provided a supplemental affidavit in this matter, is of the opinion that there is no
Entirely on its own, however, the dissent below intimates that future changes to effluent monitoring procedures
might ‘‘supplement[] the existing operating authority’’ of the Licensee, and thus might in effect reflect de facto
licenseamendments.See53 NRC at 308-09. The dissent’stheory doesnot revive the Petitioners’ contention. For one
thing, it is a ‘‘contention’s proponent, not the licensing board, [that] is responsible for formulating the contention and
providing the necessary information to satisfy the basis requirement for the admission of contentions.’’Statement
of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC at 22. Moreover, because the license
amendments do not in any fashion accord the Licenseeauthority to exceed current limits on radiological effluent rate
of release, concentration, or public dose, they cannot be said to ‘‘supplement’’ the Licensee’s operating authority
in a meaningful sense. Providing flexibility on how to achieve regulatory requirements is not akin to relaxing
requirements.
363
safe level of radioactive airborne release from a nuclear reactor’’). They say they
‘‘are prepared to establish through expert testimony that any increase in routine
radiological effluent to the air and water by the Millstone reactors will expose
the public to greater risk of cancer, immunodeficiencydiseases and other adverse
health effects.’’See Appeal Brief at 4. But routine permissible releases occur
virtually daily, and they do not remain at a constant level but go up and down
routinely. All such releases are small and must remain within NRC-prescribed
limits.
Regulatory limits on effluent concentrations take into account the licensee’s
need to make frequent adjustments in releases, while still imposing absolute
limits on both the rate of release and the dose to the nearest member of the
public. The license amendments at issue here have no bearing on the Licensee’s
ability to make these frequent adjustments. If the Petitioners are objecting to
all possible routine adjustments in effluent releases, then their claim amounts
to an impermissible general attack on our regulations governing public doses at
operating nuclear plants.See 10 C.F.R. §2.758. Petitioners ‘‘may not demand
an adjudicatory hearing to attack generic NRC requirements or regulations, or to
express generalized grievances about NRC policies.’’Oconee,49 NRC at 334.
Latching onto language from the dissent below, the Petitioners on appeal
suggest that their concern also is with effluents
that...wouldexceed the limits of Appendix I to 10 C.F.R. Part 50, resulting not from the sort
of major accident that would produce high-range releases but rather from some other cause,
such as a relatively minor accidental or other failure of equipment, accompanied by a failure to
detect and correct as quickly the increased release, by virtue of changed surveillance schedules
or setpoints.
Appeal Brief at 7-8,citing Dissent, 53 NRC at 296. Again, however, the
Petitioners offer no basis for associating this hypothetical risk with the transfer
of monitoring requirements from the technical specifications to the REMODCM.
Thecurrentamendments,forexample,havenothingtodowithsetpoints.See note
5,supra,and accompanying text. One might endlessly hypothesize scenarios of
potential injury at nuclear power plants, but not all such claims trigger licensing
actions and agency hearings. ‘‘[M]embers of the public cannot be allowed to
litigate before the Commission any and all issues that occur to them without
demolishing the regulatory process.’’Perry,44 NRC at 329 n.37 (citing Bellotti
v. NRC,725 F.2d 1380, 1382 (D.C. Cir. 1983)).
The Petitioners point to the Licensee’s statement that the amendments at issue
‘‘will not significantly increase the type and amounts of effluents that may be
released offsite,’’ and ‘‘will not significantly increase individual or cumulative
occupational radiation exposures.’’See Appeal Brief at 3, 6 (emphasis added).
From this the Petitioners apparently conclude that there will be increases in
exposure.Id.But the cited statements appear in a section of the license
364
amendmentapplicationdiscussingwhetherthelicenseamendmentswouldrequire
an Environmental Review. Under 10 C.F.R. §51.22, a licensee and the NRC
Staff must consider whether there will be a ‘‘significant change in the types
or significant increase in the amounts of any effluents that may be released
offsite,’’ and whether there will be a ‘‘significant increase in individual or
cumulative occupational radiation exposure.’’See 10 C.F.R. §51.22(c)(9)(ii).
Hence, the license amendment application understandably used ‘‘significance’’
terminology in addressing these specific points. We see no basis to infer from
these statements a veiled implication that the amendments will lead to increases
in radiation exposures. In any event, the NRC will receive annual reports of
effluent monitoring,see 10 C.F.R. §50.36a(a)(2), and is prepared to take action
if necessary.
The Petitioners further question whether the license amendments concern not
simply low-level effluent monitoring but also high-range monitors, which can
detectpotentialhigh-levelradiologicalreleasesfromreactoraccidents.See Appeal
Brief at 8. They rest this speculation on out-of-contextreferences to comments in
the license amendmentapplication’s coverletter, but show no familiarity with the
actual provisions of the license amendments. Comments noted by the Petitioners
apparently referred to plans to take down a high-rangemonitor used by Millstone
Unit 1, which is being decommissioned.See DNC’s Appeal Brief (4/23/01) at
3 n.6. These license amendments at issue here, however, have no bearing on
high-range accident monitors or their surveillance procedures.
Lastly, the Petitioners suggest that the Licensee cannot be trusted to follow
regulatory standards. A footnote in their appeal brief refers to ‘‘an earlier era of
flagrant cost-cutting at Millstone,’’ when ‘‘sample points were wilfully changed
in the mid-90s so that reports of chemical discharges would show only negligible
traces of pollution.’’See Appeal Brief at 8 n.17. The Petitioners say that this
‘‘led to state and federal enforcement actions and criminal penalties under the
Clean Water Act.’’Id.In addition, in their amended petition before the Licensing
Board, the Petitioners state that in 1999,Northeast Nuclear Energy Company
pled guilty in a federal district court to falsifying information to the NRC.See
Amended Petition at 3.
In some past cases, the Commission or its hearing boards have admitted
contentions based upon claims of poor licensee ‘‘character’’ or ‘‘integrity.’’ We
have always insisted, however, that ‘‘[f]or management ‘character’ to be an
appropriate issue for adjudication in a licensing proceeding, ‘there must be some
direct and obvious relationship between the character issues and the licensing
action in dispute.’’’Commonwealth Edison Co.(Zion Nuclear Power Station,
Units 1 and 2), CLI-99-4, 49 NRC 185, 189 (1999) (citation omitted). We
have, for instance, admitted ‘‘character’’-based issues in a proceeding to transfer
total operational authority and control to a new management organization, whose
particular and current high-ranking officers allegedly displayed a pattern of
365
deliberately violating safety regulations.See Georgia Power Co.(Vogtle Electric
Generating Plant, Units 1 and 2), CLI-93-16, 38 NRC 25 (1993). Similarly,
we found character allegations directly pertinent when, in a license renewal
proceeding, the allegations specifically concerned the current director of the
facility,andthecurrentorganizationalstructureofthefacility,andweresupported
by expert witnesses alleged to have knowledge of the current management.
See Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta,
Georgia), CLI-95-12, 42 NRC 111 (1995).
We have, however, placed strict limits on ‘‘management’’ and ‘‘character’’
contentions. ‘‘Allegations of management improprieties or poor ‘integrity’ . . .
must be of more than historical interest: they must relate directly to the proposed
licensingaction.’’GeorgiaTech,42NRCat120.Licenseamendmentproceedings
are not a forum ‘‘only to litigate historical allegations’’ or past events with no
direct bearing on the challenged licensing action.See Vogtle,38 NRC at 36
n.22. Here, the events leading to NNECO’s guilty plea and conviction all took
place in the mid-1990s. Importantly, the Petitioners make no effort to show how
these historicaleventshavea directbearinguponthe discretelicense amendments
now before us. The Petitioners have not, for instance, suggested that there
are any irregularities in the Millstone effluent monitoring program. Nor have
they indicated any pattern of ongoing corporate misconduct at Millstone which
reasonably could bear upon the effluent program. There simply has been no
link established between the individuals or direct management responsible for
falsifying reactor operator examination results years ago, at issue in the NNECO
conviction,andMillstone’seffluentmonitoringprogramorthemanagerscurrently
responsible for overseeing it.
On the contrary, the Petitioners acknowledge that these past events occurred
during ‘‘an earlier era’’ at Millstone.See Appeal Brief at 8 n.17. They also
acknowledge that the ownership and control of Millstone has changed. NNECO
is no longer the owner or operator of Millstone Units 2 and 3, the subject of the
current amendments. Having provided no indication that there are any current or
directly pertinent ‘‘character’’ concerns, the Petitioners state only that they ‘‘are
not prepared to allow the new owners of Millstone the benefit of a doubt with
regard to their radiation emissions.’’Id.at 9.
To accept the Petitioners’ reasoning would potentially insert management
integrity issues into virtually all license amendment proceedings at facilities
with prior violations, no matter the nature of the amendment. We cannot allow
admission of contentions premised on a general fear that a licensee cannot be
trusted to follow regulations of any kind. As a rule, reactor license amendment
applications do not ‘‘‘throw[] open an opportunity to engage in a free-ranging
inquiry into the ‘‘character’’ of the licensee.’’’Zion,49 NRC at 189 (citing
Vogtle,38 NRC at 32). When ‘‘character’’ or ‘‘integrity’’ issues are raised, we
366
expect them to be directly germane to the challenged licensing action. No such
link has been established here.
IV. CONCLUSION
For the reasons given in this Decision, the Commission affirms LBP-01-10.
IT IS SO ORDERED.
For the Commission
11
ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 5th day of December 2001.
11Commissioner McGaffigan was not present for the affirmation of this Order. If he had been present, he would
have approved it.
367
Cite as 54 NRC 368 (2001)CLI-01-25
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Nils J. Diaz
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket No. 50-213-OLA
(License Termination Plan)
CONNECTICUT YANKEE ATOMIC
POWER COMPANY
(Haddam Neck Plant) December 5, 2001
COMMISSION PROCEEDINGS: APPELLATE REVIEW
INTERLOCUTORY REVIEW STANDARDS
The Commission generally disfavors interlocutory review.See Private Fuel
Storage,L.L.C.(IndependentSpentFuel StorageInstallation), CLI-01-1,53 NRC
1, 5 (2001);Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site),
CLI-94-11, 40 NRC 55, 59 (1994).
COMMISSION PROCEEDINGS: APPELLATE REVIEW
INTERLOCUTORY REVIEW STANDARDS
NRC regulations prescribe strict criteria applied for review of a certified or
referred ruling, which is generally reserved for those cases where the ruling:
(1) Threatens the party adversely affected by it with immediate and serious irreparable
impact which, as a practical matter, could not be alleviated through a petition for review of the
presiding officer’s final decision; or,
(2) Affects the basic structure of the proceeding in a pervasive and unusual manner.
368
See 10 C.F.R. §2.786(g).See also Private Fuel Storage, L.L.C.(Independent
Spent Fuel Storage Installation), CLI-98-7, 47 NRC 307, 310 (1998).
COMMISSION PROCEEDINGS: APPELLATE REVIEW
INTERLOCUTORY REVIEW STANDARDS
A mere legal error is not enough to warrant interlocutory review because
interlocutory errors are correctable on appeal from final board decisions.See
Private FuelStorage,CLI-01-1,53NRC at5;HydroResources, Inc.(2929Coors
Road, Suite 101, Albuquerque, NM 87120), CLI-98-8, 47 NRC 314 (1998).
COMMISSION PROCEEDINGS: APPELLATE REVIEW
INTERLOCUTORY REVIEW STANDARDS: SERIOUS AND
IRREPARABLE HARM
The threat of future widespread harm to the general population of NRC
licensees (as opposed to specific serious, irreparable harm to the Petitioner) is not
a factor in interlocutory review, although it might encourage the Commission to
review the final decision.See 10 C.F.R. §2.786.
COMMISSION PROCEEDINGS: APPELLATE REVIEW
INTERLOCUTORY REVIEW STANDARDS: SERIOUS AND
IRREPARABLE HARM
That the intervenor’s claim will ultimately fail on the merits is no ground for
grantinginterlocutoryreviewto theapplicantopposingadmissionofa contention.
On the contrary, it may indicate that the applicant is not seriously harmed even if
the Board’s ruling is in error.
COMMISSION PROCEEDINGS: APPELLATE REVIEW
INTERLOCUTORY REVIEW STANDARDS: PERVASIVE EFFECT
ON THE STRUCTURE OF THE LITIGATION
Theincreasedlitigationburdencausedbytheallowanceofacontentiondoesnot
in itself constitute a ‘‘pervasiveeffect’’on the structure of the litigation.See, e.g.,
Dr.JamesE.Bauer (OrderProhibitingInvolvementinNRC-LicensedActivities),
CLI-95-3, 41 NRC 245 (1995) (refusal to eliminate certain bases of Staff charges
was nota pervasiveimpact);SacramentoMunicipalUtility District (RanchoSeco
369
Nuclear Generating Station), CLI-94-2, 39 NRC 91 (1994) (admitting additional
basis for contention did not have pervasive effect on adjudication).
COMMISSION PROCEEDINGS: APPELLATE REVIEW
INTERLOCUTORY REVIEW STANDARDS: SERIOUS AND
IRREPARABLE HARM
A mere increase in the burden of litigation does not constitute ‘‘serious and
irreparable’’ harm warranting interlocutory review.See, e.g., Sequoyah Fuels
Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-11, 40 NRC 55
(1994). ‘‘It is well established in Commission jurisprudence that the mere
commitment of resources to a hearing that may later prove to have been
unnecessarydoesnotconstitutesufficientgroundsforaninterlocutoryreviewofa
Licensing Board order.’’Id.at 61.See also Long Island Lighting Co.(Shoreham
Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 138-39 (1987);Public
Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-858, 25
NRC 17, 21-22 (1987).
COMMISSION PROCEEDINGS: APPELLATE REVIEW
INTERLOCUTORY REVIEW STANDARDS: NOVEL ISSUES THAT
WILL BENEFIT FROM EARLY REVIEW
A 1998 Commission policy statement encouraging the referral to the
Commission of ‘‘novel issues that will benefit from early review’’ was directed
at the boards, not the litigants. The Commission, however, could also accept
discretionary interlocutory review of such an issue at a party’s request in the
exercise of its inherent supervisory authority.See Statement of Policy on
Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 23 (1998), and
Consolidated Edison Co. of New York (Indian Point, Unit 2), CLI-82-15,16 NRC
27 (1982);Public Service Co. of New Hampshire (Seabrook Station, Units 1 and
2), CLI-77-8, 5 NRC 503, 516-17 (1977);United States Energy Research and
Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4
NRC 67, 75-76 (1976).
COMMISSION PROCEEDINGS: APPELLATE REVIEW
INTERLOCUTORY REVIEW STANDARDS: NOVEL ISSUES THAT
WILL BENEFIT FROM EARLY REVIEW
TheCommissionassignsconsiderableweighttotheboard’sviewofwhetherits
rulingwillbenefitfromearlyreview,becauselicensingboardshaveagreatdealof
370
discretion in managing the proceedings of cases before them.See Baltimore Gas
& Electric Co.(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-19,
48 NRC 132 (1998)
MEMORANDUM AND ORDER
Applicant Connecticut Yankee Atomic Power Company (‘‘CY’’) has asked
the Commission to review a July 9, 2001 Licensing Board decision admitting
Intervenor Citizens Awareness Network’s (‘‘CAN’s’’) Contention 6.1 in a
proceeding concerning CY’s License Termination Plan for the Haddam Neck
power reactor.
1 In this contention, CAN maintains that doses to children must
be taken into account in determining whether residual radiation doses to the
public are within regulatory limits. The Licensing Board denied CY’s motion to
reconsider or refer this issue for Commission review in a September 17, 2001
order.2
Wefindthatthequestionpresenteddoesnotmeetthestandardsforinterlocutory
appellate review and deny CY’s petition.
I. BACKGROUND
Commission regulations require that residual radiation at a decommissioned
site not exceed a total effective dose equivalent (TEDE) of 25 millirem per year
to ‘‘an average member of the critical group.’’
3 ‘‘Critical group’’ is defined as
‘‘the group of individuals reasonably expected to receive the greatest exposure
to residual radioactivity for any applicable set of circumstances.’’
4 ‘‘Individual’’
is also defined as ‘‘any human being.’’ The ‘‘critical group’’ is therefore a
hypothetical person or persons who, given the range of all reasonable potential
uses for the site, would receive the highest doses of radiation from living or
working there. This is often found to be resident farmers, because farmers would
spend the most time on the site and outdoors, and would eat food grown on the
site.
The disputed contention claims that the dose modeling calculation in CY’s
license termination plan is flawed because CY did not calculate doses to children.
The ‘‘critical group,’’ CAN argues, is an entire family who might live on the
site, rather than just the adult male members of such a family. Other admitted
1 LBP-01-21, 54 NRC 33 (2001).
2 LBP-01-25, 54 NRC 177 (2001).
3 10 C.F.R. §20.1402.4 10 C.F.R. §20.1003.
371
contentions attack CY’s assumptions concerning the habits of a resident farmer
that would affect the radiation dose received.
Although the plain language of the regulation does not restrict the terms
‘‘critical group,’’ ‘‘individual,’’ or ‘‘human being’’ to mean any specific age,
race, or gender, CY argues that the regulation incorporated the Environmental
Protection Agency’s ‘‘Reference Man’’ concept, which assumes a person is a
white male, age 20-30.
5 CY contends that the critical group at Haddam Neck
should be composed of resident farmers, as CY described them in its License
TerminationPlan, andthatthe ‘‘average’’memberis thereforeanaveragefarmer.
Doses to children are therefore irrelevant, it argues.
The Board admitted CAN’s contention that the dose modeling calculations
were flawed for various reasons, including failing to take children into account,
as well as several other contentions on site characterization, work scope, dose
calculations, and water contamination.
6 The Board revisited but did not reverse
its ruling regarding children in its September 17, 2001, order. Therefore, the
anticipated hearing on dose calculations will examine the doses to at least two
groups, resident farmers and resident children.
II. STANDARDS FOR INTERLOCUTORY REVIEW
The Commission generally disfavors interlocutory review.
7 Our regulations
prescribe strict criteria applied for review of a certified or referred ruling, which
is generally reserved for those cases where the ruling:
(1) Threatens the party adversely affected by it with immediate and serious irreparable
impact which, as a practical matter, could not be alleviated through a petition for review of the
presiding officer’s final decision; or,
(2) Affects the basic structure of the proceeding in a pervasive and unusual manner.
8
5 See Environmental Protection Agency, proposed Federal Radiation Protection Guidance for Exposure of the
General Public (‘‘FRG’’), 59 Fed. Reg. 66,414 (Dec. 23, 1994). ‘‘These dose conversion factors are appropriate
for application to any population adequately characterized by the set of values for physiological parameters . . .
collectively known as ‘Reference Man.’’’ 59 Fed. Reg. at 66,423. The FRG goes on to explain that variability
in doses due to age and gender is expected to be no more than the margin of uncertainty in the calculations, so
that ‘‘a detailed consideration of age and sex is generally not necessary.’’Id.In its Statement of Considerations
in publishing its Final Rule, ‘‘Criteria for License Termination,’’ 66 Fed. Reg. 39,058, NRC stated that it had
‘‘evaluated’’ the EPA document, as well as publications from the International Commissionon Radiation Protection
and the National Council on Radiation Protection, and found it ‘‘reasonable and appropriate to use findings of these
bodies in developing criteria for license termination to apply to its licensees.’’ 62 Fed. Reg. at 39,061. As in the
regulation itself, the Statement of Considerations does not use the term ‘‘reference man’’ in its discussion of the
critical group.See 62 Fed. Reg. at 39,067-68.
6 See LBP-01-21, 54 NRC at 105-06.
7 Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 5 (2001);
Sequoyah Fuels Corp. and General Atomics(Gore, Oklahoma Site), CLI-94-11, 40 NRC 55, 59 (1994).
8 10 C.F.R. §2.786(g).See also Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation),
CLI-98-7, 47 NRC 307, 310 (1998).
372
A mere legal error is not enough to warrant interlocutory review because
interlocutory errors are correctable on appeal from final Board decisions.
9
Although the NRC Staff supported CY’s interpretation of the regulation in the
proceedings below, the Staff opposes CY’s petition for immediate review on the
grounds that the ruling will not work serious irreparable harm to CY or affect the
basic structure of the proceeding in a pervasive and unusual manner.
CY does not address either of the alternative criteria for interlocutory review.
Instead, it urges the Commission to immediately review the Board’s ruling
because of its novelty and potentially far-reaching impact. CY argues that
the ruling requires a ‘‘site specific analysis of age distribution of population’’
in Connecticut, which potentially affects all NRC licensee sites that will be
decommissioned, makes it impossible to use the NRC’s RESRAD program
without first selecting an adult/child ratio for the site, and destroys uniformity in
dose protections.
We find these arguments unpersuasive as grounds for interlocutory review.
The claimed harms are not immediate or specific to CY. The threat of future
widespread harm to the general population of NRC licensees is not a factor in
interlocutory review, although it might encourage the Commission to review the
finaldecision.10 We also notethatthe Staff’sownanalysisshowsthatthereappear
to be no other decommissioning sites where this ruling could have an impact
before the completion of the hearing process in this case.
11 Finally, contrary to
CY’s position, the Board did not actually rule that CY must make a site-specific
analysis of the age distribution of Connecticut.
12 The information in which the
Boardseemstobeinterestedisthedosetoahypotheticalchildresidingonthesite,
not a statistical projection of how many and what ages of children will actually
reside on the site.
CY additionally argues that CAN’s claim will fail on the merits, because no
reasonable scenario would result in a hypothetical child receiving greater doses
than CY’s already conservatively constituted hypothetical farmer. But if this is
true, it is only an indication that CY is not seriously harmed, now or later, even if
the Board’s ruling is in error.
The only harm that CY might incur as a result of the Board’s ruling, if it is
wrong, will be an unnecessary production at a hearing of statistics on doses to a
hypothetical child. But the Board has already admitted several other contentions
9 See Private Fuel Storage,CLI-01-1, 53 NRC at 5;Hydro Resources, Inc.(2929 Coors Road, Suite 101,
Albuquerque, NM 87120), CLI-98-8, 47 NRC 314 (1998).
10See 10 C.F.R. §2.786.
11See Nuclear Regulatory Commission Staff Response to Petition for Directed Certification (Portion of LBP-01-
21), at 4 (Oct. 17, 2001).
12In its ruling on the motion for reconsideration, the Board noted that CY had misunderstood its earlier ruling
when CY argued that the ruling would require ‘‘site specific averages’’ of the ages of the population. LBP-01-25,
54 NRC at 181.
373
on which a hearing is anticipated. The Commission has considered and rejected
the argument that the increased litigation burden caused by the allowance of
a contention has a ‘‘pervasive effect’’ on the structure of the litigation.
13 We
have also rejected the argument that a mere increase in the burden of litigation
constitutes ‘‘serious and irreparable’’ harm.
14 In fact, it does not appear that
the information sought will necessarily broaden the scope of the hearing greatly
becausethecloselyrelatedissuesoftheextentofradioactivecontaminationonsite
and the resulting doses to a resident adult are already in dispute.
If the evidence shows, as CY claims it will, that doses to children are lower
than doses to adults, CY will prevail without the need for an appeal. But even
if the evidence shows that doses to children are higher, CY will still have the
opportunity after the Board’s final decision to argue before the Commission that
our regulations prohibit considering doses to children. Because the hearing is
anticipated to encompass both the doses to the resident farmer and to children,
it would be simple on final appeal to determine whether the license termination
plan complies with our regulations with respect to residual doses to the critical
group. Any harm to CY is therefore reparable.
In seeking interlocutoryreview, CY points to a statement in the Commission’s
1998 Statement of Policy on Conduct of Adjudicatory Proceedings,which
encouraged boards to refer to the Commission ‘‘novel issues that will benefit
from early review.’’
15 Although this statement refers to a board referral, the
Commission may also accept discretionary interlocutory review at the request of
a party in the exercise of its inherent supervisory authority where appropriate.
16
But the Commission assigns considerable weight to the board’s view of whether
the ruling merits immediate review. Licensing boards are granted a great deal
of discretion in managing the proceedings of cases before them.
17 Generally,
13See, e.g., Dr. James E. Bauer (Order Prohibiting Involvement in NRC-Licensed Activities), CLI-95-3, 41 NRC
245 (1995) (refusal to eliminate certain bases of Staff charges was not a pervasive impact);Sacramento Municipal
Utility District(Rancho Seco Nuclear Generating Station), CLI-94-2, 39 NRC 91, 94 (1994) (‘‘The basic structure of
an ongoing adjudication is not changed simply because the admission of a contention results from a licensing board
ruling that is important or novel, or may conflict with case law, policy, or Commission regulations. Similarly, the
mere fact that additional issues must be litigated does not alter the basic structure of the proceedings in a pervasive
or unusual way so as to justify interlocutory review of a licensing board decision’’ (quoting Long Island Lighting
Co.(Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 135 (1987))).14See, e.g., Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-11, 40 NRC 55 (1994).
‘‘It is well established in Commission jurisprudence that the mere commitment of resources to a hearing that may
later prove to have been unnecessary doesnot constitute sufficient grounds for an interlocutory review of a Licensing
Board order.’’Id.at 61.See also Shoreham,ALAB-861, 25 NRC at 138-39;Public Service Co. of New Hampshire
(Seabrook Station, Units 1 and 2), ALAB-858, 25 NRC 17, 21-22 (1987).15Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 23 (1998).16Consolidated Edison Co. of New York (Indian Point, Unit 2), CLI-82-15, 16 NRC 27 (1982);Public Service
Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 516-17 (1977);United States
Energy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67,
75-76 (1976).
17Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-19, 48 NRC 132
(1998).
374
the Commission has accepted ‘‘novel issues that would benefit from early
review’’ where the board, rather than a party, has found such review necessary
and helpful.
18 Here, the Board considered whether referring this ruling to the
Commission would simplify or complicate its job and concluded that immediate
review was not desirable.
In addition, it is not clear that the ‘‘critical group’’ issue is suitable for early
Commission review. Proper resolution of this issue may turn on both the factual
issue of what dose the individual is reasonably expected to receive as well as the
legal issue of whether our regulation restricts the ‘‘critical group’’ to a particular
age or gender. More factual development may better inform our (or the Board’s)
ultimate decision.
Seeing no compelling argument to disagree with the Board, we find that
interlocutory review of this issue is not warranted at this time.
III. CONCLUSION
We conclude that CY’s request does not meet our standards for interlocutory
review, and we deny its petition for directed certification.
IT IS SO ORDERED.
For the Commission
19
ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 5th day of December 2001.
18See, e.g., Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-00-13, 52 NRC 23
(2000);Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-12, 53 NRC 459 (2001).
19Commissioner McGaffigan was not present for the affirmation of this Order. If he had been present, he would
have approved it.
375
Cite as 54 NRC 376 (2001)CLI-01-26
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Nils J. Diaz
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket No. 72-22-ISFSI
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) December 28, 2001
RULES OF PRACTICE: ABEYANCE OF PROCEEDING;
SUSPENSION OF PROCEEDING
In determining whether circumstances justify holding a licensing proceeding
in abeyance, we consider whether moving forward with the adjudication will
jeopardize the public health and safety, prove an obstacle to fair and efficient
decisionmaking, or prevent appropriate implementation of any pertinent rule or
policy changes that might emerge from our important ongoing evaluation of
terrorism-related policies.
RULES OF PRACTICE: ABEYANCE OF PROCEEDING;
SUSPENSION OF PROCEEDING
The Commission has an obligationto achieve expeditiousdecisionmakingand
to go forward with other regulatory and enforcement activities while terrorism-
related standardsare being reviewed. In our 1998 Statementof Policy on Conduct
of Adjudicatory Proceedings,we reaffirmed our commitment to efficient and
expeditious processing of adjudications.Statement of Policy on Conduct of
Adjudicatory Proceedings,CLI-98-12, 48 NRC 18 (1998).
376
RULES OF PRACTICE: ABEYANCE OF PROCEEDING;
SUSPENSION OF PROCEEDING
The Commission’s longstanding practice has been to limit orders delaying
proceedings to the duration and scope necessary to promote the Commission’s
dual goals of public safety and timely adjudication.
RULES OF PRACTICE: ABEYANCE OF PROCEEDING;
SUSPENSION OF PROCEEDING; TERRORISM
Because theCommissiondisfavorsholdingproceedingsin abeyancewherethe
relief is not narrowly tailored to the goal of promoting adjudicatory efficiency,
Utah’s request that the entire proceeding be suspended is overbroad. Postponing
all proceedings on the license application while standards relating to a single
safety aspect — the threat of terrorism — would not advance our goal of efficient
decisionmaking.
RULES OF PRACTICE: ABEYANCE OF PROCEEDING;
SUSPENSION OF PROCEEDING; LATE-FILED CONTENTIONS;
REOPENING RECORD
Holding an entire licensing proceeding in abeyance is not necessary to ensure
that the public will realize the full benefit of NRC’s ongoing regulatory review
at the facility in question. If a review of the terrorism threat causes the NRC to
revise its requirements concerning facility protection at an ISFSI, PFS may well
be subject to new regulations. Depending on the nature and timing of any new
regulations, Utah may have an opportunity to file late contentions or to reopen
the record.See 10 C.F.R. §§2.714(a), 2.734. Even if PFS has already received
its license, the NRC can order that the facility be backfit where it is necessary to
protect public health and safety.See 10 C.F.R. §72.62.
MEMORANDUM AND ORDER
On October 10, 2001, the State of Utah petitioned the Commission for
immediate relief suspending licensing proceedings in light of the terrorist attacks
of September 11, 2001. Utah claims that the proposed Independent Spent Fuel
Storage Installation (ISFSI) would be an attractive target for terrorists, and that
our licensing proceedings should be halted immediately while the NRC reviews
its regulations in response to the heightened terrorist threat. Both the Applicant,
Private Fuel Storage, L.L.C. (PFS), and the NRC Staff oppose the petition.
377
The State of Utah, simultaneously with this petition, asked the Board to admit
a late-filed contention concerning the risk of terrorists attacking the facility. On
December 13, 2001, the Board denied the request to admit the contention and
referred its ruling for Commission review.
1 The Commission is not acting on that
ruling in this Order.
WefindthatthereliefrequestedinUtah’spetition—immediatelystayingthese
proceedings — is not necessary or appropriate at this time. Because the facility
cannot possibly be in a position to receive spent fuel shipments for more than 2
years, there is no immediate threat that this facility can be a target for terrorists.
In the meantime, the Commission has undertaken a top-to-bottom review of its
regulations concerning physical protection of all licensed facilities and materials
to determine if any revisions should be made in light of the September 11,
2001 events. As the following discussion shows, the threat of terrorist attacks
against the proposedISFSI can and will be properlyaddressed without haltingthe
licensing adjudication.
I. BACKGROUND
A. Physical Protection Requirements for an ISFSI
The Commission sets forth its regulations on physical protection of an ISFSI
in 10 C.F.R. Parts 72 and 73. The design for physical protection must include
design features to protect the ISFSI against acts of radiological sabotage.
2 The
performanceobjectiveofthe physicalprotectionsystem for anISFSI isto provide
high assurance that licensed activities do not constitute an unreasonable risk to
publichealthandsafety.3 Specificrequirementstomeettheperformanceobjective
are substantial and include a barrier at the perimeter of the protected area and
an additional barrier offering ‘‘substantial penetration resistence,’’ as well as
continual surveillance of the perimeter of the protected area.
4
B. NRC’s Response to the Events of September 11, 2001
In response to the September 11, 2001 terrorist attacks, the Commission has
taken a number of actions to ensure the security of NRC-licensed facilities and
materials, including activation and staffing of the NRC Operations Center on a
24-hour-a-daybasis. Immediatelyfollowingthe attacks, the NRC advised nuclear
power plant licensees and fuel facilities to go to the highest level of security,
1 LBP-01-37, 54 NRC 476 (2001).
2 10 C.F.R. §72.182.
3 10 C.F.R. §73.51(b)(1).4 10 C.F.R. §73.51(d).
378
and all promptly did so. In addition, the Commission has had continuous and
close coordination with the Federal Bureau of Investigation, other intelligence
and law enforcement agencies, the Office of Homeland Security, NRC licensees,
and military, state, and local authorities. The Commission has issued security
advisories to licensees to update them on the available threat information and to
recommend additional security measures. The Commission continues to monitor
the situation, and is prepared to make any adjustments to security measures for
NRC-licensed activities as may be deemed appropriate.
The Commission believes that its response to these unsettling events has
been expeditious and that the current safeguards and physical security programs
provide for a very high level of security at NRC-licensed facilities. However, in
the aftermath of the terrorist attacks and the continuing uncertainty about future
terrorist intentions, we have commenced a thorough review of our safeguards
and physical security programs, from top to bottom, including those applicable
to independent spent fuel storage installations. The review will involve a
comprehensive examination of the programs’ basic underlying assumptions.
Historically, the NRC has drawn a distinction between requiring its licensees
to defend their facilities against sabotage and requiring them to protect against
attacks and destructive acts by enemies of the United States. Even NRC-licensed
facilities that are required to meet the most stringent security requirements
(because the potential consequences of sabotage are greatest) are not required
to protect against enemies of the United States. For example, reactor licensees
are required to protect against a prescriptive list of possible threats, referred to
collectively as the ‘‘design-basisthreat.’’
5 However, our regulationsstipulate that
power reactors are not required to be designed or to provide other measures to
counteract destructive acts by ‘‘enemiesof the United States.’’
6 The basis for this
distinction is that the national defense establishment and various agencies having
internal security functions have the responsibility to address this contingency,
and that requiring reactor design features to protect against the full range of the
modern arsenal of weapons is simply not practical.
7
The top-to-bottom review of our physical protection regulations will consider
these distinctions, which have been underlying principles of the Commission’s
regulations in this area, and apply them as appropriate. The consideration of any
adjustments to licensee, federal, state, and local response capabilities is being
conducted in consultation with the appropriate authorities.
5 10 C.F.R. §73.55, requiring protection against the design-basis threat described in section 73.1(a)(1).
6 10 C.F.R. §50.13.
7 See Licensing of Production and Utilization Facilities; Procedures for Review of Certain Nuclear Reactors
Exempted from Licensing Requirements, 32 Fed. Reg. 13,445 (Sept. 26, 1967).See also Siegel v. AEC,400 F.2d
778, 780-84 (D.C. Cir. 1968).
379
II. DISCUSSION
As described above, the Commission is in the process of reviewing its
regulations to determine if revisions should be made in response to the events of
September 11. Utah has asked that the instant licensing proceeding be stopped
untilapplicablelawsandregulationscanbebroughtinto‘‘conformitywithpresent
realities.’’8 It assertsthatwe haveauthorityto do this underourgeneralobligation
to ensure that all licensing decisions protect public health and safety. We find,
however, that holding the PFS proceeding in abeyance is not warranted. In
two other cases decided today, we similarly decide against postponing licensing
proceedings to await ongoing review of the agency’s terrorism-related policies.
9
In all three cases, we consider whether moving forward with the adjudication
will jeopardize the public health and safety, prove an obstacle to fair and efficient
decisionmaking, or prevent appropriate implementation of any pertinent rule or
policy changes that might emerge from our important ongoing evaluation of
terrorism-related policies. None of these considerations, in our view, justifies
postponing Licensing Board proceedings in the three cases we consider today,
including this one.
A. The PFS Facility Poses No Immediate Threat to Public Safety
There is no immediate threat that the PFS facility will become a target for
terrorists because no spent nuclear fuel will be located on the site of the proposed
facility for at least 2 years. Many issues remain to be litigated in the ongoing
proceedings. According to the most recent schedule issued by the Board, the
earliest it could issue its initial decision is September 2002. Even if that decision
is favorable to the Applicant, the Commission itself must authorize issuance of
the license.
10 The Commission could hold up the license at that time if a revision
to the regulations is imminent. In addition, according to PFS, construction of the
facility after a license is issued would take more than 1 year. Therefore, even if
the licensing, construction, and shipping processes all go forward without further
delay, the first storage casks would not arrive on the site for more than 2 years.
11
8 State of Utah’s Petition for Immediate Relief Suspending Licensing Proceedings (Oct. 10, 2001), at 2.
9 See Duke Energy Corp.(McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2),
CLI-01-27, 54 NRC 385 (2001);Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication
Facility), CLI-01-28, 54 NRC 393 (2001).
1010 C.F.R. §2.764(c).
11According to the NRC Staff’s estimates, ‘‘mid-2004’’ would be the earliest that the facility could actually
receive spent fuel.See ‘‘NRC Staff’s Response to the State of Utah’s Petition for Immediate Relief Suspending
Licensing Proceedings’’ (Oct. 25, 2001), at 4 n.8.
380
A site that currently contains no radiological materials and will not for at
least 2 years cannot present an immediate threat to public safety. Therefore, this
consideration does not warrant a halt to the current proceeding.
B. Adjudication of Other Issues Must Proceed in a Fair and
Efficient Manner
We also find that it is both in the interest of the public and in the interest of
fairness to the parties that all the issues raised by this adjudication be resolved
efficiently.
1. Commission’s Obligation To Achieve Expeditious Decisionmaking
The Commission has a responsibility to go forward with other regulatory and
enforcementactivities even while terrorism-relatedstandards are being reviewed.
In our 1998 Statement of Policy on Conduct of Adjudicatory Proceedings,
we reaffirmed our commitment to efficient and expeditious processing of
adjudications.12 Our hearing policies seek to ‘‘instill discipline in the hearing
processand ensure a promptyet fair resolutionof contested issues in adjudicatory
proceedings.’’13 This is in keeping with the Administrative Procedure Act’s
directivethatagenciesshouldcompletehearingsandreachafinaldecision‘‘within
a reasonable time.’’
14 While the agency’s top-to-bottom review is pending, there
are numerous safety and environmental issues that must be resolved in this
adjudication, many with no conceivable connection to terrorism. Under these
circumstances, we see no basis for freezing the ongoing licensing proceeding.
2. Commission Narrowly Tailors Delay Orders
The Commission’s longstanding practice has been to limit orders delaying
proceedings to the duration and scope necessary to promote the Commission’s
dual goals of public safety and timely adjudication.
The Commission’s response to the serious accident at Three Mile Island,
Unit 2, on March 28, 1979, illustrates this approach. Immediately after the
accident, the Commission chose not to halt ongoing licensing proceedings,
15 but
instead temporarily stopped issuing licenses for any new facilities pending its
12Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18 (1998).
13Id.at 19.
14See 5 U.S.C. §558(c).
15See, e.g., Pacific Gas and Electric Co.(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17
NRC 777 (1983).
381
assessment of the accident.
16 Later, the Commission issued a Statement of Policy
announcing that pending consideration of changes in safety requirements and
procedures, the Commission itself would decide whether to grant final approval
for new construction permits, limited work authorizations, or operating licenses
for reactors.
17 All other adjudicatory proceedings, including enforcement and
license amendment proceedings, were allowed to continue.
18 The agency also
rejected a petition claiming that the TMI-2 incident required that all similar
operating reactors be immediately shut down.
19
Morerecently,inadecisioninthe HydroResources proceeding,weoverturned
a Board order holding portions of the proceeding in abeyance indefinitely.
20
There, petitioners challenged an already-issued license on environmental and
environmental justice grounds. The license authorized the licensee, Hydro
Resources,Inc.(HRI),toconductinsitu leachminingatfoursitesinNewMexico,
but provided that HRI would begin operations at one site and could not move
on to the next site until it had conducted an acceptable groundwater restoration
demonstration at the first. The Board ordered all proceedings concerning mining
effects at sites other than the first to be held in abeyance until such time as HRI
decided it wanted to mine the other sites. The Commission reversed the Board’s
order, rejecting the argument that environmental effects of mining the remaining
sites would not be ‘‘ripe’’ for adjudication unless and until HRI decided to mine
them. The Commission found that the Board’s decision both violated principles
of expeditious case management and imposed an unacceptable burden on the
petitioners by forcing them to wait indefinitely to be heard.
In a similar vein, the Commission has declined to stay proceedings in license
transfer cases where parallel proceedings in another forum might moot the
transaction.21 Because the sale of a power plant requires the approval of a
variety of authorities, including the state utilities regulators, the Federal Energy
Regulatory Commission, the Securities and Exchange Commission, and the
Internal Revenue Service, the whole transaction could fall through if a single
16This temporary pause in licensing was initiated by an unpublished order dated June 5, 1979. A discussion of the
Commission’s actions following the TMI-2 accident is included in Diablo Canyon,17 NRC at 784-85.
17See Interim Statement of Policy and Procedure, 44 Fed. Reg. 58,559 (Oct. 10, 1979).
18Id.
19See, e.g., Petition To Suspend All Operating Licenses for Pressurized Water Reactors,DD-81-8, 13 NRC
767 (1981). This petitioner wanted licenses for all pressurized water reactors suspended or revoked, contending
the licenses were invalid because TMI-2 events proved that analyses used to predict the reactors’ emergency core
cooling systems’ performance did not meet the requirements of 10 C.F.R. §50.46.20Hydro Resources, Inc.(P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 34-35 (2001).
21See, e.g., Niagara Mohawk Power Corp.(Nine Mile Point Nuclear Station, Units 1 and 2), CLI-99-30, 50
NRC 333 (1999) (stay granted while co-owners decided whether to exercise right of first refusal but denied while
New York Public Utility Commission proceedings pending);see also Consolidated Edison Co. of New York (Indian
Point, Units 1 and 2), CLI-01-8, 53 NRC 225 (2001) (denied request to suspend proceedings on transfer of Units 1
and 2 until after completion of Commission proceeding related to transfer of Indian Point Unit 3);Vermont Yankee
Nuclear Power Corp.(Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 173-74 (2000) (refusing
to suspend license transfer proceedings until Commission examines effects of industry consolidation).
382
authority withholds its approval. If each agency took turns reviewing a single
transfer, however, the whole process would be prolonged by years. By necessity,
therefore,theCommissionhasfoundthat themerepossibilitythatourproceedings
will be mooted by another agency’s decision is not sufficient reason to postpone
reviewing the application before us.
TheCommissionwillpostponeadjudicatorymattersintheunusualcaseswhere
moving forward would clearly amount to a waste of resources. For example,
in a San Onofre licensing proceeding, the Appeal Board delayed reviewing
the Licensing Board’s initial decision because California authorities had already
issuedarulingblockingconstructionofthefacility.22TheAppealBoardfoundthat
unless the California authorities either reversedtheir decision or were reversedby
a state court, NRC review would simply be futile.
AlthoughtheCommissionultimatelymightchangesome regulationsregarding
protections from attacks or sabotage, we do not find that the instant proceeding
presentsasituationsimilartothatin SanOnofrewheredelaywouldbeappropriate.
As noted in Section II.A above, there are many issues unrelated to terrorism that
remain to be decided in this litigation.
Moreover, the Commission disfavors holding proceedings in abeyance where
the reliefis notnarrowlytailoredto thegoalof promotingadjudicatoryefficiency.
Utah, however, has asked that the entire proceeding be suspended. We think it
clear that postponing all further proceedings on the PFS ISFSI application would
not advance our goal of efficient decisionmaking.
C. Proceedings Will Not Thwart Regulatory Review
Uncertainty as to the possible outcome of our regulatory review is another
factorthat leadsustobelievethatsuspendingthisproceedingisnotanappropriate
course of action. Utah has asked that the proceedings be stayed until Congress
and the Commission have acted to revise the law and applicable regulations as
necessary with respect to the increased threat of domestic terrorism. But we find
that holding up these proceedings is not necessary to ensure that the public will
realize the full benefit of our ongoing regulatory review at the PFS facility.
If a review of the terrorism threat causes the NRC to revise its requirements
concerning facility protection at an ISFSI, PFS may well be subject to new
regulations.23 Depending on the nature and timing of any new regulations, Utah
may have an opportunity to file late contentions or to reopen the record.
24 Even if
22See Southern California Edison Co.(San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-171, 7
AEC 37, 39 (1974).
23We note that PFS bears the risk that a potential change in the governing law and regulations will force it to
revise its security plan or the physical design of the facility and possibly to relitigate some issues. PFS’s willingness
to bear this risk of regulatory uncertainty plays a part in our decision not to delay the proceedings at this time.24See 10 C.F.R. §§2.714(a), 2.734.
383
PFS has already receivedits license, the NRC can orderthat the facility be backfit
where it is necessary to protect public health and safety.
25
III. CONCLUSION
Because moving forward with this proceeding would neither present a threat
to public safety nor interfere with our ongoing regulatory review, and halting it
would interfere with our goal of adjudicatory efficiency, we decline to suspend
the proceeding. Utah’s petition is therefore denied.
IT IS SO ORDERED.
For the Commission
26
ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 28th day of December 2001.
2510 C.F.R. §72.62.
26Commissioner Diaz was not present for the affirmation of this Order. If he had been present, he would have
approved it.
384
Cite as 54 NRC 385 (2001)CLI-01-27
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Nils J. Diaz
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket Nos. 50-369-LR
50-370-LR
50-413-LR
50-414-LR
(consolidated)
DUKE ENERGY CORPORATION
(McGuire Nuclear Station, Units 1 and 2;
Catawba Nuclear Station, Units 1
and 2) December 28, 2001
The Commission denies a petition by the Blue Ridge Environmental Defense
League (‘‘BREDL’’) to dismiss, as legally invalid, Duke Energy Corporation’s
(‘‘Duke’’) application to renew four power reactor operating licenses. The
CommissionalsodeniesBREDL’s petitiontoholdthelicenserenewalproceeding
in abeyance to await the conclusionof the Commission’s ongoingcomprehensive
review of the NRC’s terrorism-related rules and policies. The Commission sees
no basis for terminating or postponing our license renewal process. The license
renewal process will address many issues entirely unconnected to terrorism, will
result in no immediate licensing action, and will cause BREDL no injury other
than litigation costs. BREDL’s legal challenges to Duke Energy’sapplication can
be considered during the license renewal adjudication.
385
RULES OF PRACTICE: ABEYANCE OF PROCEEDING;
SUSPENSION OF PROCEEDING
In determining whether to hold a proceeding in abeyance, the Commission
considers ‘‘whether moving forward with the adjudication will jeopardize the
public health and safety, prove an obstacle to fair and efficient decisionmaking,
or prevent appropriate implementation of any pertinent rule or policy changes
that might emerge from our important ongoing evaluation of terrorism-related
policies.’’See Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage
Installation), CLI-01-26, 54 NRC 376, 380 (2001).
Where a license renewal proceeding has just begun and is not near a final
decision, and where the requested license renewals, if granted, will nottake effect
for at least another20 years, the Commission sees no risk of any immediate threat
to the public health and safety justifying abeyance.
‘‘[T]he Commission historically has been reluctant to suspend pending
adjudicationsto await developmentsin other . . . proceedings.’’See Consolidated
Edison Co. of New York (Indian Point, Units 1 and 2), CLI-01-8, 53 NRC
225, 229 (2001) (declining to suspend a license transfer adjudication pending
completion of a similar NRC adjudication involving another nuclear plant at
thesamelocation).See also Niagara Mohawk Power Corp.(Nine Mile Point
Nuclear Station, Units 1 and 2), CLI-99-30, 50 NRC 333, 343 (1999) (declining
to suspend a license transfer adjudication pending conclusion of a New York
Public Service Commission proceeding). For example, the Commission did not
hold adjudications in abeyance pending the results of an ongoing reexamination
of our rules in the aftermath of the Three Mile Island accident.See Interim
Statement of Policy and Procedure, 44 Fed. Reg. 58,559 (Oct. 10, 1979) (in
the aftermath of the 1979 TMI accident, the Commission (1) initiated internal
reviewstosee whethernew rulesorpolicieswerenecessary,(2)allowedlicensing
boards to move their hearings forward in the meantime, (3) authorized the NRC
Staff to take litigating positions even on TMI-related issues, and (4) announced
that no actual licenses would issue, absent express Commission authorization,
during the pendency of the NRC’s ‘‘lessons learned’’ review). More recently,
the Commission was unsympathetic to a licensee’s efforts to place a portion
of its own materials license adjudication ‘‘on hold’’ pending its making certain
market-driven business decisions.See Hydro Resources, Inc.(P.O. Box 15910,
Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 39 (2001). This general
reluctance is firmly grounded in the Commission’s longstanding commitment to
efficient and expeditious decisionmaking, as reiterated in its 1998 Adjudicatory
Policy Statement (balancing the applicants’ and licensees’ interest in a prompt
decision on their applications with the intervenors’ and petitioners’ interest in an
opportunity for a hearing).See Statement of Policy on Conduct of Adjudicatory
386
Proceedings,CLI-98-12, 48 NRC 18, 24 (1998); 63 Fed. Reg. 41,872 (Aug. 5,
1998).See also Hydro Resources,CLI-01-4, 53 NRC at 38.
The Commission is unpersuaded by BREDL’s assertion that the ‘‘piecemeal’’
natureoftheadjudication‘‘makesitimpossibletoperformacompleteoreffective
evaluationoftheissues...withinthescopeofthecurrenthearing’’and‘‘is
wastefulof[thePetitioners’]resources.’’TheCommissionhasrepeatedlyrejected
such resource-related arguments in prior proceedings, and does so again here.
As the Commission stated just this March in Indian Point,CLI-01-8, 53 NRC at
229-30, ‘‘litigation inevitably results in the parties’ loss of both time and money.
We cannot postpone cases for many weeks or months simply because going
forward will prove difficult for litigants or their lawyers.’’
RULES OF PRACTICE: ABEYANCE OF PROCEEDING;
SUSPENSION OF PROCEEDING; LATE-FILED CONTENTIONS
(10 C.F.R. §2.714(a)(1)
LICENSE RENEWAL: SUSPENSION OF PROCEEDING
Terminationor postponementof license renewaladjudicationscontravenesthe
Commission’s interest in ‘‘regulatory finality’’ and ‘‘sound case management.’’
SeeHydroResources,CLI-01-4,53NRC at 40. TheCommission’sinitialorderin
the instantcase expressedourcommitmenttoexpeditiousconsiderationoflicense
renewal applications.See CLI-01-20, 54 NRC 211, 214-15, 216 (2001). License
renewal, by its very nature, contemplates a limited inquiry — i.e., the safety
and environmental consequences of an additional 20-year operating period.See
Florida Power & Light Co.(Turkey Point Nuclear Generating Plant, Units 3 and
4), CLI-01-17, 54 NRC 3, 6-13 (2001). License renewal focuses on aging issues,
not on everyday operating issues.See id.at 7, 9-10. Hence, it is far from clear
that upcoming terrorism-related changes in the Commission’s rules, if any, will
bear on license renewal reviews. But, to the extent the Commission does, during
a later stage of this adjudication, modify this agency’s safety, environmental,
or safeguards rules in a manner that affects issues material to this adjudication,
our procedural rules allow for the possibility of late-filed contentions to address
such new developments.See Yankee Atomic Electric Co.(Yankee Nuclear Power
Station), CLI-96-7,43 NRC 235, 255& n.15(1996),referringto the standardsset
forth in 10 C.F.R. §2.714(a)(1). Moreover, if the Commission’s generic review
leads to new rules applicable here, there will be time enough to apply them.
387
RULES OF PRACTICE: LICENSING BOARDS; APPELLATE
REVIEW; EVIDENCE
COMMISSION PROCEEDINGS: APPELLATE REVIEW
LICENSING BOARDS: RESPONSIBILITIES
The Commission believes it is generally preferable for the Licensing Board
to address fact-sensitive questions in the first instance, allowing the Commission
ultimately to consider them after development of a full record.
MEMORANDUM AND ORDER
Today the Commission considers a petition by the Blue Ridge Environmental
Defense League (‘‘BREDL’’) to dismiss, as legally invalid, Duke Energy
Corporation’s (‘‘Duke’’) application to renew four power reactor operating
licenses.1Inthealternative,BREDLasksusto holdthelicenserenewalproceeding
in abeyance to await the conclusion of our ongoing comprehensive review of the
NRC’s terrorism-related rules and policies. We see no basis for terminating or
postponing our license renewal process, because that process will address many
issues entirely unconnected to terrorism, will result in no immediate licensing
action,andwillcauseBREDLnoinjuryotherthanlitigationcosts. BREDL’slegal
challenges to Duke Energy’s application can be considered during the license
renewal adjudication.
I. PROCEDURAL BACKGROUND
ThisproceedingstemsfromDuke’sJune 13,2001applicationtorenewlicenses
for four nuclear power plants for an additional 20 years of operation, effective
at their licenses’ respective expiration dates. The operating licenses for Units 1
and 2 of the McGuire Nuclear Station and Units 1 and 2 of the Catawba Nuclear
Station expire in 2021, 2023, 2024, and 2026, respectively. On July 16th, this
agency published in the Federal Register a notice that it had received Duke’s
application(66Fed. Reg. 37,072)and, on August15th, a noticeof opportunityfor
hearing on the application (66 Fed. Reg. 42,893). In response to the August 15th
notice, BREDL and the Nuclear Information and Resource Service (‘‘NIRS’’)
each submitted a timely petition to intervene and request for hearing to oppose
Duke’s license renewal application. On October 4th, the Commission referred
1 Although styled a ‘‘petition,’’ BREDL’s pleading is in fact a motion.
388
those petitions and requests to the Licensing Board Panel.See CLI-01-20, 54
NRC 211 (2001).
OnOctober16th,theLicensingBoardissuedanunpublishedorderestablishing
ascheduleforthefilingofpleadings.TheBoardmodifiedthisscheduleonOctober
31st(seeLBP-01-31,54NRC242)andagainonNovember15th(see unpublished
Memorandum and Order Granting in Part Request for Additional Extension of
Time). Meanwhile, BREDL filed the instant petition, dated October 23d. Duke
and the NRC Staff each filed a response opposing the petition, while NIRS filed
a response supporting it.
II. DISCUSSION
BREDL seeks to dismiss this proceeding or, alternatively, hold it in abeyance
pending both the completion of the first 20 years of operation at Catawba Unit 1
and agency decisions on major anticipated changes in the current licensing basis,
i.e., the use of plutonium/mixedoxide (‘‘MOX’’) fuel and changes to account for
increased security threats.
2 In supportof its two requests for relief, BREDL offers
arguments relating to the risk of terrorist attacks,
3 the use of plutonium/MOX
fuel,4 and the NRC Staff’s purportedly improper grant to Duke of an exemption
from a filing requirement.
5
A. Motion To Hold Proceeding in Abeyance
Two other decisions issued today deal with requests, similar to BREDL’s, to
hold proceedings in abeyance pending the Commission’s generic consideration
of terrorism-related issues.See Private Fuel Storage, L.L.C.(Independent Spent
Fuel Storage Installation), CLI-01-26, 54 NRC 376 (2001);Duke Cogema Stone
& Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28,
54 NRC 393 (2001). Our Private Fuel Storage decision explains in detail our
general approach: ‘‘we consider whether moving forward with the adjudication
will jeopardize the public health and safety, prove an obstacle to fair and efficient
decisionmaking, or prevent appropriate implementation of any pertinent rule or
policy changes that might emerge from our important ongoing evaluation of
2 BREDL also alludes to a third possible change in the licensing basis: a decision on the facility license operator.
However, aside from a single cursory reference, BREDL does not address this third current licensing basis, nor does
BREDL explain its relevance. We therefore reject the matter as insufficiently developed.See GPU Nuclear, Inc.
(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 204 n.6 (2000).
3 See Petition at 2-3, 11-16.See also NIRS Response at 3-6.
4 See Petition at 1-2, 5-9.See also NIRS Response,passim.
5 See Petition at 2, 9-11. We have also considered several less-developed arguments raised by BREDL (see id.at
2, 18) and have concluded that they support neither dismissing this proceeding nor holding it in abeyance.
389
terrorism-related policies.’’See CLI-01-26, 54 NRC at 380. None of these
considerationsjustifiesa postponementofthe currentlicense renewalproceeding.
BREDL asserts that the proceeding should be dismissed or held in abeyance
because major changes in security and safeguards requirements at all nuclear
power plants are inevitable in the aftermath of the September 11, 2001 terrorist
attacksandtheCommission’sconsequent‘‘top-to-bottom’’regulatoryreview.6 In
a related argument, BREDL asserts that the NRC cannot claim to have taken the
‘‘hard look’’ required under the National Environmental Policy Act, 42 U.S.C.
§§4321 et seq.,if the agency fails to make a fundamental safety inquiry into the
security risks inherentin operatingcentralizedenergysourcesthat can functionas
radiological weaponry. In addition, BREDL claims that meaningful review of the
license renewal application requires consideration of future heightened security
costs. According to BREDL, it is impossible to evaluate meaningfully nuclear
plant aging and economic issues without considering the impact of increased
security measures on the financial viability of nuclear energy.
These are not persuasive arguments for refusing to go forward with a license
renewaladjudication.Afundamentalreasonisthatthislicenserenewalproceeding
has just begunand is not near a final decision. Duke’s requestedlicense renewals,
if granted,will nottake effectfor at least another 20 years.
7 Hence, we see no risk
here of any immediate threat to the public health and safety.
8
‘‘[T]he Commission historically has been reluctant to suspend pending
adjudicationstoawaitdevelopmentsinother...proceedings.’’9 For example,
we did not hold adjudications in abeyance pending the results of an ongoing
reexamination of our rules in the aftermath of the Three Mile Island accident.
10
More recently, we were unsympathetic to a licensee’s efforts to place a portion
of its own materials license adjudication ‘‘on hold’’ pending its making certain
market-driven business decisions.
11 This general reluctance is firmly grounded
in our longstanding commitment to efficient and expeditious decisionmaking, as
6 See generally Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-22, 54 NRC
255, 257 n.3 (2001).
7 See Responseof DukeEnergyCorp.toBREDL’sPetition ToDismissLicensingProceeding or,intheAlternative,
Hold It in Abeyance, dated Nov. 5, 2001, at 14 n.21.
8 Cf. Vermont Yankee Nuclear Power Corp.(Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151,
173-74 (2000) (the Commission rejected a challenge to the sufficiency of its Subpart M regulations ‘‘to evaluate
adequately the effects of industry consolidation’’).9 See Consolidated Edison Co. of New York (Indian Point, Units 1 and 2), CLI-01-8, 53 NRC 225, 229 (2001)
(declining to suspend a license transfer adjudication pending completion of a similar NRC adjudication involving
another nuclear plant at the same location).See also Niagara Mohawk Power Corp.(Nine Mile Point Nuclear
Station, Units 1 and 2), CLI-99-30, 50 NRC 333, 343 (1999) (declining to suspend a license transfer adjudication
pending conclusion of a New York Public Service Commission proceeding).
10See Interim Statement of Policy and Procedure, 44 Fed. Reg. 58,559 (Oct. 10, 1979) (in the aftermath of
the 1979 TMI accident, the Commission (1) initiated internal reviews to see whether new rules or policies were
necessary, (2) allowed licensing boards to move their hearings forward in the meantime, (3) authorized the NRC
Staff to take litigating positions even on TMI-related issues, and (4) announced that no actual licenses would issue,
absent express Commission authorization, during the pendency of the NRC’s ‘‘lessons learned’’ review).
11See Hydro Resources,Inc.(P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 39 (2001).
390
reiterated in our 1998 Adjudicatory Policy Statement (balancing the applicants’
and licensees’ interest in a prompt decision on their applications with the
intervenors’ and petitioners’ interest in an opportunity for a hearing).
12
BREDL will suffer no cognizable injury from going forward with the hearing
process. We are unpersuadedby BREDL’s assertion that the ‘‘piecemeal’’nature
of the adjudication ‘‘makes it impossible to perform a complete or effective
evaluationoftheissues...withinthescopeofthecurrenthearing’’and‘‘is
wasteful of [the Petitioners’] resources.’’See Petition at 16. We have repeatedly
rejected such resource-related arguments in prior proceedings, and do so again
here. As we stated just this March in Indian Point,CLI-01-8, 53 NRC at 229-30,
‘‘litigation inevitably results in the parties’ loss of both time and money. We
cannot postpone cases for many weeks or months simply because going forward
will prove difficult for litigants or their lawyers.’’
Terminationor postponementof license renewaladjudicationscontravenesthe
Commission’sinterest in ‘‘regulatoryfinality’’and ‘‘soundcase management.’’
13
Our initial order in the instant case expressed our commitment to expeditious
consideration of license renewal applications.See CLI-01-20,54 NRC at 214-15,
216. License renewal, by its very nature, contemplates a limited inquiry — i.e.,
the safety and environmental consequences of an additional 20-year operating
period.14 License renewal focuses on aging issues, not on everyday operating
issues.15 Hence, it is far from clear that upcoming terrorism-related changes in
our rules, if any, will bear on license renewal reviews. But, to the extent the
Commission does, during a later stage of this adjudication, modify this agency’s
safety, environmental,or safeguards rules in a manner that affects issues material
to this adjudication, our procedural rules allow for the possibility of late-filed
contentionsto address such new developments.
16Moreover, if our generic review
leads to new rules applicable here, there will be time enough to apply them.
B. Petition To Dismiss
This proceeding has barely begun,BREDL and NIRS have only recently
submitted contentions, and the Board has yet to rule on petitions to intervene
or requests for hearing. Under these circumstances, we consider it premature to
address contention-like arguments such as those BREDL presents here regarding
12See Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 24 (1998); 63 Fed.
Reg. 41,872 (Aug. 5, 1998).See also Hydro Resources,CLI-01-4, 53 NRC at 38.
13See Hydro Resources,CLI-01-4, 53 NRC at 40.
14See Florida Power & Light Co.(Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3,
6-13 (2001).
15See id.at 7, 9-10.
16See Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 255 & n.15 (1996),
referring to the standards set forth in 10 C.F.R. §2.714(a)(1).
391
plutonium/MOXfueland Duke’sexemptionfroma filingrequirement. BREDL’s
‘‘fuel’’ argument raises a much-litigated environmental law issue: the so-called
‘‘cumulative impact’’ issue.
17 In this proceeding, the issue is styled: whether
the NRC Staff is obliged to consider in an Environmental Impact Statement the
cumulative effect of the instant license extension action together with an as-yet-
unfiled application for an amendment permitting use of plutonium/MOX fuel.
BREDL’s ‘‘exemption’’ argument raises fact-sensitive questions of when and
whether exemption-related issues may be raised in an adjudicatory hearing.
18 We
believeitisgenerallypreferablefortheLicensingBoardtoaddresssuchquestions
in the first instance, allowing us ultimately to consider them after development of
a full record.
III. CONCLUSION
The Commission denies BREDL’s petition to dismiss this proceeding or, in
the alternative, to hold it in abeyance.
IT IS SO ORDERED.
For the Commission
19
ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 28th day of December 2001.
17See generally Kleppe v. Sierra Club,427 U.S. 390, 410 (1976);Society Hill Towers Owners’ Association
v. Rendell,210 F.3d 168, 180-82 (3d Cir. 2000);Hydro Resources,CLI-01-4, 53 NRC at 57-62;United States
Department of Energy (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 424 (1982),rev’d and
remanded per curiam on other grounds sub nom. Natural Resources Defense Council v. NRC,695 F.2d 623 (D.C.
Cir. 1982).
18See generally Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-12, 53 NRC
459, 466, 467 n.3 (2001);Commonwealth Edison Co.(Zion Nuclear Power Station), CLI-00-5, 51 NRC 90, 94-98
(2000);Clinch River,CLI-82-23, 16 NRC at 421.
19Commissioner Diaz was not present for the affirmation of this Order. If he had been present, he would have
approved it.
392
Cite as 54 NRC 393 (2001)CLI-01-28
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
COMMISSIONERS:
Richard A. Meserve,Chairman
Greta Joy Dicus
Nils J. Diaz
Edward McGaffigan, Jr.
Jeffrey S. Merrifield
In the Matter of Docket No. 070-03098-ML
DUKE COGEMA STONE &
WEBSTER
(Savannah River Mixed Oxide Fuel
Fabrication Facility) December 28, 2001
In this proceeding to authorize construction of a mixed oxide (‘‘MOX’’) fuel
fabrication facility, the Commission denies the petition of Georgians Against
Nuclear Energy and the Nuclear Control Institute to suspend the proceeding,
based on the terrorist attacks of September 11, 2001.
RULES OF PRACTICE: SUSPENSION OF PROCEEDING;
ABEYANCE OF PROCEEDING; TERRORISM
The Commission has instituted a full-scale review of its terrorism-relatedrules
and policies. The pendency of that review does not call for a halt in licensing
proceedings, particularly where (as here) the proceeding is at an early stage and
no actual licensing action is imminent.
RULES OF PRACTICE: SUSPENSION OF PROCEEDING;
ABEYANCE OF PROCEEDING; SEEKING RELIEF WITHOUT
FORMAL PARTY STATUS
As an intervention Petitioner in the MOX construction authorization request
adjudicatoryproceeding,GANEwaswithin itsrightstobringtotheCommission’s
393
attention any matters that are ripe for Commission, rather than Board, action.
This is true regardless of the Board’s ultimate ruling that GANE has fulfilled the
requirementsfor standing and raised an admissible contention in order to become
a formal party to this proceeding. The filing of a timely petition to intervene
provided GANE with the requisite status to take additional actions in this
proceeding. We repeatedly have considered petitions or motions filed by persons
or groups who have not yet attained formal ‘‘party’’ status through a finding of
standing.See, e.g., Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power
Plant, Units 1 and 2), CLI-98-15,48 NRC 45 (1998);cf. Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 330 (1983)
(untimely interventionpetitioner has no status to file second motion concurrently,
to disqualify commissioner).
RULES OF PRACTICE: SEEKING RELIEF WITHOUT FORMAL
PARTY STATUS; SUSPENSION OF PROCEEDING; ABEYANCE OF
PROCEEDING
NCI has neither made a hearing request pursuant to 10 C.F.R. §2.1205 nor
soughtpermissiontoparticipatein thisadjudicationonanyotherbasis. Therefore,
NCI has no legitimate place in this proceeding.
RULES OF PRACTICE: SEEKING RELIEF WITHOUT FORMAL
PARTY STATUS; SUSPENSION OF PROCEEDING; ABEYANCE OF
PROCEEDING
GANE’s request to suspend other proceedings is not cognizable in this
individual adjudicatory proceeding.
RULES OF PRACTICE: SUSPENSION OF PROCEEDING;
ABEYANCE OF PROCEEDING; TERRORISM
To decide whether to hold this proceeding in abeyance, ‘‘we consider whether
movingforwardwiththe adjudicationwill jeopardizethepublichealthandsafety,
prove an obstacle to fair and efficient decisionmaking, or prevent appropriate
implementation of any pertinent rule or policy changes that might emerge from
our importantongoingevaluationof terrorism-relatedpolicies.’’See Private Fuel
Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-26, 54
NRC 376, 380 (2001). None of these considerationscalls for postponementof the
MOX proceeding.
394
RULES OF PRACTICE: SUSPENSION OF PROCEEDING;
ABEYANCE OF PROCEEDING
GANE has advanced no reason that warrants immediate suspension of the
MOX CAR proceedingto protect the health and safety or security of its members.
GANE fails to show an immediate and specific threat at the site of the proposed
MOX facility. Indeed, there will be no construction or operation there for years,
even assuming DCS gains the NRC’s approval of the license application. DCS
would not begin construction of the MOX facility until late in 2002 and will not
even file its application for possession and use of special nuclear material until
July 2002.
RULES OF PRACTICE: SUSPENSION OF PROCEEDING (INJURY);
ABEYANCE OF PROCEEDING
The cost and inconvenience of litigating challenges to the DCS application
are not the kind of injury that warrants postponing the licensing proceeding.
Therefore, GANE is not injured or prejudiced in a cognizable sense simply
because it may incur litigating costs and inconvenience from moving forward
with the adjudication before the Commission’s generic review of terrorism issues
is completed.See Duke Energy Corp.(McGuire Nuclear Station, Units 1 and
2; Catawba Nuclear Station, Units 1 and 2), CLI-01-27, 54 NRC 385, 390-91
(2001), and references cited therein.
RULES OF PRACTICE: SUSPENSION OF PROCEEDING;
ABEYANCE OF PROCEEDING; TERRORISM
COMMISSION AUTHORITY
The Commission’s ongoing internal review of terrorism issues is in its early
stages, and may or may not result in policy or rule changes pertinent to the
current adjudication. Our hearing rules, of course, contain sufficient flexibility
to deal with any new developments that occur during the pendency of this
proceeding. In the meantime, there is no reason to postpone the MOX fuel
proceeding, which will require resolution of many issues having nothing to do
with terrorism. Moreover, we have authority to make any resulting modifications
to our regulations applicable to both licensees and applicants and to require DCS
to make any necessary modifications to its fuel fabrication facility.See 42 U.S.C.
§2201(b) and 10 C.F.R. §§2.202, 70.32(b), 70.76, and 70.81(a).
395
RULES OF PRACTICE: SUSPENSION OF PROCEEDING;
ABEYANCE OF PROCEEDING; TERRORISM
EFFICIENT LICENSING AND REGULATION
During the time when the NRC is pursuing its top-to-bottom reassessment of
its regulations and policies on terrorism, the agency must also continue to meet
its statutory responsibilities for licensing and regulation of all nuclear facilities
and materials in a timely and efficient manner.See Statement of Policy on
Conduct of AdjudicatoryProceedings,CLI-98-12,48 NRC 18 (1998). Permitting
unnecessary delays would contravene the Commission’s fundamental duties to
the general public, as well as to applicants and licensees.
RULES OF PRACTICE: SUSPENSION OF PROCEEDING;
ABEYANCE OF PROCEEDING
EFFICIENT LICENSING AND REGULATION
The Commission has a history of not delaying adjudications to await extrinsic
actions, absent special needs of efficiency or fairness.See Private Fuel Storage,
CLI-01-26,54NRCat381-83,andreferencescitedtherein;McGuire&Catawba,
CLI-01-27, 54 NRC at 390-91.
RULES OF PRACTICE: SUSPENSION OF PROCEEDING;
ABEYANCE OF PROCEEDING
LICENSE FOR MIXED OXIDE FUEL FABRICATION FACILITY
NATIONAL SECURITY
The public has an additional strong interest in moving forward with this
MOX fuel fabrication facility construction authorization request proceeding,
specifically, reducing the nation’s inventory of plutonium. In the absence of a
compelling reason, we will not frustrate national security interests by suspending
this proceeding.
MEMORANDUM AND ORDER
On October 10, 2001, Georgians Against Nuclear Energy (‘‘GANE’’) and the
Nuclear Control Institute (‘‘NCI’’) filed a petition, based on the terrorist attacks
of September 11, 2001, to suspend this proceeding to authorize construction
of a mixed oxide (‘‘MOX’’) fuel fabrication facility. We deny the petition.
396
The Commission has instituted a full-scale review of its terrorism-related rules
and policies. But, as we explain in detail in another decision issued today,
1
the pendency of that review does not call for a halt in licensing proceedings,
particularly where (as here) the proceeding is at an early stage and no actual
licensing action is imminent.
I. BACKGROUND
On February 28, 2001, the consortium of Duke Cogema Stone & Webster
(‘‘DCS’’) submitted an application for authorization to construct a MOX fuel
fabrication facility at the U.S. Department of Energy’s Savannah River, South
Carolina, site. After appropriate notices,
2 the Commission received four petitions
to intervene, from GANE, Environmentalists, Inc., Blue Ridge Environmental
Defense League (‘‘BREDL’’), and Charles and Edna Foster. NCI did not seek
to intervene. We referred the matter to the Chief Administrative Judge of the
Atomic Safety and Licensing Board Panel.See CLI-01-13, 53 NRC 478 (2001).
All Petitioners except the Fosters subsequently filed contentions. In addition,
GANE filed with the Board a ‘‘Motion to Dismiss Licensing Proceeding, or, in
the Alternative, Hold It in Abeyance’’ (‘‘Motion’’) on Aug. 13, 2001. The Board
heardoral argumenton standing,admissibility ofcontentions,and the motion. On
December 6, 2001, the Board issued its orderruling on standing and admissibility
of contentions.See LBP-01-35, 54 NRC 403 (2001). The Board granted the
intervention petitions of GANE and BREDL and denied intervention of the
remaining Petitioners. Subsequently, the Board denied GANE’s motion.See
unpublished Memorandum and Order (Ruling on Motion to Dismiss) (Dec. 20,
2001) (‘‘Dec. 20 Order’’).
On October 10, 2001, GANE and NCI filed, directly with the Commission,
a joint petition, requesting that we suspend this proceeding as a result of the
September11, 2001terroristattacksonNew YorkCity andthe Pentagon.
3 GANE
and NCI further requested that we suspend proceedings for construction of all
1 Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376 (2001).
See also Duke Energy Corp.(McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2),
CLI-01-27, 54 NRC 385 (2001).
2 The NRC Staff announced receipt of the construction authorization request(‘‘CAR’’) and environmental report.
See 66 Fed. Reg. 13,794 (Mar. 7, 2001). Later, the Commission published a Notice of Opportunity for a Hearing
under a modified version of our Subpart L procedures.See 66 Fed. Reg. 19,994 (Apr. 18, 2001).
3 See ‘‘Petition by Georgians Against Nuclear Energy and Nuclear Control Institute To Suspend Construction
Authorization Proceeding for Proposed Plutonium Fuel (MOX) Fabrication Facility’’(Oct. 10, 2001) (‘‘Petition’’).
397
new facilities
4 until the NRC Staff completes the regulatory review we mandated.
DCS and the NRC Staff opposed the petition,
5 and GANE and NCI filed a reply.
6
No other party responded to the GANE-NCI petition.
II. PRELIMINARY MATTERS
As an intervention Petitioner in the MOX CAR adjudicatory proceeding,
GANE was within its rights to bring to the Commission’s attention any matters
that are ripe for Commission, rather than Board, action.
7 This is true regardless of
the Board’s ultimate ruling that GANE has fulfilled the requirements for standing
and raised an admissible contention in order to become a formal party to this
proceeding. The filing of a timely petition to intervene provided GANE with the
requisite status to take additional actions in this proceeding.
8
NCI, however, has neither made a hearing request pursuant to 10 C.F.R.
§2.1205 nor sought permission to participate in this adjudication on any other
basis. Therefore, NCI has no legitimate place in this proceeding. Consequently,
we shall hereafter refer only to GANE as the Petitioner.
III. DISCUSSION
A. GANE’s Petition
In the wake of the September 11, 2001 terrorist attacks on New York City
and the Pentagon, GANE alleges that the magnitude of the terrorist threat
4 The only other pending application for a new facility is the Private Fuel Storage, L.L.C. application to construct
andoperatean independentspentfuelstorageinstallation inUtah. TheStateof Utahhasfiled apetition for immediate
relief suspending licensing proceedings in the Private Fuel Storage matter similar to GANE’s petition here. Today
we have also denied Utah’s petition, along with a similar request by the Blue Ridge Environmental Defense
League in a license renewal matter.Seedecisions cited in note 1,supra.
5 See ‘‘Duke Cogema Stone & Webster’s Response to ‘Petition by Georgians Against Nuclear Energy and
Nuclear Control Institute To Suspend Construction Authorization Proceeding for Proposed Plutonium Fuel (MOX)
Fabrication Facility’’’ (Oct. 22, 2001) (‘‘DCS Brief’’) and ‘‘NRC Staff’s Response to Motion To Suspend
Proceeding’’ (Oct.29, 2001) (‘‘Staff Brief’’), respectively.
6 See ‘‘Georgians Against Nuclear Energy and Nuclear Control Institute’s Reply to Responses of NRC Staff
and Duke Cogema Stone & Webster to Petition To Suspend Construction Authorization Proceeding for Proposed
Plutonium Fuel (MOX) Fabrication Facility’’ (Nov. 1, 2001).
7 As a general rule, the Commission does not encourage participants in adjudicatory proceedings to seek to bypass
the Board by filing motions or petitions directly with the Commission.8 DCS argued that GANE’s motion is improper because the Board had not yet granted standing to the organization
at the time GANE and NCI filed the petition.See DCS Brief at 3. We find this argument unpersuasive. We
repeatedly have considered petitions or motions filed by persons or groups who have not yet attained formal ‘‘party’’
status through a finding of standing.See, e.g., Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power Plant,
Units 1 and 2), CLI-98-15, 48 NRC 45 (1998);cf. Metropolitan Edison Co.(Three Mile Island Nuclear Station,
Unit 1), CLI-83-25, 18 NRC 327, 330 (1983) (untimely intervention petitioner has no status to file second motion
concurrently, to disqualify commissioner). Moreover, this issue became moot when the Board granted GANE’s
intervention petition.See LBP-01-35, 54 NRC 403.
398
is substantially greater than previously assumed, that additional attacks are
foreseeable, and that reactors and fuel cycle facilities are highly vulnerable
because they were not designed to withstand severe attacks such as deliberate
airborne assaults and attacks by large groups of individuals.See Petition at 1, 7.
GANE maintains that current NRC regulations are inadequate to protect against
a terrorist threat; thus, GANE concludes that the Commission should suspend
proceedings in which applicable standards are inadequate to ensure protection
of public health and safety until the regulatory review the Commission has
mandated is complete.
9 In short, GANE believes the Commission should not
proceed with construction approval review until we have evaluated the adequacy
of our regulations to ensure reasonably sufficient protection against a substantial
terroristthreatandthatourevaluationshouldincludethe‘‘entirearrayofpotential
credible terrorist scenarios.’’See id.at 7-8.
GANE also requests reversal of the Commission’s ‘‘longstanding refusal’’
to consider terrorist attacks in environmental impact statements.See id.at 2.
GANE argues that events such as a crash of an aircraft into the facility can no
longerbe consideredhighlyunlikely. Further,GANE statesthat it haschallenged,
in its contention 12, the legality under NEPA of DCS’s failure to address the
environmental impacts of terrorist acts against the MOX facility.
10 See id.at 3-4.
B. Suspension of Proceeding
As in the other cases we decide today (see note 1,supra), ‘‘we consider
whether moving forward with the adjudication will jeopardize the public health
and safety, prove an obstacle to fair and efficient decisionmaking, or prevent
appropriate implementation of any pertinent rule or policy changes that might
emergefromourimportantongoingevaluationofterrorism-relatedpolicies.’’See
Private Fuel Storage,CLI-01-26, 54 NRC at 380. None of these considerations
calls for postponement of the MOX proceeding.
GANE has advanced no reason that warrants immediate suspension of the
MOX CAR proceedingto protect the health and safety or security of its members.
As the NRC Staff notes, GANE fails to show an immediate and specific threat at
the site of the proposed MOX facility.See Staff Brief at 5. Indeed, there will be
no constructionor operationthere for years, even assumingDCS gainsthe NRC’s
approval of the license application. DCS would not begin construction of the
9 We will consider GANE’s request to suspend this proceeding; however, GANE’s request to suspend other
proceedings is not cognizable in this individual adjudicatory proceeding.
10Lastly, GANE argues that the bifurcated structure of NRC licensing review of the MOX facility hampers the
effectiveness of sabotage prevention and safeguards measures because the Commission has divorced design issues
from operational issues.See Petition at 11-12. We note that the Board recently denied GANE’searlier motion, which
challenged the legality of the two-part review of applications for the MOX facility that the Commission outlined in
the Commission’s notice of opportunity for hearing (66 Fed. Reg. 19,994 (Apr. 18, 2001)).See Dec. 20 Order.
399
MOX facilityuntil late in 2002andwill not even file its applicationforpossession
and use of special nuclear material until July 2002. The cost and inconvenience
of litigating challenges to the DCS application are not the kind of injury that
warrants postponing the licensing proceeding.
11 Therefore, GANE is not injured
or prejudiced in a cognizable sense simply because it may incur litigating costs
and inconveniencefrom moving forward with the adjudication before the generic
review is completed.
TheCommission, ofcourse,is wellawareoftheeventsofSeptember11,2001,
and has directed the NRC Staff to undertake a top-to-bottom review of every
aspect of our security requirements in light of those events. The Commission’s
ongoing internal review is in its early stages, and may or may not result in policy
or rule changes pertinentto the currentadjudication. Our hearing rules, of course,
contain sufficient flexibility to deal with any new developmentsthat occur during
the pendencyof this proceeding.
12In the meantime, there is no reason to postpone
the MOX fuel proceeding —which, after all, will require resolution of many
issues having nothing to do with terrorism. Moreover, we have authority to make
any resulting modifications to our regulations applicable to both licensees and
applicants and to require DCS to make any necessary modifications to its fuel
fabrication facility.See 42 U.S.C. §2201(b) and 10 C.F.R. §§2.202, 70.32(b),
70.76, and 70.81(a).
During the time when the NRC is pursuing its top-to-bottom reassessment of
its regulations and policies on terrorism, the agency must also continue to meet
its statutory responsibilities for licensing and regulation of all nuclear facilities
and materials in a timely and efficient manner.See Statement of Policy on
Conduct of AdjudicatoryProceedings,CLI-98-12,48 NRC 18 (1998). Permitting
unnecessary delays would contravene the Commission’s fundamental duties to
the general public, as well as to applicants and licensees. The Commission’s
objectives are
to provide a fair hearing process, to avoid unnecessary delays in the NRC’s review and hearing
processes, and to produce an informed adjudicatory record that supports agency decision
making on matters related to the NRC’s responsibilities for protecting public health and safety,
the common defense and security, and the environment.
Id.at19. Consistentwiththispolicy,theCommissionhasahistoryof not delaying
adjudications to await extrinsic actions, absent special needs of efficiency or
fairness.See Private Fuel Storage,CLI-01-26, 54 NRC at 381-83, and references
cited therein;McGuire & Catawba,CLI-01-27, 54 NRC at 390-91.
11See McGuire & Catawba,CLI-01-27, 54 NRC at 390-91, and references cited therein.
12See, e.g.,10 C.F.R. §2.714(a) (late-filed contentions); 10 C.F.R. §2.734 (motions to reopen the record). Our
initial scheduling order in this case accounted for the possibility of late contentions.SeeCLI-01-13, 53 NRC at 481,
484-86.
400
The public has an additional strong interest in moving forward with this
proceeding; specifically, reducing the nation’s inventory of plutonium. As we
recently observed in a scheduling order in this proceeding:
The Commission believes that this proceeding should be completed in a timely and
efficient manner because the Applicant is seeking authorization to build a facility that would
implement a significant objective of national security and policy: reducing the inventory of
plutonium in the nation’s nuclear weapons’ inventory in accordance with the U.S.–Russian
Federal Plutonium Disposition Agreement.
CLI-01-13, 53 NRC at 484. In the absence of a compelling reason, we will not
frustrate national security interests by suspending this proceeding.
Duringthependencyofthisproceeding,ourgenericreviewofterrorism-related
policies will, of course, continue forward. That review may or may not result
in changes pertinent to the proposed MOX facility. Moving forward with the
proceedingis notincompatiblewith our ongoinggenericreview and does not rule
out considering the implementation of any newly developed rules as part of the
ongoing MOX proceeding if appropriate.
III. CONCLUSION
For the foregoing reasons, the Commission denies the petition of NCI and
GANE to suspend this construction authorization request proceeding for the
proposed MOX fuel fabrication facility.
IT IS SO ORDERED.
For the Commission
13
ANNETTE L. VIETTI-COOK
Secretary of the Commission
Dated at Rockville, Maryland,
this 28th day of December 2001.
13Commissioner Diaz was not present for the affirmation of this Order. If he had been present, he would have
approved it.
401
Cite as 54 NRC 403 (2001)LBP-01-35
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
Thomas S. Moore,Chairman
Dr. Charles N. Kelber
Dr. Peter S. Lam
In the Matter of Docket No. 070-03098-ML
(ASLBP No. 01-790-01-ML)
DUKE COGEMA STONE &
WEBSTER
(Savannah River Mixed Oxide Fuel
Fabrication Facility) December 6, 2001
In this Commission-modified Subpart L proceeding involving an application
to construct a mixed oxide fuel fabrication facility, the Licensing Board denies
the intervention petitions of Petitioners Edna Foster and Environmentalists, Inc.,
and grants the petitions of Petitioner GeorgiansAgainst Nuclear Energyand Joint
Petitioners Blue Ridge Environmental Defense League and Donald J. Moniak.
RULES OF PRACTICE: STANDING TO INTERVENE
Under the Commission’s Rules of Practice for informal Subpart L materials
licensing proceedings, a petitioner requesting a hearing and seeking to intervene
must ‘‘meet the judicial standards for standing’’ as the first of two prerequisites
for admission as a party to a proceeding.See 10 C.F.R. §2.1205(h).
RULES OF PRACTICE: STANDING TO INTERVENE
Judicial concepts of standing require a petitioner to assert an actual or threat-
ened, concrete and particularized injury that is fairly traceable to the challenged
403
actionandislikelytoberedressedbyafavorabledecision.InternationalUranium
(USA) Corp.(White Mesa Uranium Mill), CLI-01-18, 54 NRC 27, 30 (2001);
Sequoyah Fuels Corp.(Gore, Oklahoma Site Decommissioning), CLI-01-2, 53
NRC 9, 13 (2001);Quivira Mining Co.(Ambrosia Lake Facility, Grants, New
Mexico), CLI-98-11, 48 NRC 1, 5-6 (1998)
RULES OF PRACTICE: STANDING TO INTERVENE
A showing of injury, causation, and redressibility is necessary regardless of
whether a petitioner is an individual or an organization seeking to intervene in
its own right.Yankee Atomic Electric Co.(Yankee Nuclear Power Station),
CLI-98-21, 48 NRC 185, 195 (1998);Georgia Institute of Technology (Georgia
Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC 111, 115 (1995).
RULES OF PRACTICE: STANDING TO INTERVENE
(REPRESENTATIONAL)
When a membership organization seeks to intervene as the representative of
its members, the petitioning organization must show that one of its individual
members, who has authorized the organization to represent his interests, has
standing to intervene.Private Fuel Storage, L.L.C.(Independent Spent Fuel
Storage Installation), CLI-98-13, 48 NRC 26, 30-31 (1998);Georgia Tech,
CLI-95-12, 42 NRC at 115. Additionally, the petitioning organization must
demonstrate that the interests it seeks to protect are germane to its purposes and
that neither the claim it asserts nor the relief it requests requires the participation
of an individual member in the proceeding.Private Fuel Storage,CLI-98-13, 48
NRC at 30-31.
RULES OF PRACTICE: STANDING TO INTERVENE
(INTERPRETATION OF PETITION)
Indeterminingwhetherapetitionerhas standingtointervene,alicensingboard
must construe the petition in a light most favorable to the petitioner regardless
of whether the petitioner is an individual or an organization.Georgia Tech,
CLI-95-12, 42 NRC at 115.
RULES OF PRACTICE: STANDING TO INTERVENE (SWORN
AFFIDAVITS)
There is no regulatory requirement that information establishing a person’s
membership in an organization be filed in a sworn affidavit in order to establish
404
representationalstanding.See Shieldalloy Metallurgical Corp.(Cambridge, Ohio
Facility), CLI-99-12, 49 NRC 347, 354 & n.4 (1999).
RULES OF PRACTICE: STANDING TO INTERVENE
(INJURY IN FACT)
Even a minor exposure to radiation, even one within regulatory limits, is
sufficient to state an injury in fact.See Yankee Atomic Electric Co.(Yankee
Nuclear Power Station), CLI-96-7, 43 NRC 235, 247-48 (1996).
RULES OF PRACTICE: STANDING TO INTERVENE
(INJURY IN FACT)
An intervention petition that establishes that a petitioner resides near or grows
food for his or her consumption on property that could become contaminated
with radioactivity in the event of a major accident, satisfies the requirements to
establish standing.See, e.g., Allied-General Nuclear Services (Barnwell Fuel
Receiving and Storage Station), ALAB-328, 3 NRC 420, 423-24 (1976).
RULES OF PRACTICE: SCOPE OF PROCEEDING
ThescopeofanagencylicensingproceedingisdelineatedbytheCommission’s
notice of hearing and referral order.See Duke Power Co.(Catawba Nuclear
Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790 (1985).
RULES OF PRACTICE: CONTENTIONS (SCOPE)
A fundamental principal of NRC adjudication is that the subject matter of all
contentions is limited to the scope of the proceeding.See Gulf States Utilities
Co.(River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 51 (1994);Public
Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-316, 3 NRC 167, 170-71 (1976).
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
In order to be admissible, a contention must specify the precise issue of
law or fact being raised. 10 C.F.R. §2.714(b)(2). In addition, each contention
must contain (1) a brief explanation of the bases of the contention; (2) a concise
statementoftheallegedfactsorexpertopinionthatsupportthecontention;and(3)
sufficientinformationtoshow thatagenuinedisputeexistswiththeapplicantona
material issue of law or fact.See 10 C.F.R. §2.714(b)(2)(i),(ii), and (iii). Finally,
405
the contention cannot be one that, even if proven, would be of no consequence to
the proceeding and entitle the petitioner to no relief. 10 C.F.R. §2.714(d)(2)(ii).
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
The contention pleading criteria set forth in 10 C.F.R. §2.714(b)(2) are
mandatory and must be scrupulously followed. As the Commission has stated,
‘‘[i]f any one of these requirements is not met, a contention must be rejected.’’
Arizona Public Service Co.(Palo Verde Nuclear Generating Station, Units 1, 2,
and 3), CLI-91-12,34 NRC 149, 155 (1991);accordDuke EnergyCorp.(Oconee
NuclearStation,Units1,2, and3),CLI-99-11,49NRC328,335(1999);see Final
Rule, Rules of Practice for Domestic Licensing Proceedings; ProceduralChanges
in the Hearing Process, Statementof Considerations,54 Fed. Reg. 33,168,33,171
(Aug. 11, 1989).
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
The provisions of section 2.714 were specifically adopted ‘‘to raise
the threshold bar for an admissible contention’’ and to prohibit ‘‘vague,
unparticularized contentions’’ resulting from ‘‘notice pleading with the details
. . . filled in later.’’Oconee,CLI-99-11, 49 NRC at 334, 338.
RULES OF PRACTICE: CONTENTIONS (BURDEN OF PROOF)
It is the burden of the petitioner to come forward with contentions meeting
the pleading requirements.Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear
Power Plant, Units 1 and 2), CLI-98-14, 48 NRC 39, 41 (1998).
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
A licensing board is not free to supply missing information or draw factual
inferences on the petitioner’s behalf.See Palo Verde,CLI-91-12, 34 NRC at
155-56.
RULES OF PRACTICE: CONTENTIONS
The contention admissibility determination does not involve a decision on the
substantive merits of the profferedcontentions. Rather, it is a determinationthat a
genuine, legitimate dispute of material fact or law exists with respect to the issue
in questionsuchas towarranta furtherinquirybythe Board.See, e.g.,Mississippi
Power and Light Co.(Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6
AEC 423, 426 (1973).
406
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
A contention is admissible only if it is within the scope of the proceeding
as outlined in the Commission’s hearing notice and referral order.Wisconsin
Electric Power Co.(Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18
NRC 335, 339 (1983).
RULES OF PRACTICE: CONTENTIONS (CHALLENGE OF
COMMISSION RULE)
A contention attacking or challenging a Commission rule or regulation is
inadmissible and that inadmissibility bar applies to contentions proffering, for
example, additional or stricter requirements than those that are imposed by the
respective regulation.See 10 C.F.R. §2.758;Oconee,CLI-99-11, 49 NRC at
334;Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-89-8, 29 NRC 399, 416-17 (1989);Long Island Lighting Co.(Shoreham
Nuclear Power Station, Unit 1), CLI-87-12, 26 NRC 383, 395 (1987);Public
Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106,
16 NRC 1649, 1656 (1982).
NEPA: ENVIRONMENTAL IMPACT STATEMENT (TIERING)
TheCommission’senvironmentalregulationsprovideforthetiering,adoption,
and incorporation of environmental impact statements of other federal agencies
into the Commission’s environmental impact statements.See 10 C.F.R. Part 51,
Subpart A, Appendix A.1(b).
RULES OF PRACTICE: CONTENTIONS (STAFF PERFORMANCE)
‘‘[A] contention will not be admitted if the allegation is that the NRC Staff
has not performed an adequate analysis’’because ‘‘the sole focus of the hearing
is on whether the application satisfies NRC regulatory requirements, rather than
the adequacyof the NRC staff performance.’’ProceduralChanges in the Hearing
Process, 54 Fed. Reg. at 33,171.
RULES OF PRACTICE: CONTENTIONS (STAFF PERFORMANCE)
‘‘[C]ontentions must rest on the license application,not on NRC Staff
reviews,’’Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power Plant,
Units 1 and 2), CLI-98-25, 48 NRC 325, 349 (1998), and ‘‘the issue for decision
is not whether the Staff performedwell, but whether the license application raises
health and safety concerns.’’Curators of the University of Missouri,CLI-95-8,
407
41 NRC 386, 396 (1995);see Louisiana Power and Light Co.(Waterford Steam
Electric Station, Unit 3), ALAB-812, 22 NRC 5, 55-56 (1985);Pacific Gas and
Electric Co.(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728,
17 NRC 777, 807 (1983).
RULES OF PRACTICE: CONTENTIONS
A contention need not be elaborate to be admissible, so long as it meets the
requirements of section 2.714(b)(2).
RULES OF PRACTICE: CONTENTIONS (STAFF REQUEST FOR
ADDITIONAL INFORMATION)
RelianceonthefactthattheStaffhasissuedarequestforadditionalinformation
on a particular subject does not, by itself, present a genuine dispute of fact so
as to satisfy the admissibility requirements for a contention.See, e.g., Oconee,
CLI-99-11, 49 NRC at 337.
RULES OF PRACTICE: SUMMARY DISPOSITION
Subsequentlyfiledsupplementaryinformationfiledbyanapplicantinresponse
to Staff requests for additional information may provide grist for the summary
disposition mill as the proceeding progresses but it cannot be used at the initial
contention pleading and contention admissibility determination stage to defeat a
contention’s admissibility.
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
Justasthe merereferenceto a documentdoesnotprovidean adequatebasisfor
a contention, the general reference to a document or documents without specific
citations to the relevant material in the document is not an adequate response to a
contention.See Calvert Cliffs,CLI-98-25, 48 NRC at 348.
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
Fact-based arguments are one method of complying with the requirements of
section 2.714(b)(2).See, e.g., Oconee,CLI-99-11, 49 NRC at 342.
NEPA: RULE OF REASON
The applicable legal standard under NEPA is that only reasonably foreseeable
environmental impacts arising from the proposed action need be analyzed.See,
408
e.g., Limerick Ecology Action, Inc. v. NRC,869 F.2d 719, 739 (3d Cir. 1989).
Stated otherwise, environmental impacts from remote and speculative initiating
events need not be analyzed.See, e.g., Vermont Yankee Nuclear Power Corp.
(VermontYankeeNuclearPowerStation),CLI-90-4,31NRC333,334-35(1990).
RULES OF PRACTICE: CONTENTIONS (INTERPRETATION)
Any misinterpretation or misapprehension of a petitioner’s contentions by the
Board in determining whether they meet the requisite regulatory standards for
admissibility rests squarely with the petitioner.See, e.g., Florida Power & Light
Co.(Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC
3, 15 (2001).
RULES OF PRACTICE: CONTENTIONS (AFFIDAVITS)
A petitioner is required to submit supporting expert affidavits, if any, at the
time of the submission of contentions.See 10 C.F.R. §2.714(b)(2)(ii).
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
Mere reference to a document, without more, does not provide an adequate
basis for a contention.Calvert Cliffs,CLI-98-25, 48 NRC at 348. At a minimum,
anintervenoris obligatedtoreferenceclearlyandthensummarizetheinformation
being relied upon.See 10 C.F.R. §2.714(b)(2)(ii).
RULES OF PRACTICE: CONTENTIONS (STAFF REQUEST FOR
ADDITIONAL INFORMATION)
A petitioner’s assertion that Staff requests for additional information
demonstrate noncompliance with NEPA is an insufficient basis to support a
contention.See Sacramento Municipal Utility District (Rancho Seco Nuclear
Generating Station), CLI-93-3, 37 NRC 135, 147, 150 (1993).
MEMORANDUM AND ORDER
(Ruling on Standing and Admissibility of Contentions)
Beforethe LicensingBoardis thequestionwhetheranyofthePetitionersfiling
intervention petitions in response to the Commission’s notice of opportunity for
hearing on the application of Duke Cogema Stone & Webster (DCS) to construct
a mixed oxide fuel fabrication facility (MFFF) near Aiken, South Carolina, have
standing to intervene. Also before the Board is the question whether any of
409
the sixty-seven contentions proffered by the Petitioners are admissible in this
Commission-modified, 10 C.F.R. Part 2, Subpart L, informal proceeding. In
order to be admitted as a party to the proceeding, each Petitioner must establish
standing to intervene as well as proffer at least one admissible contention.
For the reasons set out below, Petitioners Environmentalists, Inc. (EI),
Georgians Against Nuclear Energy (GANE), and Joint Petitioners Blue Ridge
Environmental Defense League and Donald J. Moniak (collectively BREDL),
have established their standing to intervene. Petitioner Edna Foster has failed
to establish her standing to intervene. Therefore, her intervention petition
must be denied.Additionally, Petitioner GANE has proffered a number of
admissiblecontentionsandPetitionerBREDLhasprofferedatleastoneadmissible
contention; hence, their intervention petitions are granted,and they are admitted
as parties to the proceeding. Petitioner EI has failed to proffer any admissible
contentions. Therefore, EI’s intervention petition is denied.
I. BACKGROUND
On February 28, 2001, DCS, a government contractor, filed a construction
authorization request (CAR) seeking permission to build an MFFF on the United
States Departmentof Energy’sSavannah River Site (SRS) in South Carolina.See
66 Fed. Reg. 19,994, 19,995 (Apr. 18, 2001). According to the Environmental
Report that is part of the DCS application, the 310-square-mile federally owned
SRS is a roughly circular tract of land within Aiken, Barnwell, and Allendale
Counties boundedfor 17 miles on its southwesternborderby the SavannahRiver.
See DCS Mixed Oxide Fuel Fabrication Facility Environmental Report (Dec. 19,
2000) (Rev. 0) at 4-1 [hereinafter ER]. Within the SRS, the MFFF will be located
adjacent to the north-northwest corner of the 395-acre F-Area on a 41-acre site
that lies within Aiken County, 5.8 miles from the nearest SRS site boundary.See
id.at 4-1 to 4-2. The largest nearby population centers are Augusta, Georgia,
and Aiken, South Carolina.See id.at 4-1. Although the site description in the
ER does not disclose either the actual distances between the proposed MFFF and
Aiken or any other cities or towns, it states that the ‘‘center’’ of the F-Area lies
approximately25 miles southeastof Augusta and that the towns of New Ellenton,
Jackson,Barnwell,Snelling,andWilliston, SouthCarolinaare‘‘within’’15miles
of the center of the F-Area.See id.
The MFFF is designed to operate for 20 years and convert 36.4 tons of
surplus weapons-grade plutonium oxide into mixed oxide (MOX) fuel through a
series of chemical and other processes that ultimately blend plutonium dioxide
powder with uranium dioxide powder, form the mixture into fuel pellets, insert
the pellets into fuel rods, and then bundle the rods into fuel assemblies.See id.
at 1-2. The MFFF has an annual design throughput of 3.8 tons of plutonium.
410
See id.After manufacture, it is currently anticipated that the MOX fuel will
be shipped to, and subsequently irradiated in, four ‘‘mission’’ reactors at Duke
Energy Corporation’s Catawba Nuclear Station (Units 1 and 2) near York, South
Carolina, and McGuire Nuclear Station (Units 1 and 2) near Huntersville, North
Carolina.See id.Althoughthe Departmentof Energy(DOE)will ownthe facility,
DCS will be the license holder.See id.at 1-1. DOE has contracted with DCS
to design, construct, operate, and deactivate, although not decommission, the
MFFF. After deactivation, the facility will be turned over to DOE for ultimate
disposition.See id.
AlongwiththeMFFF,twootherproposedfacilitiesrequiringnoNRClicensing
will be located at the SRS: a Pit Disassembly and Conversion Facility (PDCF)
anda PlutoniumImmobilizationPlant(PIP).Asitsnameindicates, thePDCF will
disassemble the pits from nuclear weapons and,inter alia,convert the recovered
weapons-grade plutonium into plutonium dioxide for feedstock for the MFFF
and the PIP.See id.at 1-3 to 1-4. For its part, the PIP will immobilize surplus
plutonium into ceramic pucks for insertion into canisters at an existing DOE
SRS facility, the Defense Waste Processing Facility, as part of high-level waste
packages for subsequent disposal.See id.at 1-4. Together, the proposed MFFF
along with the other SRS facilities are intended to provide DOE with the means
to carry out its surplus plutonium disposition strategy.
After receiving the DCS application,the Commission published a hearing
notice on April 18, 2001.See 66 Fed. Reg. at 19,994. In addition to affording
an opportunity for a hearing on the DCS application, the Commission indicated
that because the CAR was ‘‘a necessary first step in a process potentially leading
to the issuance of a 10 C.F.R. Part 70 materials license, the informal hearing
procedurescontainedin 10 C.F.R. Part2, SubpartL are generallyapplicable.’’Id.
at 19,995. The Commission stated, however, that ‘‘[t]o enhance the effectiveness
of the adjudicatory process . . . additional procedures . . . will be used’’ in
the informal proceeding.Id.Specifically, it directed that a single presiding
officer, either with or without technical assistants as called for under Subpart
L, or a three-judge licensing board as required in formal proceedings under
10 C.F.R. Part 2, Subpart G, could preside over the case, and that Petitioners
must file contentions pursuant to Subpart G, 10 C.F.R. §2.714(b)(2), instead of
highlighting germane areas of concern as in Subpart L informal proceedings.
See id.at 19,996. Although discovery is not permitted in informal Subpart L
proceedings, the Commission directed that ‘‘limited discovery (by deposition,
interrogatory,or both) from non-NRC sources. . . will be permitted.’’Id.Finally,
in place of the presentation procedures of Subpart L, 10 C.F.R. §2.1235, the
Commission restricted all testimony to that of experts filed in affidavit form. In
this regard,theCommissiondirectedthatanypartyfilingexpertwitnessaffidavits
must make the expert available for questioning by the presiding officer, retaining
411
the Subpart L procedure that the parties may propose questions to the presiding
officer to ask the expert.See id.
In response to the Commission’s hearing notice, Petitioners Edna Foster, EI,
GANE, and BREDL filed timely hearing requests and intervention petitions.
1
Subsequently, DCS filed answers opposing each petition.
2 On June 14, 2001,
the Commission issued an order referring the four intervention petitions to the
Atomic Safety and Licensing Board Panel for appropriate action.See CLI-01-13,
53 NRC 478 (2001). In its order, the Commission reiterated the scope of the
proceeding and the hearing procedures previously outlined in the hearing notice,
stating with regard to the substitute procedures it ordered that ‘‘[h]ad we not
taken this step, the exclusive use of Subpart L procedureswould most likely have
led to an entirely paper proceeding in this case.’’Id.at 480. The Commission’s
referral order also detailed an aggressive proposed schedule for conducting and
completing the proceeding.See id.at 484-86.
On June 15, 2001, this three-member Licensing Board was established to
conduct the proceeding.See 66 Fed. Reg. 33,276 (June 21, 2001). The NRC
Staff then filed its answer addressing the four intervention petitions as well
as a notice pursuant to 10 C.F.R. §2.1213, indicating that the Staff would
participate as a party.
3 In accordance with the Commission’s referral order and
the schedule set by the Licensing Board, Petitioners EI, GANE, and BREDL each
filed amendments to their intervention petitions on July 30, 2001,
4 and DCS and
the Staff filed responses.
5 The same Petitioners each then filed their proffered
1 See Letterfrom EdnaFoster,120BalsamLane,Highlands,North Carolina,toNRC(undated); Environmentalists,
Inc.RequestforHearingandPetition toIntervene(facsimiledatedMay18, 2001)[hereinafter EIPetition]; Georgians
AgainstNuclearEnergyRequestforHearing(May17,2001)[hereinafterGANEPetition];BlueRidgeEnvironmental
Defense League Request for Hearing Regarding Mixed Oxide (MOX) Fuel Fabrication Facility (May 17, 2001)
[hereinafter BREDL Petition].
2 See Duke Cogema Stone & Webster’s Answer to Edna Foster’s Request for Hearing (June 5, 2001); Duke
Cogema Stone & Webster’sAnswer to Environmentalists, Inc.Requestfor Hearing and Petition to Intervene (June4,
2001) [hereinafter DCS Answer to EI Petition]; Duke Cogema Stone & Webster’s Answer to Georgians Against
Nuclear Energy’s Request for Hearing (June 1, 2001) [hereinafter DCS Answer to GANE Petition]; Duke Cogema
Stone & Webster’s Answer to Blue Ridge Environmental Defense League’s Request for Hearing (May 29, 2001)
[hereinafter DCS Answer to BREDL].
3 See NRC Staff’s Answer to Hearing Request of Donald Moniak, Blue Ridge Environmental Defense League,
Georgians Against Nuclear Energy, Environmentalists, Inc., and Edna Foster (June 25, 2001) [hereinafter Staff
Answer].
4 See Environmentalists, Inc. Amendment (July 30, 2001) [hereinafter EI Amended Petition]; Georgians Against
Nuclear Energy’s Amended Petition to Intervene (July 30, 2001) [hereinafter GANE Amended Petition]; Blue Ridge
Environmental Defense League and Donald Moniak Additional Filings on Standing (July 30, 2001) [hereinafter
BREDL Amended Petition].
5 See Duke Cogema Stone & Webster’s Answer to Environmentalists, Inc. Amendment to Request for Hearing
and Petition to Intervene (Aug. 10, 2001) [hereinafter DCS Answer to EI Amended Petition]; Duke Cogema Stone
& Webster’s Answer to Georgians Against Nuclear Energy’s Amended Petition to Intervene (Aug. 10, 2001)
[hereinafter DCS Answer to GANE Amended Petition]; Duke Cogema Stone & Webster’s Answer to Blue Ridge
Environmental Defense League and Donald Moniak Additional Filings on Standing (Aug. 10, 2001) [hereinafter
DCS Answer to BREDLAmended Petition]; NRCStaff’s Responseto Supplemental Filings on the Issueof Standing
(Aug. 10, 2001) [hereinafter Staff Answer to Amended Petitions].
412
contentions.6 DCS and the Staff filed responses.
7 On September 21, 2001, the
Board convened a prehearing conference in North Augusta, South Carolina, and
heardargumentonthestandingofthePetitionerstointerveneandtheadmissibility
of each Petitioner’s proffered contentions.
II. STANDING
Under the Commission’s Rules of Practice for informal Subpart L materials
licensing proceedings, a petitioner requesting a hearing and seeking to intervene
must ‘‘meet the judicial standards for standing,’’ 10 C.F.R. §2.1205(h), as the
first of two prerequisites for admission as a party to a proceeding. As the
Commission has frequently reiterated, to demonstrate standing a petitioner must
assert an actual or threatened, concrete and particularized injury in fact falling
within the zone of interests protected by the statutes governing NRC proceedings
that is fairly traceable to the challenged licensing action and is likely to be
redressed by a favorable decision.International Uranium (USA) Corp.(White
Mesa Uranium Mill), CLI-01-18, 54 NRC 27, 30 (2001);Sequoyah Fuels Corp.
(Gore, Oklahoma Site Decommissioning), CLI-01-2, 53 NRC 9, 13 (2001);
Quivira Mining Co.(Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11,
48 NRC 1, 5-6 (1998). The same showing of injury, causation, and redressability
is necessary regardless of whether a petitioner is an individual or an organization
seeking to intervene in its own right.Yankee Atomic Electric Co.(Yankee
Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998);Georgia Institute
of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12,
42 NRC 111, 115 (1995). When a membership organization seeks to intervene
as the representative of its members, however, the petitioning organization must
show that one of its individual members, who has authorized the organization to
represent his interests, has standing to intervene.Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 30-31
(1998);Georgia Tech,CLI-95-12, 42 NRC at 115. Additionally, the petitioning
organizationmust demonstrate that the interests it seeks to protectare germane to
6 See Environmentalists, Inc. [Contentions] Amendment to Petition to Intervene (Aug. 13, 2001) [hereinafter
EI Contentions]; Georgians Against Nuclear Energy Contentions Opposing a License for Duke Cogema Stone
& Webster to Construct a Plutonium Fuel Factory at Savannah River Site (Aug. 13, 2001) [hereinafter GANE
Contentions]; BlueRidge Environmental DefenseLeague and DonaldMoniak Submissionof Contentions Regarding
the Proposed MFFF (Aug. 13, 2001) [hereinafter BREDL Contentions].7 See Duke Cogema Stone & Webster’s Answer to Environmentalists, Inc. Amendment to Petition to Intervene
(Sept. 12, 2001) [hereinafter DCS EI Contention Response]; Duke Cogema Stone & Webster’s Answer to Proposed
Contentions Filed by Georgians Against Nuclear Energy (Sept. 13, 2001) [hereinafter DCS GANE Contention
Response]; Duke Cogema Stone & Webster’s Answer to Blue Ridge Environmental Defense League and Donald
Moniak Submission of Contentions Regarding the Proposed MFFF (Sept. 12, 2001) [hereinafter BREDL Contention
Response]; NRC Staff’s Response to Contentions Submitted by Donald Moniak, Blue Ridge Environmental
Defense League, Georgians Against Nuclear Energy, and Environmentalists, Inc. (Sept. 12, 2001) [hereinafter Staff
Contention Response].
413
its purposes and that neither the claim it asserts nor the relief it requests requires
theparticipationofanindividualmemberintheproceeding.PrivateFuelStorage,
CLI-98-13, 48 NRC at 30-31. Finally, in determining whether a petitioner has
standing to intervene, a licensing board must construe the petition in a light most
favorable to the petitioner regardless of whether the petitioner is an individual or
an organization.Georgia Tech,CLI-95-12, 42 NRC at 115.
In accordance with the terms of the Commission’s referral order, CLI-01-13,
53 NRC at 484, the Licensing Board provided the Petitioners an opportunity
to amend their intervention petitions, and all except Ms. Foster filed such
amendments. Thus, the Petitioners’ initial intervention petitions must be read in
conjunctionwith the subsequentamendmentsin assessing whetherthe Petitioners
have standing. Ms. Foster’s initial handwritten petition requests, without more, a
hearing on the MFFF and the future use of MOX fuel at Oconee, South Carolina,
which she states is located near her. Because Ms. Foster’s petition does not
particularize any injury caused by the MFFF, it is facially insufficient to establish
her standing to intervene and the petition must be denied.
In their intervention petitions, EI, GANE, and BREDL each make extended
and extensive presentations on standing. EI states that it is a nonprofit
corporation of over forty members organized under the laws of South Carolina
dedicated to protecting the health, safety, and welfare of the citizens of
South Carolina, preserving the State’s natural environment, and preventing
environmental pollution by harmful contaminants, including radioactivity.See
EI Petition at 1. GANE states that it is a Georgian environmental membership
organization founded in 1978 whose purpose is to phase out nuclear power,
promote conservation and sustainable energy sources, abolish the global use of
nuclear weapons, and promote the formation of ethical social policies for the
handling and containment of nuclear waste.See GANE Amended Petition at
1-2. Finally, BREDL indicates that it is an environmental organization founded
in 1984 with chapters and members in North and South Carolina.See BREDL
Amended Petition, Aff. of Janet Marsh Zeller (July 30, 2001) at 1. Because we
find that each of these organizations has established its representational standing
by demonstrating that one of its members, who has authorized the organization
to represent him or her, has standing, we need not freight this Memorandum
with an analysis of the Petitioners’ various claims of organizational standing.
Further, because our determination of representational standing is based upon a
common claim of standing by at least one member of each of these organizations
based upon the transport of MOX fuel, we need not burden this decision with an
analysis of the numerous other claims of standing in the intervention petitions.
With respect to the Petitioners’other standingclaims, however,it shouldbe noted
that DCS does not oppose some of GANE’s claims of representational standing,
although it challenges the standing of EI, BREDL, and Donald Moniak.See DCS
Answer to GANE Amended Petition at 1; DCS Answer to EI Amended Petition
414
at 2-14; DCS Answer to BREDL Amended Petition at 3-13. For its part, the
Staff concedes that EI, GANE, and Donald J. Moniak, an individual member of
BREDLanditsrepresentativehere,havestandingonsomeoftheseothergrounds.
The Staff, however, argues that BREDL has not established its representational
standing on the basis of Mr. Moniak’s standing.See Staff Answer to Amended
Petitions at 2.
8
Intheirinterventionpetition,EI,GANE,andBREDLallclaimrepresentational
standing on the basis of the harm to one or more of their members from the
unwanted radiation dose those members will likely receive by being in close
proximitytoa shipmentof MOXfuelonthe sameroadsoverwhichtheMOX fuel
will likely be transported from the MFFF to the Catawba and McGuire reactors.
In this regard, EI’s intervention filings indicate that the release of radioactive
materials during transport will adversely affect its members and their interest in,
and right to travel on, public highways.See EI Petition at 3. Its petition states that
becauseofthe uncertaintiessurroundingthetransportationofplutoniumandother
nuclear materials, it is not possible to predict with accuracy which of its members
are most likelyto be harmedorthe extent ofthe damage,but that its memberswill
be adversely affected in ‘‘[t]heir interest in and right to know which highways
and roads are safest for travel in terms of protecting themselves and their families
from the dangers of being close to trucks carrying Mixed-oxide fuel.’’Id.at 4.
Finally, EI’s petition specifically identifies a number of its members who live 10
to 20 miles from the SRS or the mission reactors, including EI members Gregg
and Nancy Jocoy who, the petition states, live approximately 10 miles from the
CatawbaNuclearStation,travelovertheroadsthatwillbeusedtotransportmixed
oxide fuel to the reactors, and ‘‘are informed and believe’’ that their interests
will be harmed by the construction of the MFFF.Id.Along with its petition, EI
included the affidavits of Gregg Jocoy and Nancy Jocoy declaring,inter alia,that
they authorize EI to represent their interest in the proceeding and that the release
of radiation during transport of mixed oxide fuel would greatly increase the risk
to their health.See EI Amended Petition, Aff. of William Gregg Jocoy (May 15,
2001); Aff. of Nancy Lynn Jocoy (May 15, 2001).
In the same vein as EI’s intervention pleadings, GANE’s petition claims
standing by virtue of the harm to its member Susan Bloomfield from the
8 Even though the Staff concedes that some of the assertions in the BREDL pleadings establish Mr. Moniak’s
standing as an individual, the Staff argues that BREDL has not established its representational standing on the basis
of Mr. Moniak’s standing apparently because it concludes that Mr. Moniak has not authorized BREDL to represent
his interests in the proceeding.See Staff Answer at 14, 24. Mr. Moniak filed a signed and witnessed statement,
however, expressly asserting that he was a member of BREDL and that he authorized BREDL to represent his
interests in the proceeding. BREDL Amended Petition,Aff. of Donald J. Moniak (July 30, 2001) at 1. Although
mislabeled as an ‘‘affidavit,’’ Mr. Moniak’s statement is merely a declaration because it is not a sworn statement
executed before a notary. There is no regulatory requirement, however, that this information must be set forth in
an affidavit.See Shieldalloy Metallurgical Corp.(Cambridge, Ohio Facility), CLI-99-12, 49 NRC 347, 354 &
n.4 (1999). In the circumstances presented, Mr. Moniak’s declaration is sufficient to establish his authorization of
BREDL to represent his interests in this proceeding.
415
radiological impact of transporting plutonium in close proximity to her over the
highways she travels.See GANE Amended Petition at 3-4. In its petition,
GANE proffers that ‘‘[a]s demonstrated in Appendix L of the DOE’s Surplus
Plutonium Disposal Final EnvironmentalImpact Statement (Nov. 1999), impacts
of transporting plutonium under normal conditions include vehicle exhaust and
radiological doses of up to 10 mrem/hour at two meters from the vehicle.’’
Id.at 3-5 n.1. GANE’s petition claims that ‘‘Ms. Bloomfield wishes to avoid
any incremental exposure to radiation, including doses that she may get during
uneventful transportation of plutonium’’ and that ‘‘[e]ven a ‘minor’ public
exposure may constitute grounds for establishing standing.’’Id.In a sworn
declaration accompanying GANE’s pleadings, Ms. Bloomfield asserts that she
is a member of GANE, has authorized GANE to represent her interests in the
proceeding,and that she is concernedabout future shipments of plutonium on the
roadsnear her home because the ‘‘exposureto radiationand vehicle exhaust from
these shipments could injure my health.’’Id.,Aff. of Susan Bloomfield (July 26,
2001) at 1.
Among the multitude of standing claims in its intervention petition, BREDL
asserts that its members will be affected by the direct impacts of transportation of
MOX fuel over the public highways of North and South Carolina.See BREDL
Petition ¶7. According to their petition,‘‘BREDL members drive on, live along,
and recreate near transport routes that will be used for shipping plutonium fuel’’
and‘‘[t]heshipping ofplutoniumfuelfromSRS toMOX fuelirradiationfacilities
will affect members by . . . impacting public health.’’Id.¶7a. BREDL asserts
that ‘‘[t]he MOX fuel option substantially increases DOE radioactive material
shipments in the area between SRS and irradiation facilities, and thus poses
an unnecessary risk of harmful exposure to doses of ionizing radiation during
incident free transportation operations.’’Id.¶7a.i. Joint Petitioners’ intervention
filings also include the affidavit of,inter alia,Frank Carl stating that he is a
member of BREDL, and that he authorizes BREDL to represent his interests in
the proceeding.See BREDL Amended Petition, Aff. of Dr. Frank Carl (July 30,
2001) at 1. In his affidavit, Dr. Carl asserts that he resides approximately 6 miles
fromtheCatawbaNuclearStationand23milesfromtheMcGuireNuclearStation
and, because of his work and other activities, he frequently drives over various
named state and interstate highways that likely will be used to transport MOX
fuel to the mission reactors.See id.at 1-2. Additionally, his affidavit states that
I will have no way of knowing if I am being exposed to potentially harmful and certainly
higher than normal levels of ionizing radiation because the transportation vehicles will not
be marked. I will have no way of knowing if I can avoid the routes because they will not
416
be publicly acknowledged by the U.S. Department of Energy or Duke Cogema Stone and
Webster.
Id.at 2.
We find that Petitioners EI, GANE, and BREDL have each demonstrated
representationalstandingby showingthatat least oneof their respective members
has standing, i.e., has stated an injury in fact falling within the zone of interests
protected by the Atomic Energy Act, that is fairly traceable to the construction of
the MFFF, and is likely to be redressed by a decision favorable to the Petitioners.
Initially, EI through its members Gregg and Nancy Jocoy, GANE through its
member Susan Bloomfield, and BREDL through its member Frank Carl, have
all established that their respective members have authorized the Petitioners to
represent their interest in the proceeding. Each of these individuals also has
stated an injury in fact. They all have asserted the threatened harm to their
health from unwanted doses of ionizing radiation from the MOX fuel that will be
transportedfromthe MFFFto the mission reactorsoverthe same publichighways
the Petitioners’ memberstravel becauseof their close geographicproximityto the
MFFF orthe mission reactors. Asthe interventionpetitionsindicate, incident-free
shipping of plutonium provides a dose of ionizing radiation, albeit small, to
anyone next to the transport vehicle and a minor exposure to radiation, even one
within regulatory limits, is sufficient to state an injury in fact.See Yankee Atomic
Electric Co.(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 247-48
(1996). Further, the asserted harm here — injury to the health and safety of
Petitioners’ members from ionizing radiation — is clearly encompassed by the
health and safety interests protected by the Atomic Energy Act.
Nor is there any doubt that the injury alleged by the Petitioners’ members is
fairly traceable to the construction and subsequent manufacture and shipping of
MOX fuel. Because the transport of MOX fuel to the mission reactors over the
public highways on which Petitioners’ members travel cannot take place without
the construction of the MFFF, it cannot fairly be argued that the threatened injury
to the Petitioners’ members is not caused by the challenged licensing action.
Indeed,theuniquecircumstancessurroundingthetransportationofMOXfuelover
unannounced routes with unannounced schedules in unmarked trucks precludes
thePetitioners’membersfrombeingabletoavoidtheassertedharmtotheirhealth
fromthe shipmentofplutoniumoverthe publichighways. Additionally,andmost
obviously, the asserted injury to the health of the Petitioners’ members would be
redressed by a decision favorableto the Petitioners denyingthe DCS construction
authorization for the MFFF. Finally, the interests that EI, GANE, and BREDL
seek to protect by challenging the DCS construction authorization request are
clearly germane to the purposes of the environmental membership organizations
and neither the claims asserted in any of their proffered contentions nor the relief
sought by the Petitioners requires the participation of an individual member in
417
the proceeding. Accordingly,EI, GANE, and BREDL have each established their
standing to intervene.
9
In their answers to the Petitioners’ intervention petitions, DCS and the Staff
opposethePetitioners’claimsofrepresentationalstandingbaseduponthestanding
of their members’ exposure to ionizing radiation from the transport of MOX fuel,
arguing that the subject of MOX fuel transportation is outside the scope of the
proceeding and, therefore, cannot form the basis for Petitioners’ standing.See
DCS Answer to EI Petition at 7-8; DCS Answer to GANE Petition at 9; DCS
Answer to BREDL Petition at 11; Staff Answer at 15, 36, 41. Relying on
two earlier Licensing Board rulings, DCS also argues that similar transportation
claims have been rejected in the past, while the Staff argues that the assertions
of transportation-related injury by the Petitioners’ members are too speculative
to support claims of standing.See, e.g.,DCS Answer to EI Petition at 8-9; Staff
Answer at 36. Each of these arguments by DCS and the Staff lacks merit.
As DCS and the Staff should be well aware, the scope of an agency licensing
proceeding is delineated by the Commission’s notice of hearing and referral
order.See Duke Power Co.(Catawba Nuclear Station, Units 1 and 2), ALAB-
825, 22 NRC 785, 790(1985). Here the Commission’shearingnotice specifically
and clearly states that ‘‘contentions are expected to focus on the CAR, the
December 2000 environmental report, and/or the January 2001 quality assurance
plan submitted by DCS.’’ 66 Fed. Reg. at 19,996. It is, of course, a fundamental
principle of NRC adjudication that the subject matter of all contentions is limited
to the scope of the proceeding.See Gulf States Utilities Co.(River Bend Station,
Unit 1), CLI-94-10, 40 NRC 43, 51 (1994);Public Service Co. of Indiana
(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC
167, 170-71 (1976). Accordingly, by directing in the notice of hearing that
contentions must be focused on the DCS ER, the Commission necessarily placed
the matters encompassed by the ER within the scope of the proceeding. Among
the many matters addressed, the ER deals extensively with the transportation of
9 The intervention petition of BREDL was filed as a joint petition with Mr. Moniak, a member of BREDL and its
representative in this proceeding, also seeking to intervene as an individual.See BREDL Petition ¶¶1, 6 n.9. Mr.
Moniak’s declaration filed as part of the Joint Petitioners’ amended petition also makes clear that he is a member
of BREDL.See BREDL Amended Petition, Aff. of Donald J. Moniak at 1. As previously indicated (see supra
pp. 416-17), the Joint Petitioners’ intervention filings assert that BREDL members, which necessarily include Mr.
Moniak, travel on the public highways over which MOX fuel likely will be transported and thus risk exposure to
ionizing radiation from suchtransport. Additionally, theassertionsin theJointPetitioners’ intervention petition make
it clear that Mr. Moniak travels on the likely MOX fuel transport routes.See BREDL Petition ¶6 & n.10; BREDL
Amended Petition, Aff. of Donald Moniak. Therefore, the Joint Petitioners’ intervention filings also establish Mr.
Moniak’s standing on the basis of the transportation of MOX fuel from the MFFF to the mission reactors. In
any event and as the Staff, but not DCS (see supra p. 415), concedes, the Joint Petitioners’ intervention petition
establishes Mr. Moniak’s standing on the basis,inter alia,of his residing and growing food for his consumption in
Aiken, South Carolina, some 19 miles from the proposed MFFF, which property, in the event of a major accident
at the MFFF, could become contaminated with radioactivity.See, e.g., Allied-General Nuclear Services (Barnwell
Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 423-24 (1976). Accordingly, Mr. Moniak also has
established his standing to intervene.
418
MOX fuel from the MFFF to the mission reactors. For example, section 1.2.6 of
the ER states that ‘‘[b]ecause one mission reactor site was eliminated since the
publicationoftheSPDEIS[DOE’sSurplusPlutoniumDispositionEnvironmental
Impact Statement], the environmental impacts of MOX fuel transport to the
mission reactors are reevaluated in this ER.’’ ER at 1-5. In section 5.4, entitled
‘‘Transportation,’’ a section with eleven subsections, the ER states that ‘‘[a]n
assessment of the human health risks of the overland transport of radioactive
materials is crucial to a complete appraisal of the environmental impacts of
the MFFF.’’ ER at 5-25. The ER then presents an analysis of the impacts of
incident-free transportation and those due to transportation accidents, including
both nonradiological and radiological impacts. Subsection 5.4.3, entitled ‘‘MOX
Fuel,’’ and subsections 5.4.3.1 and 5.4.3.3 address the impacts of incident-free
transportation, including the impacts on maximally exposed individualssuch as a
person stuck in traffic for 30 minutes next to a shipment of MOX fuel receiving
a dose of 2 mrem with the dose rising proportionately to the length of exposure.
See ER at 5-27 to 5-28. Finally, in a 28-page Appendix E, the ER sets out DCS’s
transportation risk assessment which reveals that there will be 238 MOX fuel
shipments to Catawba and 212 to McGuire, and states that ‘‘[b]ecause of the
classified nature of SGT shipments, the actual routes used and shipment schedule
will not be publicly available.’’Id.,App. E at E-6;see id.at E-21. Thus,
contrary to the arguments of DCS, which authored the ER, and the Staff, which
is charged with reviewing it, the subject of the transportation of MOX fuel is
extensively addressed in the ER, clearly making this a subject within the scope of
the proceeding.
DCS’s skeletal argument relying upon two prior Licensing Board standing
rulings also is unpersuasive. The factual circumstances of both cited cases are
readily distinguishable from the Petitioners’ assertions establishing their standing
here. In Northern States Power Co.(Pathfinder Atomic Plant), LBP-90-3, 31
NRC 40, 42-43 (1990), an organization alleged that the health of one of its
officers, living a mile off Interstate 90 in Rapid City, North Dakota, 350 miles
from the decommissioned Pathfinder plant, would be harmed by an increased
risk of cancer from radioactivity from an accident on the assigned interstate route
involvingtruck shipmentsof low-levelwaste enrouteto the Hanford,Washington
disposal site. The Presiding Officer in Pathfinder determined that ‘‘the link
betweentheinjuryclaimedandtheproposedlicensingactivity[]remainsabsent,’’
and the fact that ‘‘radioactive waste will be transported if decommissioning is
authorized does not ipso facto establish that there is a reasonable opportunity
for an accident to occur at Rapid City, or for the radioactive materials to escape
because of [an] accident or the nature of the substance being transported.’’Id.at
43. Unlike Pathfinder,where the critical causal link between the asserted injury
and the licensing activity was found absent, the Petitioners here, as previously
explained, have adequately established that nexus. Unlike the Petitioners here, in
419
Pathfinder there was no assertion that the officer regularly used the same roads
as the shipments likely would travel, that a person traveling on the road next
to the truck shipment would receive an unwanted dose, albeit small, of ionizing
radiation, and that the harm could not be avoided because information about
the shipments would not be public. Rather, in Pathfinder,the officer merely
claimed, without more, that an accident on the interstate near his home by a truck
carrying low-level waste would harm him. The officer made no showing of how
a transportationaccident would happen to occur near his home along hundredsof
miles of interstate shipping routes or how, in an accident, radioactivity would be
releasedtotheenvironment,orhow,ifreleased,thelow-levelradioactivematerial
involved could cause him harm at his residence. Putting aside the fact that the
Presiding Officer’s unreviewed ruling in Pathfinder is not binding precedent,
the factual circumstances asserted by the Petitioners here clearly establish their
standing and these circumstances are not comparable, or even similar, to those
asserted in Pathfinder.
DCS’s reliance on the Licensing Board’s ruling in Exxon Nuclear Co.(Nu-
clear Fuel Recovery and Recycling Center), LBP-77-59, 6 NRC 518 (1977),
is similarly misplaced. In Exxon,a resident of Nashville, Tennessee, sought
to intervene in the construction permit proceeding for a proposed reprocessing
facility in Oak Ridge claiming that spent fuel shipped by rail would likely travel
over the L & N Railroad tracks very near her property, causing her bodily harm
if an accident occurred close to her home.See id.at 519. In denying standing,
the Licensing Board held that the allegation of injury was ‘‘entirely speculative
in nature, being predicated on the tenuous assumptions that the spent fuel will
be shipped by the named carrier and that an accident might occur in the area
proximate. . . to her residence.’’Id.at 520. Without reiteratingall the Petitioners’
standing assertions, it suffices to note that, unlike the standing claims in Exxon,
the Petitioners’ claims of injury from the transport of MOX fuel are far more
specific in detailing a real, threatened injury and are neither so conjectural nor
problematic as to be speculative for purposes of establishing standing. Although
the Petitioners have not established the probability of their members receiving
an unwanted dose of ionizing radiation from traveling the same highways over
which MOX fuel will be transported between the MFFF and the mission reactors,
no such precision is required. In light of the secrecy surrounding the transport of
MOX fuel, the Petitioners cannot reasonably be expected to do more. Indeed, the
fact that the ER reveals that there will be 450 MOX fuel shipments to the mission
reactors over the life of the MFFF serves to validate that the Petitioners’ asser-
tionsofharmfallwellwithintherealmofthreatenedinjuriessufficienttoestablish
420
standing.10 Accordingly, DCS’s reliance on the Licensing Board ruling in Exxon
is wide of the mark. For the same reasons, the Staff’s claims that the Petitioners’
standing assertions are speculative are without merit.
III. CONTENTIONS
As earlier indicated, the Commission’s hearing notice and referral order
modified the informal Subpart L hearing procedures for the MFFF construction
authorization proceeding to require that petitioners file contentions pursuant to
10 C.F.R. §2.714(b). Thus, in addition to establishing standing, each petitioner
also must proffer at least one admissible contention in order to be admitted as a
party.See 10 C.F.R. §2.714(b)(1). In order to be admissible, a contention must
specify the precise issue of law or fact being raised. 10 C.F.R. §2.714(b)(2). In
addition, section 2.714(b)(2)(i), (ii), and (iii) provides that each contention must
be accompanied by:
(i) A brief explanation of the bases of the contention.
(ii) Aconcise statement ofthealleged facts orexpert opinion whichsupport the contention
. . . together with references to those specific sources and documents of which the petitioner is
aware and on which the petitioner intends to rely to establish those facts or expert opinion.
(iii) Sufficient information . . . to show that a genuine dispute exists with the applicant on
a material issue of law or fact. This showing must include references to the specific portions
of the application . . . that the petitioner disputes and the supporting reasons for each dispute,
or, if the petitioner believes that the application fails to contain information on a relevant
matter as required by law, the identification of each failure and the supporting reasons for
the petitioner’s belief. On issues arising under the National Environmental Policy Act, the
petitioner shall file contentions based on the applicant’s environmental report.
Finally, pursuant to section 2.714(d)(2)(ii), the contention cannot be one that,
even if proven, would be of no consequence to the proceeding and entitle the
petitioner to no relief.
The contention pleading criteria set forth in section 2.714(b)(2)are mandatory
and must be scrupulously followed. As the Commission has stated, ‘‘[i]f any
one of these requirements is not met, a contention must be rejected.’’Arizona
Public Service Co.(Palo Verde Nuclear Generating Station, Units 1, 2, and
3), CLI-91-12, 34 NRC 149, 155 (1991);accord Duke Energy Corp.(Oconee
10Moreover, it should be noted that both DCS and the Staff concede that GANE established its representational
standing basedupon Ms.Bloomfield’s standingas anindividual residing 20 miles from the MFFF and claiming harm
to her health from radioactivity from a major accident at the facility.SeeDCS Answer to GANE Amended Petition
at 1; Staff Answer to Amended Petitions at 19-20. These standing concessions of DCS and the Staff would appear
to be entirely inconsistent with their arguments here that the harm to Petitioners from the transport of MOX fuel
is speculative unless it is accepted that the probability of a major accident at the MFFF spreading radioactivity 20
miles from the facility is significantly less than the probability of the Petitioners encountering a MOX fuel shipment
on the highway.
421
NuclearStation,Units1,2, and3),CLI-99-11,49NRC328,335(1999);see Final
Rule, Rules of Practice for Domestic Licensing Proceedings; ProceduralChanges
in the Hearing Process, Statement of Considerations, 54 Fed. Reg. 33,168,
33,171 (Aug. 11, 1989) [hereinafter Procedural Changes in the Hearing Process].
The provisions of section 2.714 were specifically adopted by the Commission
‘‘to raise the threshold bar for an admissible contention’’ and prohibit ‘‘vague,
unparticularized contentions’’ resulting from ‘‘notice pleading with the details
. . . filled in later.’’Oconee,CLI-99-11, 49 NRC at 334, 338.
Further, it is the burden of the petitioner to come forward with contentions
meeting the pleading rules.Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear
Power Plant, Units 1 and 2), CLI-98-14, 48 NRC 39, 41 (1998). A licensing
board is not free to supply missing information or draw factual inferences on
the petitioner’s behalf.See Palo Verde,CLI-91-12, 34 NRC at 155-56. As
emphasized in the Statement of Policy on Conduct of Adjudicatory Proceedings,
CLI-98-12,48 NRC 18, 22 (1998), ‘‘[a] contention’sproponent,not the licensing
board, is responsible for formulating the contention and providing the necessary
information to satisfy the basis requirement for the admission of contentions in
10 C.F.R. §2.714(b)(2).’’ The contention admissibility determination, however,
does notinvolvea decision on the substantive merits of the profferedcontentions.
Rather, it is a determination that a genuine, legitimate dispute of material fact or
law exists with respect to the issue in question such as to warranta furtherinquiry
by the Board.See, e.g., Mississippi Power and Light Co.(Grand Gulf Nuclear
Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973).
In addition to the contention pleading requirements of section 2.714(b)(2),
a number of other long-established principles of NRC adjudication also limit
the subject matter of contentions. As previously noted, licensing boards have
jurisdiction over those matters that the Commission commits to them in the
various hearing notices and referral orders that identify the subject matters of the
hearing.See Catawba,ALAB-825, 22 NRC at 790;Marble Hill,ALAB-316, 3
NRC at 170-71. A contention is therefore admissible only if it is within the scope
of the proceeding outlined in the Commission’s hearing notice and referral order.
WisconsinElectric PowerCo.(PointBeachNuclearPlant, Units1and2),ALAB-
739, 18 NRC 335, 339 (1983). Secondly, a contention attacking or challenging
a Commission rule or regulation is inadmissible and that inadmissibility bar
applies to contentions proffering, for example, additional or stricter requirements
than those that are imposed by the respective regulation.See 10 C.F.R. §2.758;
Oconee,CLI-99-11, 49 NRC at 334;Public Service Co. of New Hampshire
(Seabrook Station, Units 1 and 2), CLI-89-8, 29 NRC 399, 416-17 (1989);Long
Island Lighting Co.(Shoreham Nuclear Power Station, Unit 1), CLI-87-12, 26
NRC 383, 395 (1987);Public Service Co. of New Hampshire (Seabrook Station,
Units 1 and 2), LBP-82-106, 16 NRC 1649, 1656 (1982).
422
Inthisproceeding,boththeCommission’s noticeof hearingandreferralorders
describe the scope of the proceeding. These Commission directives indicate first
that the scope of the proceeding is bounded by the environmental and safety
findings under 10 C.F.R. §70.23(a)(7) and (b) that the agency must make in
order to approve DCS’s application to construct the MFFF.See 66 Fed. Reg.
at 19,995; CLI-01-13, 53 NRC at 483. As already noted (see supra p. 418),
the notice of hearing states that the subject matter of admissible contentions
must focus on the DCS CAR, ER, and quality assurance plan (QAP). A number
of circumstances unique to the MFFF and its relationship to DOE’s surplus
plutoniumdisposition programplace several additional restrictions on the subject
matter of allowable contentions with regard to matters mentioned or referenced
in the DCS environmental report. The MFFF is one of the facilities, along with
DOE’s proposed PDCF, PIP, and its already existing Defense Waste Processing
Facility, that together are intended to carry out DOE’s plutonium disposition
strategy. Pursuant to federal statute, however, the MFFF, unlike the other two
DOE proposed facilities, is required to be licensed by the NRC.See 42 U.S.C.
§5842(Supp.V 1999). Because the MFFFis a componentofDOE’smultifaceted
surplus plutonium disposition strategy, DOE has already conducted a number of
environmentalstudiesandissued anumberofenvironmentalimpactstatementsas
part of its overall surplus plutonium disposition program. These documents
include two separate EISs — the most recent version,Surplus Plutonium
Disposition FinalEnvironmentalImpactStatement (DOE/EIS-0283)(Nov.1999)
[hereinafter SPD EIS], and its predecessor document,Storage and Disposition
of Weapons-UsableFissile Materials FinalProgrammaticEnvironmentalImpact
Statement (DOE/EIS-0229) (Dec. 1996) [hereinafter PEIS]. In the PEIS, DOE
originally analyzed thirty-seven potential disposition alternatives, as well as a
no-action alternative (i.e., all weapons-usable fissile material would remain at
existing storage sites using appropriate safeguards and security measures) and a
no-disposition-action alternative (i.e., all weapons-usable fissile material would
remain in centralized storage). In addition, the PEIS analyzed each alternative
for the full range of natural resource, human resource, and issue areas pertinent
to the long-term storage and disposition alternatives. The PEIS also considered
six locations, including the SRS, for the long-term storage of plutonium and
evaluatedthesame sites for the constructionand operationofthe variousfacilities
needed for the disposition alternatives.See ER at 1-6 to 1-7.
After concluding that MOX fuel would be a significant part of the plutonium
disposition plan in the PEIS, DOE prepared a subsequent EIS analyzing the
alternatives for implementing the MOX fuel strategy, including a no-action
alternative. The SPD EIS provides a general description of the MOX fuel facility
andtheMOXfuelfabricationprocess,along with aconsiderationofspecificareas
withinthehostsite.Further,itconsiderstheenvironmentalimpactsassociatedwith
transportation of plutonium to the plutonium disposition facilities, transportation
423
of the MOX fuel to the mission reactors, and transportationof wastes for ultimate
disposal. Additionally, consideration of wastes generated at the entire SRS
was considered by DOE in the Savannah River Site Waste Management Final
Environmental Impact Statement (DOE/EIS-0217) (July 1995) [hereinafter SRS
Waste Management Final EIS]. Finally, the transportation and disposal of spent
MOX fuel at a geologic repository were considered in another EIS prepared
by DOE for its proposed Yucca Mountain project in its Draft Environmental
Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear
Fuel and High-Level RadioactiveWaste at Yucca Mountain,Nye County, Nevada
(DOE/EIS-0250D) (July 1999).See ER at 1-5.
These DOE environmental impact statements are obviously relevant to the
MFFF because of the role of the MOX fuel facility in DOE’s surplus plutonium
disposition strategy. In such circumstances, the Commission’s environmental
regulations provide for the tiering, adoption, and incorporation of environmental
impact statements of other federal agenciesinto the Commission’senvironmental
impact statements.See 10 C.F.R. Part 51, Subpart A, Appendix A.1(b).
Although the NRC has yet to issue its EIS for the MFFF, the DCS ER is
the foundationdocumentforthe agency’sEIS,see, e.g.,10C.F.R. §51.45(b),and
follows the scheme of the Commission’s environmental regulations by adopting
and incorporating, where appropriate, the various DOE environmental impact
statements.See, e.g.,ER at 1-3 to 1-9. With the exception of the DCS reanalysis
of the impacts of transporting MOX fuel to the mission reactors discussed earlier
(see supra p. 419), DCS’s practice of adopting and incorporating the DOE
environmental impact statements into its ER generally does not bring those DOE
documents within the scope of this proceeding or open them to challenge in the
discrete proceeding on the MFFF.
Thus, for a contention to be admissible, its subject matter must come within
the scope of the proceeding as outlined above and meet all of the pleading
requirementsof10C.F.R.§2.714(b).WerevieweachofthePetitioners’proffered
contentions in accordance with these standards.
A. GANE’s Contentions
1. Lack of Consideration of Safeguards and Physical Protection
in Facility Design
GANE’s first and second contentions deal, respectively, with the insufficiency
of information in the CAR on the design features of DCS’s material control
and accounting (MC&A), and physical protection systems. Because these two
contentionsraise similar issues andthe contentionsare opposedon the same basic
grounds by DCS and the Staff, the contentions are addressed together.
424
In its first contention, GANE asserts that because the CAR lacks sufficient
informationondesignfeaturesrelevanttoimplementingMC&Ameasurescapable
ofmeetingorexceedingtheCommission’sMC&Arequirements,theCARfailsto
provideany basis forthe NRC, ascalled for in the Staff’sMFFF StandardReview
Plan (SRP), to be able to ‘‘establish that the applicant’s design basis for MC&A
and related commitmentswill lead to an FNMCP (FundamentalNuclear Material
ControlPlan)thatwillmeetorexceedtheregulatoryacceptancecriteriainSection
13.2.4’’ of the SRP. GANE Contentions at 3 (quoting SRP §13.2.5.2A). Much
like its first contention,GANE’s second contention asserts that, because the
CAR lacks sufficient information on design features relevant to implementing
physical protection measures capable of meeting or exceeding the Commission’s
physical protection requirements, the CAR fails to provide any basis for the
NRC to ‘‘establish that the applicant’s proposed design, location, construction
technique,and materialfor elements of the physicalprotectionsystem and related
commitments will lead to a physical protection plan that will meet or exceed the
regulatory acceptance criteria in Section 13.1.4’’ of the SRP. GANE Contentions
at 10 (quoting SRP §13.1.5.2A). The bases for these contentions are long and
detailed, totaling over ten pages. The factual statements and opinions in the bases
of both contentions are supported by the sworn declaration of Edwin S. Lyman,
Ph.D, the scientific director of the Nuclear Control Institute. Dr. Lyman holds
a Ph.D in theoretical physics as well as a master of science and a bachelor’s
degree in physics, and for over 9 years has conducted research on security and
environmentalissues associated with the managementof nuclear material and the
operation of nuclear power plants.See GANE Contentions, Exh. 1. Neither DCS
nor the Staff challenges Dr. Lyman’sexpertise with regard to contentions1 and 2
or any of the other contentions Dr. Lyman’s affidavit supports.
As the basis for contention 1, GANE relies upon a 1992 International Atomic
Energy Agency (IAEA) Board of Governors’ recommendation and a 1997 report
by safeguards experts at the Los Alamos and Sandia National Laboratories
intended for potential bidders on the DOE MOX fuel facility contract, indicating
that effective safeguard measures must be considered early in the design of new
facilities.See GANE Contentions at 3-4. Quoting from the latter report, GANE
indicates that if safeguards capabilities are not properly designed into the facility
it may not be possible to retrofit them to meet requirements without prohibitive
costs.See id.at 4. From these materials, GANE concludes that a reasonably
complete description of the safeguard strategies for the MFFF must be submitted
at the design stage and asserts that this same approach is recommended by the
Staff in its guidancefor the safety evaluationof constructionapprovalin the SRP,
which states that the ‘‘reviewer should establish that the applicant’s design basis
for MC&A and related commitments will lead to an FNMCP that will meet or
exceedtheregulatoryacceptancecriteriainSection13.2.4.’’Id.at5(quotingSRP
§13.2.5.2A). In this regard, GANE notes that the Staff’s SRP defines ‘‘design
425
bases’’ as ‘‘the information that identifies the specific functions to be performed
by an SSC of a facility, and the specific values or ranges of values chosen for
controlling parameters as reference bounds for design.’’ GANE Contentions at
5 (quoting SRP at xviii). GANE next asserts that section 13.2 of the CAR, a
brief paragraph entitled Material Control and Accounting, is grossly deficient
and lacks the information necessary to reach conclusions regarding the quality of
DCS’s design bases for MC&A.See GANE Contentions at 5. Rather, according
to GANE, the CAR merely states that DCS will provide an FNMCP meeting the
Commission’s regulatory requirements with its application for a possession and
use license even thoughother sections of the CAR refer to the location of MC&A
systems, but provideno ‘‘range[]of values chosen for controllingparameters’’ as
required by the SRP.Id.In contrast to the CAR, GANE points to the rigors of the
DOE design review described in the 1997 report by the safeguards experts at the
national laboratories requiring that ‘‘[a]t each main stage of the design process, a
safeguards and security vulnerability assessment (VA) shall be performed on the
facility design to determine if the design meets the intent of the DOE Orders for
preventingand detectingtheftor diversionof nuclearmaterials.’’Id.at 6. Finally,
GANE points to design flaws in the scrap control system of the French MELOX
plants, which purportedly are the model for the MFFF, to illustrate the necessity
of providing basic MC&A design information at the construction approval stage.
See id.at 7-9.
As the basis for its second contention, GANE asserts that the necessity of
accounting for physical protection considerations in the design of facilities that
will store and use special nuclear material is self-evident.See id.at 10. GANE
contendsthatfacilitylayout,structuraldesign,andthelocationofphysicalbarriers
are the design elements that play a crucial role in the technical basis for physical
protection.See id.In this regard, GANE points to the IAEA’s recommendations
that physical protection systems should be taken into account in the design of
the facility as early as possible to ensure that an adequate system can be applied
without compromising safety because in some instances a direct conflict arises
between physical protection requirements based on denial of access and safety
requirements based upon easy access of emergency personnel.See id.at 11.
According to GANE, this same principle is incorporated into the Staff’s SRP
in its guidance on the safety evaluation for construction approval stating that
the reviewer should establish that the design, location, construction technique,
and material elements of the physical protection system will lead to a physical
protection plan that will meet or exceed the regulatory criteria in section 13.1.4
of the SRP.See id.at 12. GANE claims, however, that contrary to this guidance,
section 13.2 of the CAR, dealing with physical security, is grossly deficient and
merely states, without more, that DCS will provide a physical security plan as
part of its application for a license to possess and use special nuclear material.
See id.GANE notes that although the CAR providesno informationon how DCS
426
took physical protectionconsiderationsinto account in its plant design, it seeks to
take credit for safeguards and security structures in addressing the possibility of
damage to the MFFF from accidental explosions in CAR section 5.5.2.7.6.2.See
id.
DCS and the Staff both oppose the admission of contentions 1 and 2 on the
grounds that they are outside the scope of the proceeding.See DCS GANE
Contention Response at 17-20; Staff Contention Response at 8-13. Specifically,
relying upon a portion of the first sentence of 10 C.F.R. §70.23(b), DCS argues
that the scope of this MFFF construction authorization proceeding is limited to
whether ‘‘the design bases of the principal structures, systems, and components
and the quality assurance program provide reasonable assurance of protection
against natural phenomena and the consequences of potential accidents.’’ DCS
GANE Contention Response at 17 (quoting 10 C.F.R. §70.23(b)). According
to DCS, MC&A and physical protection systems are, by their very nature, not
intended to protect against natural phenomena and accidents. Rather, DCS states
such systems are intended to preventthe loss, theft, or sabotage of special nuclear
material, so they fall outside the scope of section 70.23(b) and, hence, there is no
requirement to describe the design bases for the MC&A and physical protection
function in its CAR.See DCS GANE Contention Response at 18.
TheregulationisnotnearlyasnarrowasDCSarguesandsection70.23(b)does
not dictate the exclusion of the most basic design information of the MC&A and
physical protection systems at the construction authorization stage. In pertinent
part, 10 C.F.R. §70.23(b) states that
[t]he Commission will approve construction of the principal structures, systems, and
components of a plutonium processing and fuel fabrication plant on the basis of information
filed pursuant to §70.22(f) when the Commission has determined that the design bases
of the principal structures, systems, and components, and the quality assurance program
provide reasonable assurance of protection against natural phenomena and the consequences
of potential accidents.
Neither 10 C.F.R. Part 70 nor any other part of the Commission’s regulations,
however, define the word ‘‘principal’’ or the term ‘‘principalstructures, systems,
or components.’’
Here, there is no dispute that the MC&A and physical protection systems for
the MFFF are ‘‘systems.’’ In the absence of any regulatory definition, the word
‘‘principal’’ortheterm‘‘principalsystem’’mustbeconstruedinaccordancewith
its ordinary and common meaning in the context of the subject to which it relates
— in this instance ‘‘the principal . . . systems . . . of a plutonium processing and
fuel fabricationplant.’’ 10 C.F.R. §70.23(b).The dictionarydefines the adjective
‘‘principal,’’the grammatical form in which it is used in the regulation, as ‘‘most
important, consequential, or influential: relegating comparable matters, items, or
individuals to secondary rank.’’Webster’s Third New International Dictionary
427
1802 (1993). Applying this definition to the word ‘‘principal’’ in the context of
a facility that processes tons of weapons-grade plutonium to make MOX fuel, it
wouldappearaxiomaticthat the MC&A and physicalprotectionsystemsare most
important systems and systems of first rank so as to qualify as principal systems
within the meaning of section 70.23(b).
DCS and the Staff argue that the MC&A and physical protection systems
are not principal systems within the standard understanding of that term in the
industry.See Tr. at 241, 262. In the case of a domestic plutonium processing and
fuel fabrication facility licensed by the NRC pursuant to 10 C.F.R. §70.23(b),
there is no industry from which to draw a common understanding. This is the
first such facility seeking a license from the NRC. Moreover, a comparison to
the larger domestic nuclear industry encompassing nuclear reactors and uranium
fuel facilities licensed by the NRC is inapt because no other domestic facilities
process strategic quantities of weapons-grade plutonium. In any event, the terms
at issue must be defined in the context of the facility being licensed. Similarly,
any foreign MOX fuel industry is irrelevant to defining the term because such
facilities are not licensed by the NRC under 10 C.F.R. §70.23(b).
In fact, the relevant past domestic experience appears to have been within
the province of DOE. As GANE’s first contention indicates in quoting an article
by safeguards experts at the national laboratories intended for bidders on the
DOE MOX fuel facility contract before congressionallymandated NRC licensing
was imposed, DOE required a stringent safeguards and security vulnerability
assessment at each stage of the design process.See GANE Contentions at 6.
This suggests that, in overseeing its plutonium facilities, DOE considers MC&A
and physical protection systems to be of a rank tantamount to principal systems
under section 70.23(b). Further, in requiring that the NRC license the MOX fuel
facility of a DOE contractor, there is no indication in applicable section 3134 of
the Strom Thurmond Defense Authorization Act for Fiscal Year 1999, 42 U.S.C.
§5842 (Supp. V 1999) or its legislative history, that Congress intended a less
stringent regulatory approach than would be applied by DOE. Hence, contrary to
the argument of DCS and the Staff, the MC&A and physical protection systems
of the MFFF are principal systems within the meaning of section 70.23(b).
Nor is there merit in DCS’s argument that the design bases of MC&A
and physical protection systems of the MFFF need not be considered at the
construction authorization stage under section 70.23(b) because these systems do
not protect against natural phenomena and accidents, but instead are intended
to prevent the loss and theft of special nuclear material. As the plain meaning
of the regulation itself indicates, section 70.23(b) is not as limited as DCS’s
argument would have it. Indeed, DCS’s argument would effectively read out of
the regulation the requirement of a reasonable assurance determination for the
quality assurance program. That program also does not protect against natural
phenomenaandaccidents, but instead is intendedto provideconfidencethat other
428
structures, systems, and components (SSCs) will perform satisfactorily. In much
the same manner, the MC&A and physical protection systems are interrelated
and interdependent upon other facility SSCs and, in the context of a plutonium
processing fuel fabrication plant processing tons of weapons-grade plutonium,
the design bases of the MC&A and physical protection systems must retain their
functionality to make a reasonable assurance determination of protection against
natural phenomenaand the consequencesof potential accidents.Accordingly,the
design bases of the MC&A and physical protection systems of the MFFF are not
precluded from consideration under section 70.23(b), and GANE contentions 1
and 2 are within the scope of the proceeding.
Because contentions 1 and 2 also meet all the requirements of 10 C.F.R.
§2.714(b)(2), these GANE contentions are admissible. Each contention
adequately identifies the issue raised, provides a full explanation of the bases for
the contention, and details the facts, expert opinion, and documents supporting
GANE’s position that shows a genuine dispute exists with DCS over the
sufficiency of the design-bases information in the CAR for the MC&A and
physicalprotectionsystems. A final cautionarynote concerningthese contentions
is in order. Although neither DCS nor the Staff has brought this matter to the
attentionoftheLicensingBoard,section 13.1.4.3of theStaff’sSRPforthe MFFF
states that the ‘‘NRC has determined that public disclosure of the details of the
physical protection system for a MOX facility could affect common defense and
security and should be classified as Confidential National Security Information.’’
Thus,thesetwocontentionsmayrequireinvocationoftheproceduresof10C.F.R.
Part 2, Subpart I, even though this proceeding is being conducted pursuant to 10
C.F.R. Part 2, Subpart L, not Subpart G.
2. Inadequate Seismic Design
GANE’s third contention states:
In Sections 1.3.5 through 1.3.7 of the CAR, DCS specifies the design criteria for the MOX
Fuel Fabrication Facility to withstand any potential geological hazard. DCS claims that
‘‘conservative design criteria’’ have been established.Id.at 1.3.6-23. This assertion is not
supported, because DCS has not performed a seismic analysis that is either adequate in scope
or adequately documented.
GANE Contentions at 13.
Like its first two contentions,GANE’s basis for its third contentionis long and
detailed. The factual statements and opinions set forth in the basis are supported
by the sworn declaration of Peter Burkholder, a seismologist. Mr. Burkholder
holds a master of science degree in seismology and has over 10 years’ experience
conducting and supporting seismological research in various parts of the world.
429
See id.,Exh. 2. DCS does not challenge Mr. Burkholder’s expertise with regard
to GANE contention 3.
As the basis for contention 3, GANE initially explains that the seismic hazard
at a site depends upon the likelihood of a significant seismic event and the
expected site response to such an event.See id.at 13. With respect to the
former, GANE relies upon a recent April 2001 study by Pradeep Talwani and
William T. Shaeffer, entitled ‘‘Recurrencerates of large earthquakesin the South
Carolina Coastal Plain based on paleoliquefaction data,’’ that it asserts provides
evidence that, contrary to the geologic section of DCS’s CAR, the frequency of
major seismic events in the South Carolina coastal plain is higher than previously
thoughtand that major events need not be limited to the Charleston seismic zone.
See id.at 14, Exh. 5. As GANE states, ‘‘contrary to what the CAR says, major
events may have occurred much closer to the SRS than the Charleston Seismic
Zone.’’ GANE Contentions at 15. Next,GANE asserts that although DCS claims
to analyze the relationship between geologic structure and seismic sources within
the site region, DCS’s representations cannot be evaluated because of the lack
of references in the seismology section of the CAR.See id.Specifically, GANE
asserts that most of the tables and figures in section 1.3.6.2 of the CAR do not
contain references to any published work and for those figures that do indicate
some source of information,no citation to a reference documentis provided from
the list of references.See id.Further, GANE claims that other referenced reports
are not publicly available so that it is impossible to verify DCS’s assertions
in the CAR regarding site geology.See id.Similarly, GANE notes that DCS
purports to list the significant earthquakes within 200 miles of the SRS but DCS
has provided no sources used to construct the data table in the CAR, so it is
unverifiable.See id.In this regard, GANE states that a comparison with the
‘‘U.S. Geological Survey’s Preliminary Determination of Epicenters’’ monthly
listing catalog shows that DCS’s listing is inaccurate and incomplete at least for
the period 1974 onwards.See id.at 15-16. From this, GANE concludes that the
recent evidence of prehistoric earthquakesand the failure to list all recent seismic
events indicate that the CAR does not adequately account for the risk of a major
event.See id.at 16.
With respect to site response, GANE explains that the shaking experienced
at a particular location during an earthquake is dependent upon,inter alia,the
distance of the event, the regional geology and topography, and local geology
and topography.See id.GANE states that, although the CAR cites a number of
site response studies within the SRS, DCS does not state that a quantitative site
response study has been done for the MFFF but only indicates some tests will be
done in the future.See id.at 16-17. GANE concludes, therefore,that DCS has not
established the potential for soil liquefaction for the MFFF.See id.Additionally,
GANE points to the Staff’s February 28,2001, RAI to DCS indicating that the
Probabilistic Seismic Hazard Assessment (PSHA) for the MFFF is incomplete
430
and asserts that GANE concurs with the need for clarification on all points
mentioned in the RAI.See id.at 17. GANE also states that the Staff’s Standard
Review Plan for nuclear power plants, NUREG-0800, provides that applicants
should develop a site-specific design spectrum.See id.According to GANE,
DCS has not developed a site-specific design spectrum for the MFFF but instead
is using one computed in 1997 for the entire SRS, and DCS has not provided in
the CAR detailed methodologies or references of spectral shape changes applied
to the starting spectrum for data from site-specific studies.See id.Finally,
GANE asserts that DCS’s approach to the PSHA in the CAR is insufficiently
conservative.Seeid.Specifically,GANE pointstoDCS’s estimateofa 2700-year
return period of a certain seismic event derived from nonpublic Westinghouse
Savannah River Company reports even though the National Seismic Hazard
Mapping Project estimates a return period of 1200 years for the same event at the
SRS.See id.at 17-18.
DCS argues that GANE’s seismic contentionis inadmissible.See DCS GANE
Contention Response at 21. According to DCS, even if GANE’s allegations
are accepted as true, it has provided no basis for believing that any changes in
the design-basis earthquake are necessary, and therefore, GANE has failed to
identify a genuine dispute of a material issue of fact or law as required by the
regulations.See id.For its part, the Staff supports the admission of GANE’s
third contention, asserting that ‘‘it identifies with sufficient particularity material
disputesbetweenGANE and DCS which merit furtherinquiry.’’ Staff Contention
Response at 14. In supportingthe admission of the contention,the Staff notesthat
‘‘[a]t this time, various seismic design issues remain to be resolved before the
necessary probabilistic seismic hazard assessment (PSHA) can be completed for
the proposed MOX facility.’’Id.In this regard, the Staff states that ‘‘[w]hat (if
any)impactthe alternativeearthquakescenario proposedby Talwani et al.(2001)
will have on the PSHA remains to be determined.’’Id.
As the Staff correctly indicates, GANE’s third contention meets the pleading
requirementsofsection 2.714(b)(2)andthusis admissible. Thecontentionclearly
identifies the issue raised, claiming that the seismic analysis in the CAR used
by DCS to support the design criteria for the MFFF is inadequate in scope and
inadequately documented. The basis for the contention then sets forth the facts,
expertopinion,anddocumentsthat show a genuinedispute exists betweenGANE
and DCS on the adequacy of the analysis with respect to the location, frequency,
and return frequency of major and other seismic events and the sufficiency of
the documentation of these matters in the CAR. DCS’s argument that, because
GANE has not demonstratedthat there needs to be any changein the design-basis
earthquake, it has failed to identify a genuine dispute of a material issue of fact
or law overlooks the fact that a supported, legitimate challenge to the validity of
the seismic analysis in the CAR necessarily draws into question and casts doubt
on the continuing soundness of DCS’s conclusion regarding the design-basis
431
earthquake underlying its design criteria. Only after GANE’s challenge to DCS’s
seismic analysis is resolved on the merits can it be determined if the design-basis
earthquake is correct. The determination of whether a contention is admissible,
however, is not concerned with the ultimate outcome of the merits dispute as
DCS’s argument seemingly would have it. Rather, the determination at the
contention admissibility stage is concerned only with whether a real, meaningful
controversy is presented and adequately supported. Here, GANE contention 3
does that.
In addition to its overarching argument, DCS also parses the basis of GANE’s
contention into seven parts and, with respect to each part, sets forth its view of
the facts and argues that no genuine issue of material fact is raised. In each
individual instance, however, just as in the case of its overarching argument, in
claiming its position is correct, DCS argues the substantive merits of the factual
dispute. To repeat, at this stage of the proceeding, the focus is solely on whether
the contention raises a legitimate issue that rests on an adequate foundation.
Accordingly, GANE contention 3 is admissible.
3. Inadequate Licensing Review by NRC Staff
In its fourth contention, GANE asserts that the NRC lacks the necessary
recent, relevant experience to regulate plutonium fuel processing activities so as
to effectively protect the public and the environment from harm.See GANE
Contentions at 18. As the basis for contention 4, GANE states that it has been
more than 20 years since the Cimarron plutonium processing plant operated in
Oklahoma.See id.Next, GANE states that, although it accepted the CAR, ER,
and QAP for docketing, the Staff is not equipped to review the DCS application,
particularly given the short time line set for the Staff to complete its review.
See id.As support, GANE points to a July 11, 2001, letter from the agency’s
Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Materials
Safety and Safeguards (NMSS), to DOE, requesting training for agency Staff
in plutonium processing environments, especially processing environments with
weapons-grade plutonium, and seeking to procure the training without going
through NRC’s administrative processes in order to save an estimated 6 months’
time.See id.at 19;id.,Exh. 4. According to GANE, the Staff appears to have
undertaken the technical review of the key conceptual stage of the MOX facility
while lacking the requisite technical expertise or timely obtaining the training.
See GANE Contentions at 19. DCS and the Staff oppose the admission of GANE
contention 4, in effect, on the grounds that it raises an issue that is not within
the scope of the proceeding.See DCS GANE Contention Response at 27; Staff
Contention Response at 15.
Both DCS and the Staff are correct that the contention is inadmissible. As the
Commission stated in amending the contentions rule, ‘‘a contention will not be
432
admitted if the allegation is that the NRC Staff has not performed an adequate
analysis’’ because ‘‘the sole focus of the hearing is on whether the application
satisfies NRC regulatory requirements, rather than the adequacy of the NRC
staff performance.’’ Procedural Changes in the Hearing Process, 54 Fed. Reg.
at 33,171. Therefore, ‘‘contentions must rest on the license application,not
on NRC Staff reviews,’’Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear
Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 349 (1998), and ‘‘the
issue for decision is not whether the Staff performedwell, but whether the license
application raises health and safety concerns.’’Curators of the University of
Missouri,CLI-95-8, 41 NRC 386, 396 (1995);see Louisiana Power and Light
Co.(Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 55-56
(1985);Pacific Gas and Electric Co.(Diablo Canyon Nuclear Power Plant,
Units 1 and 2), ALAB-728, 17 NRC 777, 807 (1983). Accordingly, the Staff’s
asserted inexperience and lack of training with respect to plutonium processing
environments, specifically weapons-grade plutonium processing environments,
and hence its competence to review DCS’s application to construct the MFFF,
are irrelevant to the sufficiency of DCS’s application and whether the application
complies with the agency’s regulations. Thus, GANE contention 4 raises an issue
that is not litigable as beyond the scope of the proceeding.
4. Incorrect Designation of Controlled Area
GANE contention 5, a safety contention, and contention 8, an environmental
contention, are essentially identical and rely upon the same basis. The two
contentions are therefore consolidated as contention 5. In contention 5, GANE
asserts that even though it does not have control over the whole SRS, DCS
incorrectly designates the entire SRS as the controlled area of the MFFF in
violation of the NRC’s regulations requiring the controlled area to be an area
outside the restricted area, but inside the site boundary, in which DCS can limit
access for any reason. As a result of the improper controlled area designation,
GANE states that DCS (1) improperly characterized members of the public as
MFFF workers for the purposes of calculating radiological doses to the public
during normal operations and accidents;(2) incorrectly minimizes in its ER the
environmental impacts of the MFFF on the public; and (3) adversely affects the
adequacy of the physical security measures, resulting in inadequate design bases
for the MFFF to support construction.See GANE Contentions at 19-20.
As the basis for contention 5, GANE points to the section of the ER that
states DCS plans to use the site boundary of the SRS as the controlled area
boundary for the MFFF.See id.at 20. Relying on the description of the SRS in
the ER, GANE notes that the SRS is an approximately circular tract occupying
310 square miles or some 198,000 acres, while the MFFF will be located only
on a 41-acre site, some much smaller portion of which will be surrounded by a
433
conventional perimeter intrusion detection and assessment system fence forming
a protected area within the SRS.See id.GANE then cites 10 C.F.R. §20.1003,
which requires the controlled area to be within the control of the licensees, and
asserts that the largest area around the MFFF that is within the control of DCS
consists of the protected area that lies within the boundary of the fence around
the facility.See id.Next, quoting from two Staff RAIs, GANE states that its
concern with DCS’s declaration of the controlled area is supported by the Staff.
In the first, a June 18, 2001, RAI on the ER, the Staff indicates that the ER should
state that the NRC considers SRS workers who are not closely and frequently
connected to the licensed activity and who are outside the MFFF restricted area,
yet within the controlled area boundary, to be members of the public.See id.In
the second, a February 28, 2001, RAI on the CAR, the Staff indicates that DCS
should revise its description of the controlled area boundaryto include only those
areas to which DCS can limit access for any reason and change its description of
the SRS workers deemed to be members of the public.See id.at 20-21. Finally,
GANE points to DCS’s July 12, 2001, answer to the Staff’s RAI in which DCS
arguesthattheagencyhaschangedits policybyenactinganew10C.F.R. §70.61,
so that workers at other SRS facilities within the controlled area of the SRS may
be considered workers for purposes of assessing doses from the operation of the
MFFF.See id.at 21. In response, GANE states that, contrary to DCS’s claim,
the NRC has not changed the definition of a controlled area and, therefore, DCS
has no legal basis for defining the controlled area boundary of the MFFF as the
boundary of the entire SRS.See id.DCS argues the contention is inadmissible
because it is based upon an incorrect legal interpretation of controlled area.See
DCS GANE Contention Response at 28-30. The Staff argues the contention is
inadmissiblefor,in effect,failingto state anadequatebasis andformerelyrelying
upon Staff RAIs.See Staff Contention Response at 15-16, 18-19.
ContrarytotheargumentsofDCSandtheStaff,contention5isadmissible. The
contention is brief and straightforward in meeting the pleading requirements of
10 C.F.R. §2.714(b)(2).It sets forth a specific statement of the issue controverted
in asserting that DCS has incorrectly designated the entire SRS as the controlled
area for the MFFF. It then sets forth a statement of the basis supporting that issue
showing that a genuine dispute exists with DCS over an issue of material fact
or law. Specifically, GANE relies on 10 C.F.R. §20.1003 that defines the term
‘‘controlled area’’ and asserts that DCS does not have control over the entire
SRS, but rather only over the area of the MFFF site surrounded by the plant
fence. GANE then explains that DCS’s improper designation of the controlled
site has led DCS to improperly characterize members of the public as MFFF
workers in the CAR and ER for purposes of calculating radiological doses to the
public during normal operation and accident conditions. A contention need not
be elaborate to be admissible, so long as it meets the requirements of section
2.714(b)(2),which contention 5 does here.
434
Even though it does not control all of the SRS, DCS nevertheless argues
that GANE’s contention 5 misinterprets the term ‘‘controlled area’’ in the
Commission’sregulationsandclaims that ‘‘theMOX Facilitycontrolledarea will
be controlled by DCS through an Agreement, or ‘protocol,’ with the DOE that
will, among other things, provide for limitation of site access in the event of an
emergency.’’ DCS GANE Contention Response at 28. According to DCS, the
NRC ‘‘specificallysanctioned’’this approachin amending10 C.F.R. Part70, and
it points to two sentences from the Statement of Considerations accompanying
the rule change as support.See id.at 28-29 & n.76. The two sentences from
the Statement of Considerations relied upon by DCS, however, do not support its
argument. Specifically, the Statement of Considerations states that
[t]he licensee can set the controlled area at any location around its facility as long as it
maintains control of that area as specified in Part 20 and retains the authority to exclude
or remove personnel and property from the area.If the controlled area included the nearby
Department of Energy (DOE) facilities, then NRC would consider the personnel working at
those facilities to be ‘‘workers’’ for the purposes of the performance requirements of Section
70.61, provided the conditions of §70.61(f)(2) are met.
Domestic Licensing of Special Nuclear Material; Possession of a Critical Mass
of Special Nuclear Material, 65 Fed. Reg. 56,211, 56,212 (Sept. 18, 2000)
(emphasis added). DCS’s reading of these statements overlooksthe ‘‘as specified
in Part 20’’ language used by the Commission. Part 20, of course, necessarily
includes the definition of controlled area contained in 10 C.F.R. §20.1003 as is
made abundantly clear by the amended first sentence of 10 C.F.R. §70.61(f),
which states that ‘‘[e]ach licensee must establish a controlled area, as defined
in §20.1003.’’ And, as GANE contention 5 notes, controlled area is defined
in section 20.1003 as ‘‘an area, outside of a restricted area but inside the site
boundary, access to which can be limited by the licensee for any reason.’’ Most
simply put, DCS’s purported ‘‘control’’ of access to the SRS by way of an
agreement with DOE limiting SRS site access in the event of an emergency
arguablyis not coextensive with the ‘‘forany reason’’ languageof the regulation.
DCS has not argued, nor can it reasonably do so, that DOE will cede to DCS the
authority to close the entire SRS ‘‘for any reason,’’ given that the site includes a
major state highway, CSX railroad tracks, and a public trash dump. Hence, for
the same reason set forth in the bases of GANE contention 5, DCS’s argument is
unpersuasive.
Similarly, the Staff’s argument that contention 5 is inadmissible because it
merely references Staff RAIs is wide of the mark. Although reliance on the
fact that the Staff has issued an RAI on a particular subject does not, by itself,
present any genuine material dispute,see, e.g., Oconee,CLI-99-11, 49 NRC at
337, that clearly is not what GANE has done here. Rather, the bases for GANE’s
contentionare the facts asserted aboutDCS’s use in the ER and CAR of the entire
435
SRS for the controlled area of the MFFF and the Commission’s regulations that
GANE asserts prohibit DCS’s actions. GANE has only used the Staff RAIs as
confirmation of its reading of the regulations, a perfectly legitimate use of such
materials. Accordingly, consolidated contention 5 is admissible.
5. Inadequate Safety Analysis
GANE’s sixth contention asserts:
The Safety Analysis (SA) submitted as part of the DCS Construction Authorization Request
(CAR) is seriously flawed and provides neither a comprehensive assessment of all potential
accident consequences nor a credible assessment of all potential accident likelihoods. The
SA does not provide information of sufficient detail and quality to enable the NRC to make
a determination pursuant to 10 C.F.R. §70.23(b) that ‘‘the design bases of the principal
structures, systems and components [of the MFFF]...providereasonableassuranceof
protection against natural phenomena and the consequences of potential accidents.’’
In particular, the SA fails to correctly identify and carry out consequence assessments for
accident scenarios with ‘‘bounding’’ consequences. The applicant’s failure to identify the
actual bounding accident scenarios implies that it has underestimated the consequences of
these scenarios, and hence may not have applied engineered and/or administrative controls to
the extent necessary to meet the performance requirements established in 10 C.F.R. §70.61
and the defense-in-depth requirements of 10 C.F.R. §70.64(b). In addition, the SA incorrectly
considers the controlled area boundary of the MFFF to be coincident with the SRS site
boundary when evaluating accident impacts to the public, which leads to projected doses to
the public considerably below the correct values. Hence, the CAR SA fails to demonstrate
that the MFFF as designed is likely to be in compliance with 10 C.F.R. Part 70. NRC should
therefore deny authorization of MFFF construction based on this document.
GANE Contentions at 21-22.
Much like the issue statement of the contention, the basis for the contention
is long and detailed, consisting of five pages in which the factual statements and
opinions are supported by the sworn declaration of Dr. Lyman.See id.at 22-26;
id.,Exh.1. Initially, the contentionbasis sets out the regulatorystandard under10
C.F.R.§§70.22(f)and70.23(b)forjudgingtheadequacyofDCS’ssafetyanalysis
andtheobjectiveofthesafetyanalysisassetforthinsection5.4.3.1EoftheStaff’s
SRP, which, in turn, looks to the performance requirements of 10 C.F.R. §70.61
and the defense-in-depth requirements of 10 C.F.R. §70.64(b).See id.at 22-23.
Applyingthesestandards,GANEchallengesthe‘‘bounding’’accidentanalysesin
DCS’s safety analysis and concurs with the Staff’s assessment stated in its June 8
and 21, 2001, RAIs that DCS has not provided an adequate justification of its
choiceofboundingaccidentsnorprovidedsufficientinformationto determinethe
quantitativelikelihoodof theanalyzedaccidents.Seeid.at 23. GANE thendetails
two illustrative examples of the shortcomings of DCS’s safety assessments.
436
First, GANE states that, in the case of an internal fire addressed in section
5.5.3.2 of the CAR, DCS does not analyze a bounding case with respect to the
source term and, in the case it does analyze — a fire in the plutonium dioxide
buffer storage unit — its assumptions for bounding an airborne release fraction,
an airborne respirable release number, and leak path factor are questionable and
require more detailed justification.See id.at 23-24. In this regard, GANE asserts
that the assumed value of the respirable airborne release fraction for plutonium
dioxide powder exposed to fire is taken from NUREG/CR-6410. An examination
of the origins of that value, however, indicates that (1) it is based upon a single
set of experiments from the 1960s on a powder of unknown specifications with
no correlation to the powders to be used at the MFFF and (2) NUREG/CR-6410
itself cautionsthatdifferencesinpowdersmakethestudy’sresultsofquestionable
value to other applications.See id.at 24. As a second illustrative example,GANE
asserts, in effect, that DCS has failed to provide adequate information to support
the assumption that its HEPA filters will continue to operate normally during
an accident involving a fire. Relying upon a 1994 DOE study of HEPA filters
in design-basis accidents indicating that there are large gaps and limitations in
the data on filter performance that introduce significant errors in the estimates
of filter efficiencies, GANE asserts that even if conditions are precisely known,
the performance of filters during accidents is uncertain. Because DCS has not
providedevenbasicinformationaboutaccidentconditionsrelevanttoHEPAfilter
performance, GANE asserts that it is impossible to determine quantitatively the
likelihoodthatthefilterswill surviveand thusmeet theperformancerequirements
of 10 C.F.R. §70.61.See id.at 24-25. In this regard, GANE points to the
Staff’s June 21, 2001, RAI stating that HEPA filters are unlikely to survive an
explosion of the magnitude implied by the CAR and indicates that if the filters
are degraded, the accident event would not meet the performance requirements
of 10 C.F.R. §70.61.See id.at 25. GANE concludes that the severity of such an
accident would be consistent with the Staff’s preliminary findings contained in
the August 10, 2001, response to the Petitioners’ standing supplements, that an
explosion in the absence of fully functioning HEPA filters would cause a dose 20
miles from the MFFF to approach the 5- to 25-rem range.See id.at 26.
Withtheexceptionoftheportionofthecontentionregardingthecontrolledarea
boundary,theStaffsupportstheadmissionofthecontention.See StaffContention
Response at 16-17 & n.20. For its part, DCS opposes the admission of GANE
contention 6 on the grounds that it lacks an adequate basis.See DCS GANE
Contention Response at 30-34. DCS claims that the basis for the contention is
insufficient, arguing that ‘‘GANE states that the NRC Staff has posed numerous
RAIs related to the ER and CAR safety assessments’’ but ‘‘RAIs by themselves
are not a sufficient basis for a contention.’’Id.at 31. Next, DCS argues that
GANE has not provided any facts, expert opinion, or other documentation that
call into questionthe acceptabilityof DCS’s analysis.See id.Finally, DCS argues
437
that the DOE paper calling for the use of conservative values for HEPA filter
efficienciesin design-basisaccident analysesrelied uponbyGANE doesnotraise
any genuine issue of material fact. In this regard, DCS states, with a reference to
its response to the Staff’s RAI, that it used conservative values for HEPA filter
efficiencies in its accident analysis by assuming that filter efficiency was reduced
from 99.95% to 99% and that GANE has provided no basis for questioning that
value.See id.at 32-33.
GANE contention 6 meets the requirements of 10 C.F.R. §2.714(b)(2) and is
admissible. The contention adequately identifies the issue controverted, provides
anexplanationofthe basisforthe contention,anddetailsthefacts, expertopinion,
and documentsthat support GANE’s position which, in turn, show that a genuine
dispute exists with DCS on the adequacy of the accident analysis in DCS’s
safety analysis. DCS’s argument concerning GANE’s use of Staff RAIs both
mischaracterizes GANE’s contention and misapplies the law. Although the fact
that the Staff has issued RAIs to DCS by itself does not support the admission
of a contention,see Oconee,CLI-99-11, 49 NRC at 337, GANE has not merely
relied, without more, upon the fact that the Staff issued RAIs to DCS on this
issue. Rather, as should be obviousfrom a reading of the basis for the contention,
GANE has used the substance of the RAIs as additional support for its articulated
position. With respect to DCS’s claim that the contention lacks expert support,
DCS apparently overlooks Dr. Lyman’s sworn declaration supporting the facts
and opinions set forth in contention 6 and GANE’s reliance on the limitation in
NUREG/CR-6410 with regard to the accuracy of any conclusions that can be
drawn from the data relied upon by DCS.
Similarly, with regard to DCS’s last argument, the factual assertions and
opinions in GANE’s challenge to the validity of DCS’s accident analysis and
HEPA filter assumptions are supported,inter alia,by its expert Dr. Lyman.
That challenge, as spelled out in the basis of contention 6, taken as a whole,
directly questions the validity of DCS’s HEPA filter assumption and the lack of
information provided in the CAR to support these assumptions and clearly sets
up a dispute as to the adequacy of the accident analysis. Indeed, at oral argument,
DCSeffectivelyconcededalackofinformationintheCARrelatingtoHEPAfilter
performance in accident conditions of the kind claimed by GANE as precluding
a quantitative analysis of HEPA filter efficiencies.See Tr. at 321-22. Moreover,
subsequently filed supplementary information filed by DCS in response to Staff
RAIs may provide grist for the summary disposition mill as the proceeding
progresses but it cannot be used at the initial contention pleading and contention
admissibility determination stage to defeat a contention’s admissibility. Finally,
for the reasons discussed with regard to the admissibility of GANE contention 5,
the Staff’s objection to the admissibility of the controlled area boundary portion
of contention 6 is without merit. Accordingly, contention 6 is admissible.
438
6. Impacts of Using MOX Fuel in the Catawba and McGuire Reactors
In its seventh contention, GANE asserts that the ER is deficient because it
does not provide an adequate analysis of the impacts of irradiating MOX fuel in
the Catawba and McGuire reactors.See GANE Contentions at 27. As the basis
for the contention, GANE notes that the Catawba and McGuire reactors have
ice condenser containments and that, in addressing the environmental impacts
of burning MOX fuel in these reactors, the ER references DOE’s SPD EIS.See
id.GANE asserts that DOE’s analysis is inadequate because it fails to take
into account significant new information contained in an April 2000 technical
report prepared for the NRC by Sandia National Laboratories, ‘‘Assessment of
the DCH [Direct Containment Heating] Issue for Plants with Ice Condenser
Containments,’’ NUREG/CR-6427 (SAND 99-2553) (Apr. 2000), showing that
ice condenser plants are at least two orders of magnitude more vulnerable
to early containment failure than pressurized water reactors with large dry or
subatmospheric containments.See id.at 28-29;id.,Exh. 7. Relying on an
article by Dr. Lyman, ‘‘Public Heath Risks of Substituting Mixed-Oxide for
Uranium Fuel in Light-Water Reactors,’’ to be published in an upcoming issue
of Science and Global Security,GANE claims that the Sandia findings are of
particular concern because the public health consequences of a severe accident
with containmentfailure and core dispersal are significantly increased with MOX
fuel due to the greater concentrations of plutonium and other actinides compared
to low-enriched uranium cores.See GANE Contentions at 28-29;id.,Exh. 8.
DCS and the Staff argue that GANE contention 7 is inadmissible as outside the
scope of the proceeding.See DCS GANE Contention Response at 34-35; Staff
Contention Response at 17-18.
As previously indicated, DCS’s reference in its ER to DOE’s analysis from
the SPD EIS of the environmental impacts of irradiating MOX fuel in reactors
with ice condenser containments does not open DOE’s analysis to challenge
in this proceeding. Although it is one part of DOE’s larger surplus plutonium
disposalprogram,thescopeoftheinstantproceedingislimitedtotheconstruction
authorization for the MFFF, and the impacts of burning MOX fuel in the mission
reactors is outside that scope. Accordingly, the contention is inadmissible. As the
ER states, however, the ‘‘[s]afety and environmental impacts of design basis and
beyond-designbasis accidents will be analyzed by the mission reactor licensee as
part of the 10 C.F.R. Part 50 reactor license amendment process,’’ ER at 5-43.
The Staff agreesthat considerationof the impactsof such accidentswill be part of
the mission reactor license amendment process and the Staff’s NEPA review so
that the subject may be an appropriate one for contentions in the mission reactor
license amendment proceedings. Tr. at 331-32.
439
7. Inadequate Cost Comparison
GANE’s contention 9 declares that the ER fails to provide a discussion of
the costs of the proposed MFFF or make a comparison to the costs of other
alternatives.See GANE Contentions at 31. As the basis for contention 9, GANE
quotes 10 C.F.R. §51.45(c) to the effect that an environmental report is required
to include ‘‘considerationof the economic,technical, and other benefitsand costs
of the proposed action and of alternatives.’’Id.GANE then asserts that DCS’s
ER violates this regulatory requirement by failing to discuss the economic costs
and benefits of the proposed MOX facility or offering any comparison of the
economic costs of other alternatives.See id.Finally, GANE’s contention lists
the various omitted costs that should be included in the ER and notes that, to the
extent DCS intends merely to rely upon DOE’s SPD EIS, the information in that
impactstatementhasbeensuperceded bymorerecentinformationfromDOE.See
id.DCS argues that GANE contention 9 represents an impermissible challenge to
NRC regulationsanddoesnotraise amaterialissue oflaw orfactwithinthe scope
of the proceeding, so it is inadmissible.See DCS GANE Contention Response at
35-36. The Staff supports the admission of the contention.See Staff Contention
Response at 19-20.
As the Staff asserts, contention 9 is admissible. DCS argues that, because
the first sentence of section 51.45(c) uses the word ‘‘shall’’ in directing that
an environmental report include an analysis of the environmental effects of the
proposed action and alternatives, while the second sentence only uses the word
‘‘should’’incallingfortheconsiderationoftheeconomiccostsandbenefitsofthe
proposed action and alternatives, the inclusion of the economic costs and benefits
of the proposed action and alternatives in its ER is permissive, not mandatory.
DCS’s interpretation of section 51.45(c) is unpersuasive. As a review of the
history of section 51.45(c) reveals, prior to its amendment in 1996, the general
language requiring the inclusion of the economic benefits of the proposed action
and alternatives in an environmental report was contained in the first sentence of
the provision containing the mandatory word ‘‘shall.’’See 10 C.F.R. §51.45(c)
(1996). The 1996 amendmentdivided the first sentence of subsection (c) into two
separate sentences. The amendment then added an exception for environmental
reports prepared for facilities seeking a license renewal at the beginning of the
new second sentence that continued to contain the language about economic
benefits. In amending the regulation, the Commission did not indicate that any
change was intended in the mandatory nature of the economic costs and benefits
requirement of section 51.45(c) other than for environmental reports for facilities
seeking a license renewal.See 61 Fed. Reg. 28,467 (June 5, 1996). Indeed, if the
entire economic costs and benefits provision was intended to be made permissive
as DCS would have it, there would have been no need for the Commission to
providethespecificandexpressexceptionforlicenserenewalinthenewlycreated
440
second sentence. Accordingly, the provision of section 51.45(c)providing for the
inclusion in an environmental report of the economic costs and benefits of the
proposed action and alternatives is mandatory as GANE’s contention asserts.
Further, DCS’s argument that the part of GANE contention 9 concerning the
continuing validity of the cost data in DOE’s SPD EIS is somehow an attack
on DOE policy decisions and outside the scope of the proceeding is equally
unavailing. DCS, not DOE, is required to meet the requirements of section
51.45(c) in its ER on the MFFF. The information on the MFFF necessary to meet
the requirements of that section obviously is information that is well within the
scope of the proceeding. Moreover, GANE’s assertions that there is more recent
DOE cost information than that contained in DOE’s SPD EIS is not an attack on
DOE’s policy decisions. Rather, it is nothing more than an indirect reference to
10 C.F.R. §51.45(e) that the information in an environmental report submitted
pursuant to section 51.45(c) ‘‘should not be confined to information supporting
the proposed action but should also include adverse information.’’ Accordingly,
GANE’s ninth contention meets all the requirements of 10 C.F.R. §2.714(b)(2)
for an environmentalcontention and, therefore, is admissible.
8. Inadequate Discussion of Transportation Impacts
GANE’stenthcontentionassertsthatDCS’srelianceinitsERontheinadequate
analysis in DOE’s SPD EIS of the environmental impacts of transporting
plutonium to the SRS through Georgia from the western states does not comply
with the requirement of NEPA that all foreseeable impacts be analyzed. GANE
Contentions at 31-32. As the basis for its contention, GANE repeats numerous
comments on various aspects of the transportation of plutonium that the State
of Georgia filed on DOE’s draft SPD EIS.See id.at 32-41. DCS and the Staff
oppose the admission of the contention on the grounds that the transportation
issues raised are beyondthe scope of the proceeding.See DCS GANE Contention
Response at 36-37; Staff Contention Response at 20.
LikeGANE’scontention7 concerningthe impactsof burningMOX fuelin the
Catawba and McGuire reactors, this contention dealing with the transportation
of plutonium to the SRS is outside the scope of the proceeding. For the reasons
discussed earlier (see supra p. 419), the subject of the shipment of MOX fuel
from the MFFF to the mission reactors is within the scope of this proceeding.
GANE contention 10, however, concerns the shipment of plutonium to the SRS,
whichis nota subjectDCS reanalyzedin its ER.See ERat 1-5. The transportation
of plutonium to the SRS is addressed in DOE’s SPD EIS and,inter alia,deals
with plutonium shipments to DOE’s proposed PDCF which, in turn, supplies
plutonium oxide feedstock to the MFFF.See ER at 1-3 to 1-5. The scope of the
instant proceeding is limited to the construction authorization of the MFFF and
441
the subject of contention 10 falls outside that scope. Accordingly, the contention
is inadmissible.
9. ER Fails To Address Waste Stream from Aqueous Polishing
In its eleventh contention, GANE claims that the ER understates the impacts
of the waste stream from the aqueous polishing process used to remove gallium,
fails to acknowledge problems with the same process in Europe, and adds to the
radioactive waste already at the SRS without designing any plan for managing
the waste as required by NEPA.See GANE Contentions at 41. Stripped to its
essentials, GANE states in its basis for contention 11 that DOE’s 1999 SPD
EIS analyzed only a dry process called ARIES to purify the plutonium pit feed
material of gallium and other contaminants.See id.at 42. The ER now indicates,
however,thatthe MFFF will use an aqueouspolishingprocessto removegallium,
americium,anduraniumfromtheweapons-gradeplutonium.Seeid.Accordingto
GANE, the aqueous process will create some 81,000 gallons of liquid high-alpha
waste per year that contains nearly 80,000 curies of radioactivity, primarily from
americium-241, for a total of over a million curies during the life of the facility.
See id.at 42-44. GANE indicates that DCS has proposed no plan to deal with
the large volume of this particular non-high-level waste as required by NEPA,
but instead indicates that it will utilize DOE’s high-level waste tanks in the
F-Area tank farm at the SRS.See id.at 42. GANE next asserts that the aqueous
polishing process is based upon similar processes at Cogema’s MELOX and
LaHague facilities in France and, even though DCS ‘‘cite[s] experience gained
there andprocessesused there as basesfor the plutoniumfuelfactoryatSRS,’’ all
the ‘‘data relevant to design, performance, waste volume and management, and
environmental and worker safety for COGEMA’s French operations are secret
and unavailable to the public.’’Id.at 41-42. GANE then refers to the study
and monitoring by Greenpeace and WISE–Paris of contamination in the North
Atlantic from the LaHague plant and claims that in order to comply with NEPA
and 10 C.F.R. Part 70, the environmental data from the French facilities must be
made available.See id.at 42. DCS and the Staff both claim that, because GANE
has failed to provide an adequate basis for contention 11, it is inadmissable.See
DCS GANE Contention Response at 37-40; Staff Contention Response at 21.
There is no doubt that contention 11 could be better organized and stated
more clearly and precisely so that the contention provides an easier roadmap to
follow. Nonetheless, the central part of the contention indicating that the ER fails
adequately to address and analyze the impacts from the high-alpha waste stream
producedfromtheMFFFandthesupportingbasisfortheissuemeettheminimum
requirementsfor admissibility set forth in 10 C.F.R. §2.714(b)(2).Thus, contrary
to the argumentsof DCS andthe Staff, that portionof contention11is admissible.
442
In opposing contention 11, DCS argues that GANE inaccurately characterizes
the record in that its ER provides that the wastes from the aqueous polishing
process will be transferred to the SRS F-Area tank farm under DOE’s jurisdiction
and that neither DCS nor the NRC has responsibility or jurisdiction over the
wastes once they leave the MFFF.See DCS GANE Contention Response at
38. DCS also argues that the environmental impacts associated with the SRS
High Level Waste System, including the F-Area tank farm, are described in
DOE’s 1995 SRS Waste Management Final EIS in which DOE analyzed the
management and treatment of the approximately 35 million gallons of existing
high-level waste at the SRS as well as an additional 7.1 million gallons projected
to be generated under various scenarios. Because the MFFF will generate less
than100,000gallonsof high-alphaliquidwaste peryear for20years, DCS claims
the environmental impacts of the MFFF waste are bounded by existing analyses.
See id.at 39.
DCS’s argument ignores the primary thrust of GANE’s contention that neither
DOE’s SPD EIS nor the ER analyzes and addresses the annual 80,000-gallon,
non-high-level, high-alpha liquid waste stream containing nearly 80,000 curies
of americium-241 as required by NEPA. The fact that the waste ultimately will
be turned over to DOE, and therefore is not within the jurisdiction of either
DCS or NRC once the waste leaves the MFFF, does not relieve DCS of its
obligation,in theabsenceofanyDOE analysisof thehigh-alphawaste, toanalyze
and address in the ER the environmental impacts of the wastes it generates.
Although DCS argues that the environmental impacts of the SRS High Level
Waste System, including the F-Area tank farm, are described in DOE’s SRS
Waste Management Final EIS,
11 that EIS deals with high-level waste, not the
kind of non-high-level, high-alpha liquid waste generated by the MFFF and, as
Appendix B, Table B.13-2 of that EIS shows, the F-Area tanks do not contain
americium-241. Indeed, DCS has not challenged GANE’s assertion that DOE’s
SPD EIS does not address the disposition and impacts of the high-alpha waste
stream.12 Similarly, DCS’s ‘‘proverbialdrop in the bucket argument’’concerning
the quantity of waste generated by the MFFF in relation to the 35 million gallons
of high-level waste already at the SRS again does not address the principal focus
11In citing DOE’s 1995 SRS Waste Management Final EIS, DCS does not provide even a volume number,
much less a section or page number, to the purportedly relevant portions of the document that it claims describe
‘‘[t]he environmental impacts associated with the SRS High Level Waste (HLW) system, including the F-Area Tank
Farm....’’DCSGANE Contention Response at 39. Just as the mere reference to a document does not provide an
adequate basis for a contention,see Calvert Cliffs,CLI-98-25, 48 NRC at 348, the general reference to a document
or documents without specific citations to the relevant material in the document is not an adequate response to a
contention.
12Although DCS neither cites nor otherwise references DOE’s SPD EIS in opposing GANE contention 11, it
appears DOE briefly describes in that EIS a ‘‘plutonium-polishing process.’’See SPD EIS at 2-35. Assuming that
process is comparable to the MFFF aqueous polishing process, the SPD EIS does not appear to be consistent with
the description in DCS’s ER of the disposition and treatment of the high-alpha waste stream (i.e., americium-241).
See ER at 5-20.
443
of GANE’s contention that the environmental impacts of a high-alpha waste
stream containing americium-241 has not been appropriately addressed. Perhaps
this is why the ER, in contrast to DCS’s contention response, states only that
‘‘any impacts to the environment should be bounded by those evaluated in the
previous DOE EISs.’’ ER at 5-20 (emphasis added). Accordingly, that portion
of GANE contention 11 asserting that DCS’s ER understates the impacts of the
waste stream from the aqueous polishing process is admissible.
10. Failure To Analyze Malevolent Acts of Terrorism
GANE contention 12 states that NEPA requires the analysis of foreseeable
environmental impacts and asserts that the ER fails to analyze the foreseeable
impacts of malevolent acts of terrorism and insider sabotage causing a beyond-
design-basis accident.See GANE Contentions at 45. As the basis for the
contention, GANE relies upon an internal memorandum of the State of Georgia
criticizing DOE’s response to the State’s comments on DOE’s draft SPD EIS,
indicating,inter alia,that the State is unconvinced by DOE’s assertions that
malevolent acts are only conjecture and do not present a credible scenario for
serious accidents.See id.at 47-48. Further, GANE contends that for the
malevolentact scenario to go unaddressedcouldlead to dire consequencesfor the
people and environmentof South Carolina and Georgia because
[t]errorism scenarios abound in the nightly news. Assault weapons and rocket launchers may
be purchased by members of the civilian population not only on the black market but at
weapons trade shows. News stories abound of employees at nuclear facilities around the world
stealing special nuclear materials, to prove that they CAN or at least that’s what they say when
caught.
Id.at 48. DCS opposes the admission of the contention, arguing that it raises
matters that need not be considered under NEPA.See DCS GANE Contention
Response at 40-41. For its part, the Staff argues that the contention lacks an
adequate legal basis and thus is inadmissible.See Staff Contention Response at
22.
GANE contention 12 meets the standards of 10 C.F.R. §2.714(b)(2) for an
admissible environmental contention. The contention states the precise issue
raised, i.e., pursuant to NEPA, DCS’s ER must analyze the environmental
impacts of terrorist acts causing a beyond-design-basis accident because such
terrorist acts are reasonably foreseeable. It complies with section 2.714(b)(2)(i)
and (ii) by providing a brief explanation of the basis and an outline of the basic
facts supporting the contention. In this regard, GANE references an internal
memorandum of the State of Georgia stating the State’s view that terrorist acts
against nuclear interests are credible and not conjecture, and then sets out a
444
simple, fact-based argument to the effect that terrorist scenarios and the means
by which such schemes are executed are now foreseeable as they are regular fare
in the news. Such fact-based arguments are one method of complying with the
requirementsofsection2.714(b)(2).See,e.g.,Oconee,CLI-99-11,49NRCat342
(‘‘[d]ocuments,expertopinion, or at least a fact-based argumentare necessary’’).
Finally, and as required by section 2.714(b)(2)(iii), GANE’s contention provides
sufficient information to show a genuine dispute with DCS over whether the
ER, as the foundation document for the Staff’s environmental impact statement,
complies with NEPA because it fails to analyze the environmental impacts of
foreseeable terrorist acts causing a beyond-design-basisaccident.
Citing Long Island Lighting Co.(Shoreham Nuclear Power Station), ALAB-
156, 6 AEC 831, 851 (1973), DCS asserts, without any analysis, that ‘‘NEPA
does not require an assessment of the environmental impacts of terrorism.’’ DCS
GANE Contention Response at 41 & n.107.Shoreham,a reactor construction
permit proceeding, involved an appellate challenge to the exclusion of the issue
of foreign sabotage from the proceeding and the argument that the Licensing
Board’sdecisionwasdeficientbecausetherisksofforeignandindustrialsabotage
should have been factored into the Board’s cost-benefit analysis under NEPA.
See Shoreham,ALAB-156, 6 AEC at 851. In upholding the exclusion of this
issue, the Appeal Board held that the rationale for 10 C.F.R. §50.13, which
obviates the need for design features in reactors to protect against attacks by
foreign enemy governments or individuals, applied to the Commission’s NEPA
responsibilities as well.See id.By its terms, however, section 50.13 applies
only to production and utilization facilities and is inapplicable to the MFFF. Nor
is there a comparable regulatory provision covering material license facilities,
specifically fuel fabrication facilities. Accordingly,Shoreham is inapposite.
Although the rationale for 10 C.F.R. §50.13 that the Shoreham Appeal
Board found applicable to the agency’s NEPA responsibilities so as to preclude
consideration of the environmental impacts caused by foreign sabotage at a
nuclear reactor would appear to be equally applicable to all other facilities
regulated by the NRC, the simple fact remains that the Commission has never
promulgated a parallel regulation covering 10 C.F.R. Part 70 facilities such as
the MFFF. Consequently, for the Licensing Board to apply the rationale for
10 C.F.R. §50.13 to the agency’s responsibilities under NEPA here, requires a
leap that is tantamount to writing a comparable regulation for Part 70 facilities
and then applying the rationale for that new regulation to the agency’s NEPA
responsibilities for the MFFF. Such an action would involve the Board in making
policy decisions that are the exclusive domain of the Commission and require the
Board to exceed its assigned role in the Commission’s adjudicatory system.
DCS and the Staff agree, and as GANE’s contention indicates, the applicable
legal standard under NEPA is that only reasonably foreseeable environmental
impacts arising from the proposed action need be analyzed.See Tr. at 352; Staff
445
Contention Response at 22;see, e.g., Limerick Ecology Action, Inc. v. NRC,
869 F.2d 719, 739 (3d Cir. 1989). Stated otherwise, environmental impacts
from remote and speculative initiating events need not be analyzed.See, e.g.,
VermontYankeeNuclearPowerCorp.(VermontYankeeNuclearPowerStation),
CLI-90-4,31NRC 333,334-35(1990).Althoughagreeingon theapplicablelegal
standard, both DCS and the Staff also argue that terrorist acts are not foreseeable.
See, e.g.,Tr. at 354-55, 357-58, 362.
GANE’s contention was filed on August 13, 2001. Regardless of how
foreseeable terrorist acts that could cause a beyond-design-basis accident were
prior to the terrorist attacks of September 11, 2001, involvingthe deliberate crash
of hijacked jumbo jets into the twin towers of the World Trade Center in New
York City and the Pentagon in the Nation’s capital, killing thousands of people,
it can no longer be argued that terrorist attacks of heretofore unimagined scope
and sophistication against previously unimaginable targets are not reasonably
foreseeable. Indeed, the very fact these terrorist attacks occurred demonstrates
that massive and destructive terrorist acts can and do occur and closes the door, at
least for the immediate future, on qualitative arguments that such terrorist attacks
are always remote and speculative and not reasonably foreseeable.
Obviously, the Board cannot close its eyes to the recent terrorists acts or the
Commission’simmediateresponse that nuclearfacilities, includingfuel facilities,
maintain the highest level of security readiness. Nor is it controlling that the
events of September 11 occurred subsequent to the filing of GANE’s contention
and are not specifically included in it.The contention speaks generically of
foreseeable terrorist acts causing a beyond-design-basisaccident and more is not
required. In this regard, however, it should be noted that GANE sought leave to
amend the factual basis for the contention and also requested the Board to take
judicial notice of the recent terrorist attacks.See Tr. at 351. Having found that
the contention is admissible, the Board notes that DCS and the Staff are still free
to challenge quantitatively the likelihood of such a terrorist-initiated event in an
attempt to demonstrate that it is remote and speculative.
DCS also argues that because the consequences of a terrorist-caused accident
are similar to other types of accidents addressed in its ER and other impact
statements, there is no reason separately to addressterrorist acts.See DCS GANE
Contention Response at 41. Although in some circumstances DCS’s argument
may have currency,
13 the accidents analyzed in the ER for the MFFF, as well
as those in the CAR, are not similar to a beyond-design-basis accident caused
by terrorist acts of the type recently witnessed. All of DCS’s accident scenarios
assume filtration efficiency for each HEPA filter of at least 99%.See ER,
13See, e.g., Philadelphia Electric Co.(Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681,
698-99 (1985),aff’d in part,CLI-86-5, 23 NRC 125 (1986),aff’d in part and rev’d on other grounds sub nom.
Limerick Ecology Action, Inc. v. NRC,869 F.2d 719 (3d Cir. 1989).
446
App. F at F5-F6; CAR §11.4.9.2. Stated otherwise, in all of DCS’s accident
scenarios, both HEPA filters continue to function and DCS has not analyzed the
impact of any accident in which one or both HEPA filters are incapacitated. In
such circumstances, DCS’s argument is unpersuasive. Finally, both DCS (Tr. at
355) and the Staff (Staff Contention Response at 22) argue that contention 12
is inadmissible because GANE has not shown that it is foreseeable that a MOX
facility will be the target of a terrorist attack. The test under NEPA, however, is
only reasonable foreseeability, not perfect prescience.
Even though GANE contention 12 raises the issue of a terrorist-caused
beyond-design-basis accident as an environmental contention under NEPA, and
not as a safety contention, it nonetheless raises an extremely important policy
question. In such circumstances, the Board normally would certify the question
of the admissibility of this contention to the Commission pursuant to 10 C.F.R.
§2.1209(d).Inthisinstance,however,DCShasvigorouslyopposedtheadmission
of all of GANE’s contentions and the grant of its intervention petition and DCS
has the opportunity to place the issue squarely before the Commission in an
appeal from the grant of GANE’s intervention petition.See Statement of Policy
on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 23 (1998).
Thus, the certification by the Board of this matter is unnecessary.
11. Lack of Probabilistic Risk Assessment
GANE’slast contention,number13,asserts that theERsatisfies neitherNEPA
nor the NRC’s regulations because it contains an inadequate assessment of the
probability and consequences of accidents.See GANE Contentions at 48. As
the basis for contention 13, GANE first states that the accident analysis in the
ER is inadequate because it is not supported by a detailed license application
describinghowthe MFFF willbe operatedand,withoutsuch information,therisk
assessment is merely speculative.See id.at 48-49. Next, GANE asserts that the
ER violated 10 C.F.R. §51.45(c) because it does not quantify the probability of
accidents or explain why it is not practicable to quantify them.See id.at 49. DCS
opposes the admission of the contention, arguing that it is legally incorrect and
alsomischaracterizestheER.See DCSGANEContentionResponseat41-43. The
Staff argues the contention is inadmissable for being ‘‘too vague and general,’’
apparently meaning it fails to meet the requirements of 10 C.F.R. §2.714(b)(2).
See Staff Contention Response at 23.
BothofGANE’sassertedbasesforcontention13areinsufficienttosupportthe
contention. GANE cites no NEPA or Commission regulatory provision requiring
that the ER be supported by a detailed license application describing how the
facility will be operated. Further, contrary to GANE’s assertion, 10 C.F.R.
§51.45(c) does not support its contention. In pertinent part, section 51.45(c)
states that the ‘‘analyses for environmental reports shall, to the fullest extent
447
practicable, quantify the various factors considered’’ and ‘‘[t]o the extent that
there are important qualitative considerationsor factors that cannot be quantified,
those considerations or factors shall be discussed in qualitative terms.’’ This
unambiguous regulation implementing the Commission’s responsibility under
NEPA,see 10 C.F.R. §51.10(a), does not by its terms mandate the preparation
of a probabilistic risk assessment. Further, no other Commission environmental
or safety regulation requires DCS to prepare a probabilistic risk assessment for
the MFFF. Moreover, contrary to GANE’s assertion, the ER states why DCS
provides qualitative rather than quantitative statements of accident risks.See ER,
App. F at F-6. Accordingly, contention 13 is inadmissible because it lacks an
adequate basis showing that a genuine dispute exists on a material issue of law or
fact as required by section 2.714(b)(2)(iii).
B. BREDL Contentions
BREDL’s77-pagecontentionfilingbeginswitha12-pageintroductionstating,
inter alia,that its contentions are written ‘‘with an eye towards endorsing the
NRC’s own ‘plain language policy’’’ so as to be readily understandable. BREDL
Contentions at 11. BREDL then states that its ‘‘[c]ontentions are grouped into
categories to avoid duplication involved with citing rules as well as redundancy
in the facts and narratives [sic] discussions. In this manner, contentions are
more discrete and easily identified, with related contentions are [sic] grouped
in a systematic matter.’’Id.Although the announced scheme for drafting and
arranging its contentions is admirable, BREDL’s execution falls far short of its
goal. The separation of purported issue statements from the asserted factual and
legal bases for the contentions, combined with frequent numbering and other
identification errors, and the presentation of seemingly disjointed statements
instead of any real connecting narrative or explanation has made it extremely
difficult in many instances for the Licensing Board to understand and match the
supposed bases with the issues. Thus, any misinterpretation or misapprehension
of BREDL’s contentions by the Board in determining whether they meet the
requisite regulatory standards for admissibility rests squarely with BREDL.See,
e.g., Florida Power & Light Co.(Turkey Point Nuclear Generating Plant, Units 3
and 4), CLI-01-17, 54 NRC 3, 15 (2001).
1. Contention Group 1: Gross Violations of Radioactive Waste
Management Rules
ThefirstgroupofBREDLcontentionsconsistsoffiveparts,labeled1Athrough
1E. In its first contention, BREDL asserts that DCS’s proposal to transfer waste
to DOE’s contiguous SRS F-Area tanks for processing, storage, and disposal is
448
a violation of NRC regulations.See BREDL Contentions at 13. As a basis for
the contention, BREDL asserts that the MOX facility will generate a new form
of waste (high-alpha-activity waste), which will be transferred to DOE. BREDL
contends that this transfer to the F-Area tank farm will create an unlicensed waste
facility in violation of 10 C.F.R. §20.2001.See id.at 15. DCS argues that the
contention is inadmissible because there is no regulatory violation and thus no
genuine dispute over any material issue of fact or law. DCS also asserts that
the contention is beyond the scope of the proceeding because it fails to assert
any deficiencies in the ER, QAP, or the identification of the design bases of
the principal SSCs.See DCS BREDL Contention Response at 17-18. The Staff
asserts the contention is inadmissible because there is no factual or legal basis for
the contention.See Staff Contention Response at 28-29.
BREDL’s first contention raises no genuine issue of fact or law as required
by 10 C.F.R. §2.714(b)(2)(iii). In pertinent part, section 20.2001(a) provides
that ‘‘[a] licensee shall dispose of licensed material only . . . [b]y transfer to an
authorizedrecipientasprovidedin...part[]70ofthischapter.’’Inturn,10C.F.R.
§70.42(b)(1)allows a licensee to transfer special nuclear material to DOE if such
actionis notprohibitedby its Part70license. Consequently,BREDL’scontention
is footed upona patently incorrectreadingof an unambiguousregulation. Section
70.42(b) is clear on its face that such a transfer of waste to DOE is permitted
under the Commission’s rules. The contention does not assert that the regulation
is unclear so as to provide for alternative readings that would create a genuine
dispute. Additionally, BREDL’s citation to the definition of ‘‘contiguous sites’’
in 10 C.F.R. §70.4 as a legal basis for the contention does nothing to make
it admissible because the contention fails to explain how this definition is
even relevant.See BREDL Contentions at 14. Accordingly, the contention is
inadmissible.
In contention 1B, BREDL asserts that DCS submitted ‘‘contradictory and
therefore inaccurate reports,’’ in violation of 10 C.F.R. §70.9, which requires
the information submitted by an applicant to be ‘‘complete and accurate in all
material respects.’’Id.at 13-14. As the basis for this contention, BREDL claims
that the information submitted by DCS contains contradictory language because,
on the one hand, the ER states that the ‘‘greatest impact of operations at the
[MOX] fuel fabrication facility will be the amount of waste generated,’’ but on
the other, the CAR states that a ‘‘very small amount’’ of generated waste will
be transferred to the SRS.Id.at 15. DCS and the Staff argue that there is no
factual or legal basis for the contention, asserting that BREDL has taken the two
statements out of context.See DCS BREDL Contention Response at 18-19; Staff
Contention Response at 29-30. DCS also asserts that the contention is beyondthe
scope of the proceedingbecause it doesnot assert any deficiencyin the CAR, ER,
or QAP.See DCS BREDL Contention Response at 19.
449
Contention 1B is inadmissible. First, the contention fails to set forth ‘‘a
specific statement of the issue of law or fact to be raised’’ as required by section
2.714(b)(2). BREDL’s contention is vague and open-ended, failing to identify a
specific substantive safety or environmental issue that would entitle BREDL to
legal relief. In addition, BREDL’s contention does not provide an adequate basis
as required by section 2.714(b)(2)(i).The contention purports to quote a sentence
fromtheER,butitfailstoprovideanycitationforthereferencedpassage. Further,
it fails to provide any explanation as to how or why these statements contradict
oneanother,whichisnotself-evident. Indeed,asDCSandtheStaffstate, BREDL
has taken the statements out of context.
BREDL’s contention 1C asserts that the ER fails to identify numerousadverse
impacts of radioactive waste generation in violation of 10 C.F.R. §51.45(b),
all of which relate to past actions and alleged failures of various DOE waste
initiatives.See BREDL Contentions at 13-14. For example, BREDL alleges that
DCS has failed to identify numerous adverse impacts of the radiological waste
disposal plan, failed to describe ‘‘notable features of the management system,’’
failed to address or acknowledge mismanagementof waste at the SRS, and failed
to identify a ‘‘plethora of failures and financial boondoggles associated with
attempts to resolve the problem.’’Id.at 15-18. In addition, BREDL claims that
DCS has not described its present and future compliance with the ‘‘SRS Federal
Facility Agreement,’’ and has failed to acknowledge key process uncertainties in
managing high-level liquid radioactive waste at SRS.See id.at 17-18.
14 BREDL
also alleges that the waste problem at SRS is exacerbated because DCS has
adopted a false baseline of ‘‘zero,’’ ignoring the effects of the already present 36
million gallons of waste at the F-Area tank farms that will not be removed until
2028.See id.at 16-17. BREDL asserts that these issues are ‘‘gross violation[s]
of all aspects of NEPA,’’ and a failure to comply with 10 C.F.R. §70.9, which
requires that ‘‘[i]nformation provided to the Commission by an applicant for a
license . . . be complete and accurate in all material respects.’’Id.at 15. DCS and
the Staff both assert that this contention is beyond the scope of the proceeding.
See DCS BREDL Contention Response at 19-20; Staff Contention Response
at 30.
Because this contention focuses exclusively on DOE’s general management
of waste at the SRS, it is beyond the scope of the instant proceeding that deals
solely with the constructionauthorizationfor the MFFF. As previouslynoted (see
supra p. 424), the issues concerning the management of waste of the SRS are
addressed in DOE’s SRS Waste Management Final EIS. Thus, the contention is
inadmissible.
14BREDL has labeled two items as d.vi on page 17.
450
BREDL’s fourth contention submits that ‘‘DOE committed gross violations
of the National Environmental Protection [sic]Act...byknowingly publishing
false,misleadingandinaccurateinformationinlegalNEPAdocuments.’’BREDL
Contentions at 13. As a legal basis for the contention, BREDL lists, without
more, 10 C.F.R. §51.45(b) and (e), and all parts of NEPA.See id.at 14. The
contention then asserts various supposed inadequacies with DOE’s SPD EIS and
other DOE documents. DCS and the Staff argue that this contention is beyond
the scope of the proceeding.See DCS BREDL Contention Response at 20-21;
Staff Contention Response at 30-31. DCS and the Staff are correct. Like the third
contention in this group, this contention is beyond the scope of the proceeding
addressingdeficienciesinDOE’s NEPAprocessandotherrelatedDOEactivities.
In the final contention of this group, BREDL asserts that the ER and CAR are
inadequate because they are ‘‘dominated by deficiencies.’’ BREDL Contentions
at 13. As its legal basis, the contention merely lists all parts of NEPA and
10 C.F.R. §70.9.See id.at 14. Regarding alleged deficiencies in the CAR,
the contention claims DCS fails to: (1) define the disposal route for evaporator
bottoms; (2) provide for sampling of the ‘‘stripped uranium stream’’; (3) specify
the quantity of principal radionuclides in liquid and gaseous effluents released to
unrestricted areas; and (4) specify ‘‘details’’ of the design requirements for the
high-alphaliquidwaste transferline.Seeid.at 20. Withregardtoreferencesinthe
ER, the contention claims that DOE’s proposed F-Area Infrastructure Upgrades
will include constructing a liquid waste pipeline from the MFFF to the F-Area
outside the facility that has never been analyzed under NEPA.See id.DCS
argues that the ‘‘[r]equestors’ statements that these details are not provided is an
improper challenge to 10 C.F.R. §70.22(f)’’ and that the contention is factually
incorrect. DCS BREDL Contention Response at 21. The Staff asserts that this
contention is inadmissible because the legal and factual bases for the contention
are inadequate.See Staff Contention Response at 25.
With the exception of the environmental portion of the contention concerning
theunanalyzedimpactsofthehigh-alphaliquidwastetransferline,thiscontention
is inadmissible. None of the asserted deficiencies claimed by BREDL in that part
of the contention concerning the CAR raises a genuine dispute of material law or
fact with DCS. Contrary to BREDL’s first assertion, DCS’s CAR demonstrates
a disposal route for the evaporator bottoms. This waste will ultimately be
discharged by the MFFF in the high-alpha liquid waste stream for management
by DOE.See CAR Figure 10-1 at 10-21. With respect to its second assertion,
the CAR indicates that the stripped uranium stream will in fact be sampled as it
undergoesisotopic dilution priorto transferto the high-alphawaste tanks.See id.;
CAR §10.1.4.1.1. The third assertion is also factually inaccurate because, as the
CAR indicates, there are no radionuclide discharges from the MOX facility from
normal operations into the environment, and the gaseous discharges that occur
are addressed in the CAR.See CAR §§10.1.1, 10.2.1.2. Similarly, BREDL’s last
451
assertion concerningdeficienciesin the CAR is incorrect because DOE, not DCS,
will construct the waste pipeline to the F-Area outside the MFFF, so the CAR
need not include such information. Accordingly, these parts of the contention are
inadmissible. Unlike the portions of BREDL contention 1E alleging deficiencies
in the CAR, the portion of the contention asserting that the ER is deficient for
failing to address the environmental impacts of the proposed high-alpha liquid
waste stream pipeline meets the minimum requirements to be an admissible
contention. In this portionof its contention,BREDL notesthat page1-3 of the ER
indicates that a liquid waste pipeline will be constructed from the MFFF to the
DOE F-Area tank farm.See BREDL Contentions at 20. BREDL also asserts that
in January 2001 it formally requested DOE to analyze the impacts of the waste
stream in a supplemental EIS, and DOE refused.See id.at 19-20. BREDL then
claims that the impacts from the pipeline have never been analyzed as required
by NEPA.See id.at 20. Thus, like the admissible portion of GANE contention
11 asserting that neither DOE nor DCS has appropriately analyzed the impacts
of the high-alpha waste stream from the aqueous polishing process as required
by NEPA, this portion of BREDL contention 1E is also admissible for the same
reasons. Because of the similarity of the two issues, this portion of BREDL con-
tention 1E is consolidated with the admissible portion of GANE contention 11.
2. Contention Group 2: NRC Violations of NEPA
The second group of contentionsconsists of four parts labeled 2A through 2D.
The first contention asserts that ‘‘NRC failed to implement NEPA early in the
process by issuing a timely notice of intent to prepare an [EIS]’’ and failed to
consult with the Defense Nuclear Facilities Safety Board (DNFSB),
15 resulting
in bias in the scope of the proceeding in favor of DCS. BREDL Contentions at
21.16 BREDL relies on NEPA, 10 C.F.R. §§51.15(a), 51.25, and 51.26(a), and
Council on Environmental Quality (CEQ) regulations as the legal bases for the
contention, asserting that NRC should have issued a notice of intent to prepare
an EIS shortly after DOE prepared its SPD EIS record of decision (ROD), and
that it should have included input from the DNFSB in the ER.See id.at 21-22.
DCS asserts that this contention fails to raise any issues within the scope of this
proceeding and fails to provide a basis for its assertion that the Staff has violated
NEPA.See DCS BREDL Contention Response at 24-25. DCS, along with the
Staff, also argues that the contention is inadmissible because BREDL has failed
to articulate the necessary basis to establish any genuine dispute of law or fact.
See id.at 24; Staff Contention Response at 32 & n.41.
15TheDNFSB wascreatedby Congressto monitor DOE’snuclear facilities.See42 U.S.C.§§2286, 2286g(1994).
16In the original filing, this page was labeled as ‘‘1 of 30.’’ Because it falls in numeric sequence as page 21, we
refer to it as such.
452
BREDL has submitted an inadequate basis for the contention because it has
not identified a genuine dispute of material law or fact as required by section
2.714(b)(2)(iii).First, neithersection 51.26(a)northeapplicableCEQ regulations
specify any particular deadline for the publication of a notice of intent.
17 In any
event, the requisite notice was issued in March 2001, and BREDL does not detail
how the NRC failed ‘‘to provide a clear record of decision to provide an EIS.’’
BREDL Contentions at 25;see 66 Fed. Reg. 13,794 (Mar. 7, 2001). Similarly,
thereis norequirementthattheDNFSB beconsultedinthe NRC’s NEPA scoping
process. The language of 10 C.F.R. §51.28(a)(3)states:
The appropriate NRC staff director shall invite the following persons to participate in the
scoping process:
....
(3) Any other Federal agency which has jurisdiction by law or special expertise with
respect to any environmental impact involved or which is authorized to develop and enforce
environmental standards.
According to 42 U.S.C. §2286a(1), the mandate of the DNFSB is to ‘‘ensure
that public health and safety are adequately protected’’ by reviewing standards,
designs, operational data, and construction of facilities. Therefore, the DNFSB
has no obvious‘‘special expertise’’regardingenvironmentalmatters, and as such
was not required by the regulations to be invited to the Staff’s scoping meetings
on the EIS. Hence, BREDL fails to establish a basis as required by section
2.714(b)(2)(i) for that part of its contention claiming the DNFSB was illegally
excluded, and it has proffered no justification why such consultations would be
beneficial or shown that the DNFSB has ‘‘special expertise.’’
Contentions 2B through 2D are similarly flawed. Contention 2B states that
the ‘‘NRC and Applicant collaborated to identify the scope of the Environmental
Report outside of NEPA provisions, resulting in segmentation of the NEPA pro-
cess, which again benefits the Applicant in ways contrary to NEPA.’’ BREDL
Contentionsat21. As a factualbasisfor thiscontention,BREDL pointsto various
correspondence between DCS and the Staff regarding the scope of the ER and
EIS.See id.at 24. DCS and the Staff argue that this contentionis inadmissible be-
cause BREDL has failedto assert a genuineissue of materialfact or law.See DCS
BREDL Contention Response at 26; Staff Contention Response at 32 & n.42.
In contention 2B, BREDL fails to identify any provision in the regulations
that prohibits this type of communication between DCS and the Staff. Contrary
to BREDL’s assertion, 10 C.F.R. §51.40(a) ‘‘encourage[s]’’ the Staff to confer
1710 C.F.R. §51.26(a) states that
[w]henever the appropriate NRC staff director determines that an environmental impact statement will be
prepared by NRC in connection with a proposed action, a notice of intent will be prepared as provided in
§51.27 and will be published in the Federal Register as provided in §51.116, and an appropriate scoping
process (see §§51.27, 51.28, and 51.29) will be conducted.
453
with a prospective applicant before the ER is submitted. Accordingly, contention
2B raises no genuine issue of material law or fact as required by section
2.714(b)(2)(iii)and is inadmissible.
BREDL contention 2C alleges that the ‘‘NRC began a de facto NEPA staff
review before any time schedule for such review was published.’’ BREDL
Contentions at 21. As legal support, BREDL proffers CEQ regulations regarding
the timing for the commencement of an EIS, along with ‘‘10 C.F.R. Part 51,
Subpart A.’’See id.at 22. DCS and the Staff assert that the contention lacks
basis and specificity, and raises no genuine issue of material law or fact.See DCS
BREDL Contention Response at 26-27; Staff Contention Response at 32.
This contentionfails to meet the section 2.714(b)(2)(iii)requirement that a pe-
titioner assert a genuine issue of material law or fact with adequate basis and
specificity to support the claim. Contrary to BREDL’s assertion, 10 C.F.R.
§51.15(a) does not preclude the Staff from beginning a NEPA investigation
beforethe publicationof a schedule,stating only thatthe Staff ‘‘shall. . . establish
a time schedule for all or any constituent part of the NRC staff NEPA process,’’
to be followed to the ‘‘maximum extent practicable.’’ Nor has BREDL identified
any CEQ regulation that precludes the Staff’s actions. This contention is thus
inadmissible.
Contention 2D asserts that the ‘‘NRC changed its criteria for Environmental
Justice issues under NEPA without informing the public. . . .’’ BREDL Conten-
tions at 21. In support of the contention, BREDL submits that a December 11,
2000, letter to DCS from the Staff demonstrates a change in the NRC-defined
scope of the EIS in favor of DCS in violation of 10 C.F.R. §51.26(a), which
requires that the scope of an EIS be determined following the NEPA-mandated
scoping process.See id.at 27 & n.9. DCS and the Staff argue that there is
no genuine dispute of material fact or law alleged by the contention as required
by section 2.714(b)(2)(iii).See DCS BREDL Contention Response at 27; Staff
Contention Response at 32.
DCS and the Staff are correct that the contention is inadmissible. As noted by
DCS, the letter cited by BREDL indicates that the environmental justice criteria
were changed because of a factual error.
18 Thus, this contention fails to raise
a genuine issue of material fact or law as required by section 2.714(b)(2)(iii).
18See Letter from Melanie A. Galloway, Chief, Enrichment Section of the Division of Fuel Cycle Safety and
Safeguards, Special Projects Branch, NMSS, to Robert H. Ihde of DCS (Dec. 11, 2000), Attach. at 1-2. The letter
states, in pertinent part,
DCS has also requested guidance on whether to follow the Environmental Justice guidance in [the SRP]
. . . or the guidance provided as an attachment to the NRC letter dated 5/3/00. The SRP states that the
Description of the Affected Environment should include ‘‘[s]ocioeconomic information, including that for
low-income and minority populations within a 50 mile radius.’’ This dimension is incorrect. DCS should
follow the [NMSS] Policy and Procedures letter 1-50, Rev. 2, which states that ‘‘if the facility is located
outside the city limits or in a rural area, a 4 mile radius (50 square miles)should be used.’’
454
Moreover, BREDL has neither asserted nor described how such a purported
change in criteria would affect the DCS NEPA analysis.
3. Contention Group 3: Conflicts of Interest
This group of contentions has three parts, collectively labeled 3A through 3C.
The first contention in this group asserts that the ‘‘NRC has a Conflict of Interest
in this proceeding because it has received, receives, and pursues receiving DOE
funding to support licensing activities for the Russian MOX program ....’’
BREDL Contentions at 31. As the legal basis for this contention, BREDL cites
the ‘‘Energy Reorganization Act [of 1974].’’Id.DCS and the Staff submit that
the contention is inadmissible because it fails to assert an adequate basis and is
beyond the scope of the proceeding.See DCS BREDL Contention Response at
28; Staff Contention Response at 33-34. DCS and the Staff are correct. The issue
of the NRC’s involvement in the Russian MOX program is clearly beyond the
scope of the proceeding as set forth in the Commission’s Hearing Notice.See 66
Fed. Reg. at 19,996.
Contention3Bassertsthat‘‘NRChiredas itsNEPA contractoran organization
— Argonne National Laboratory (ANL) — with obvious conflicts of interest . . .
to conduct the EIS.’’ BREDL Contentions at 31. As a legal basis, BREDL refers
to a CEQ regulation, 40 C.F.R. §1506.5(c), which states that the lead agency
should choose a contractor with a cooperating agency to avoid any conflicts of
interest. Additionally, without an explanation of how it specifically relates to
the contention, BREDL also asserts as a legal basis the ‘‘Atomic Energy Act
of 1954. Section 2. Findings. (g)’’ which, according to BREDL, asserts that
‘‘[f]unds of the United States may be provided for the development and use
of atomic energy under conditions which will provide for the common defense
and security and promote the general welfare.’’Id.As the factual basis for the
contention, BREDL argues that ANL is a DOE-fundedand supervised laboratory
that operates within the jurisdiction of the Chicago Operations Office, ‘‘the
same office implementing the contract between DOE and [DCS].’’Id.at 33.
Additionally, ANL ‘‘received millions of dollars’’ in funding from DOE and
‘‘hasafederallyapprovedinstitutionalizedcommitmenttoadvancingthe causeof
nuclear power.’’Id.DCS and the Staff argue that this contention is inadmissible
for failing to raise a genuine issue of material fact or law or an issue that is within
the scope of this proceeding.See DCS BREDL Contention Response at 28; Staff
Contention Response at 33-34.
This contention lacks the necessary basis and specificity required by section
2.714(b)(2). BREDL has not cited any parts of the ER that it believes are
inaccurate due to the alleged bias of ANL. In addition, BREDL has not submitted
any expert affidavits or other documentary evidence in support of its position
regarding ‘‘the Applicant’s activities in pursuing a plutonium fuel economy that
455
contradicts U.S. policy.’’Id.at 31. BREDL states that it ‘‘intends to find one
or more experts to testify’’ in support of the contention ‘‘[i]f this contention
is accepted by the Panel.’’Id.A petitioner is required, however, to submit
supporting expert affidavits at the time of the submission of contentions.See
10 C.F.R. §2.714(b)(2)(ii). Additionally, bald assertions such as ‘‘[t]he fact that
ANL views itself as a supportingrole for DOE in and of itself should disqualify it
from the process,’’ fail to raise any issues or provide an adequate basis in support
of the contention.Id.at 34. Accordingly, contention 3B is inadmissible.
Contention 3C asserts that ‘‘[t]he Applicant has a clear conflict of interest in
termsof beinginvolvedwith U.S. foreign/nonproliferationpolicyand also having
avestedinterestinparalleleffortsinRussia....’’Id.at 31. In support, BREDL
references, without more, an unspecified ‘‘attachment.’’Id.DCS and the Staff
argue that the contention fails to raise a genuine dispute of law or fact and thus
is inadmissible.See DCS BREDL Contention Response at 29; Staff Contention
Response at 34.
This contention sets forth an issue beyond the scope of this proceeding.
Additionally, the contention has an inadequate legal or factual basis as required
in section 2.714(b)(2)(iii). Any issues pertaining to the federal government’s
nonproliferation policy clearly go to matters beyond the scope of the DCS CAR,
ER, or QAP. Moreover, mere reference to a document, without more, does not
provide an adequate basis for a contention.Calvert Cliffs,CLI-98-25, 48 NRC
at 348.
4. Contention Group 4: Qualifications
Group 4 consists of two contentions regarding the qualifications of the
NRC Staff, labeled 4A and 4B. The first contention reads ‘‘[t]he NRC lacks
the necessary expertise in the field of industrial-scale plutonium processing to
adequately determine whether public health and safety will be protected and to
issue a license assuring this.’’ BREDL Contentions at 35. The second contention
asserts that ‘‘[s]hortages in critical skills threatens [sic] to weaken NRC’s future
ability to protect public health and our environment.’’Id.As a legal basis for
both contentions, BREDL references ‘‘10 C.F.R. 70, Atomic Energy Act, and all
other previously cited regulations requiring NRC to protect health and safety.’’
Id.DCS and the Staff both claim that these contentions raise issues beyond the
scope of the proceeding.See DCS BREDL Contention Response at 29-30; Staff
Contention Response at 34-35.
Like GANE contention 4 challenging the competence of the NRC Staff, these
twocontentionsareinadmissibleforthe samereasons(seesupra pp.432-33).The
issue of the Staff’s competence is not litigable in agency licensing proceedings
and is clearly beyond the scope of the proceeding.
456
5. Contention Group 5: Unresolved Issue of Authority of Applicant To
Apply for and Hold License
This group of contentions consists of five parts, labeled 5A through 5E. The
first, second, and third contentions in this group each raise financial assurance
issues regarding DOE’s funding of the MFFF. Contention 5A declares that
‘‘[b]ecause DOE functions as the financial assurance entity, will own the MFFF,
it should either be the applicant or a co-applicant for the Construction License.’’
BREDL Contentionsat38. Thesecondcontentionstatesthat‘‘DOEisnotan[sic]
historically reliable source of financing.’’Id.As a result, according to BREDL’s
third contention, the ‘‘DOE contract with Applicant is a limiting factor in the
ability of the Applicant to meet NRC license requirements . . . and therefore is a
safety issue to be examined in this proceeding.’’Id.As a legal basis for all three
contentions,BREDL assertsthat‘‘YuccaMountaindoesprovideprecedence[sic]
for direct licensing of DOE,’’ and in addition, it asserts provisions of 10 C.F.R.
Part 70 regarding financial assurance.Id.With regard to contention 5A, DCS
asserts that the contention is beyond the scope of the proceeding because it fails
to identify any deficiencies in the CAR, ER, or QAP. According to DCS, the
contention also poses no genuine issue of law or fact because BREDL has not
provided any facts or expert opinion in support of the contention.See DCS
BREDL Contention Response at 30. The Staff argues that the contention is
inadmissiblebecause BREDL hasnot profferedanadequatelegal or factualbasis.
See Staff Contention Response at 35-36.
Contention 5A is inadmissible for failing to meet the basis requirement of
section 2.714(b)(2)(i). BREDL cites no statute or regulation requiring DOE to
be an applicant or co-applicant in this proceeding. Indeed, contrary to BREDL’s
claim, Congress has authorized DOE’s contractor to be licensed by the NRC.
See 42 U.S.C. §5842(5). Similarly, BREDL’s contention B has not provided
any ‘‘historical’’ information or evidence that supports its allegation that DOE
has been financially unreliable in the past, other than bald assertions such as
the MFFF ‘‘could be mothballed like many other DOE facilities in the past’’ if
the DCS contract extension renewal falls through and another contractor takes
over operation of the MFFF, and previous DOE contracts have involved ‘‘long
cost overruns and time delays.’’ BREDL Contentions at 40. More importantly,
because DCS is a government contractor and DOE funds the MFFF project
contract from funds appropriated from Congress, the contention, to the extent it
seeks to challenge DOE’s funding of DCS’s contract, seeks to raise issues clearly
beyond the scope of the proceeding.
A similar result must obtain for contention 5C. BREDL has failed to provide
an adequate explanation or any examples as to why the DOE contract with DCS
is a ‘‘limiting factor’’ that could contribute to health and safety issues at the
MFFF. For example, BREDL argues that the base contract awarded to DCS
457
only encompasses design and licensing activities and that DOE’s retention of
‘‘stop work’’ authority over the MFFF combined with the unilateral contract
extension provisions could ‘‘affect the safety and viability of the MFFF’’ if
a different contractor, unfamiliar with the design, construction, operation, or
decommissioning of the MFFF was commissioned to finish the project. BREDL
Contentions at 39. These aspects of the contract, according to BREDL, ‘‘add[] a
level of risk to the design and licensing process that constitutes a Configuration
Management and Quality Assurance safety issue to be examined’’ in light of
DOE’s ‘‘record of long cost overruns and time delays — [in which] obvious
‘cutting corners’ safety issues are raised.’’Id.at 39-40. Contention 5C is
inadmissible for lack of the requisite basis and specificity required by section
2.714(b)(2). BREDL neglects to describe or append the contract provisions at
issue or explain why they would be limiting factors that could cause health
and safety issues at the MFFF. Additionally, BREDL fails to provide examples
of ‘‘cost-cutting’’ measures that should be examined in this proceeding, nor
does it provide expert testimony or other support for the potential health and
safety risks that could result from cutting corners. BREDL’s assertions that it
‘‘intends to find one or more experts’’ in the areas of high-consequence safety
operations, the economics of deactivation, and federal budgeting,id.at 38, do not
meet the contention pleading requirements that require adequate support for each
contentionat the time it is filed.See 10 C.F.R. §2.714(b)(2)(ii).Accordingly,this
contention is inadmissible.
Contentions 5D and 5E state, respectively, that the ‘‘Applicant is financially
obligated to pay the costs of deactivation above and beyond DOE’s allowance of
$10 million, but has yet to provide financial assurance,’’ and that the ‘‘Applicant
is presently liable to being held in Breach of Contract, which adds further
uncertainty to the project.’’ BREDL Contentions at 38. BREDL again asserts
as its legal basis for the last two contentions the ‘‘Yucca Mountain precedence
[sic],’’ and 10 C.F.R. Part 70.Id.
Contention5Disinadmissiblebecauseitfailstosatisfythebasisandspecificity
requirementsof section2.714(b)(2).BREDL furnishesno factualor othersupport
for its assertion that $10 million is insufficient for deactivation of the MFFF or its
claim that DCS has only considered a ‘‘nearly flawless operation[] and a simple
deactivationprocess,anassumptionthatdefiestherecordofplutoniumprocessing
facilities.’’Id.at 40. Nor does BREDL explain how informationfrom the records
of other plutonium plants would demonstrate that there may be such problems
in the future at SRS. The only purported support set forth by BREDL is that
of ‘‘recent reports in nuclear trade journals’’ and an asserted ‘‘legally required
cost-report on plutonium disposition’’ that BREDL alleges was concealed from
Congress by DOE.Id.at 40-41. As noted before, mere citation to a document
without an adequate explanation of how such information substantiates the issue
statement is inadequate to support a contention.See Calvert Cliffs,CLI-98-25,
458
48 NRC at 348. As such, the contention is inadmissible for lack of basis and
specificity.
Withrespectto contention5E,BREDL againhasfailedto set forthanadequate
legalorfactualbasisforits contentionasrequiredbysection2.714(b)(2).BREDL
asserts that ‘‘the Applicant could easily be held in breach of contract because
of the lack of a contract modification since the alleged withdrawal of Virginia
ElectricPowerCompanyfromitsroleinprovidingirradiationservicesatitsNorth
Anna Unit 1 and North Anna Unit 2 nuclear reactors.’’ BREDL Contentions at
41. BREDL then purports to quote the contract, stating that:
The Contractor may only propose to replace a mission reactor if: (1) the reactor has been
shutdown [sic] for economic reasons; or (2) the NRC or the utility company has required the
reactor to be shut down for safety reasons, and in either case, the shutdown will preclude
accomplishment of the plutonium disposition mission schedule. Failure of the Contractor
to provide an approved replacement mission reactor sufficient to accomplish the plutonium
disposition mission schedule shall be considered a breach of this contract.
BREDL Contentions at 41. BREDL suggests that DCS ‘‘declined to identify this
to the NRC in the CAR and associated documents’’ and that a breach of contract
would ‘‘add[] further uncertainty to the [MFFF] project.’’Id.at 38, 41.
Nowhere in its recitation does BREDL point out concrete details that support
its notion that the purported breach of contract adds uncertainty. Nor does
BREDL provide expert affidavits or other evidence to demonstrate how a breach
of contract would affect the MFFF. Indeed, it appears from the language quoted
by BREDL that any actionable breach of contract flows only from the failure to
provide replacement reactors, and BREDL has not alleged that DCS has failed to
providereplacementreactors. Moreover,itis unclearwhattheterm‘‘uncertainty’’
means in this context because BREDL provides no facts describing a health or
safety risk that could occur because of such breach. Accordingly, this contention
is inadmissible for failing to meet the requirements of section 2.714(b)(2).
6. Contention Group 6: Compliance Reporting
This ‘‘group’’ consists of only one contention, labeled 6A. BREDL argues
that ‘‘[t]he applicant failed to identify and describe its environmental and
safety compliance record to NRC,’’ and ‘‘[i]nstead, DCS described the
regulatory compliance history of the Savannah River Site Operating Contractor
Westinghouse Savannah River Site.’’Id.at 42. As a legal basis, BREDL
quotes fully the text of 10 C.F.R. §51.45(d), and requests ‘‘[f]ull disclosure
of the environmental, safety, and health compliance records of all major and
minor partners in DCS.’’Id.DCS asserts that BREDL’s reading of section
51.45(d) evidences a ‘‘misunderstanding’’ of the regulation.See DCS BREDL
Contention Response at 33-34. The Staff asserts that there is no factual basis for
459
the contention and that the contention is beyond the scope of the proceeding.See
Staff Contention Response at 36-37.
The contention fails to satisfy the requirements of section 2.714(b)(2)(iii)
because there is no genuine issue of material fact or law in dispute. BREDL has
simply misapprehended section 51.45(d), which states in pertinent part that:
The environmental report shall list all Federal permits, licenses, approvals and other
entitlements which must be obtained in connection with the proposed action and shall describe
the status of compliance with these requirements. The environmental report shall also include
a discussion of the status of compliance with these requirements.
It is clear that section 51.45(d) contains no requirement for DCS to provide
informationregardingitsownorotherentities’statusofcompliancewithactivities
orprojectsunrelatedtotheMOXfacility,andBREDLhasnotprofferedaplausible
alternative legal interpretation. Thus, the contention is inadmissible.
7. Contention Group 7: Plutonium-Fueled Reactor Hazards
This contention is structured differently from the rest of the contentions
submitted by BREDL. It consists of several paragraphs of background facts
relating to ‘‘nuclear reactor safety issues,’’ which are followed by attachments
totalingovertwentypagesofmaterialdescribingNRCperformancereviews,news
articles, and press releases regarding the Duke Catawba and McGuire reactors.
See BREDL Contentions at 42-69.
19 DCS and the Staff argue that this contention
is beyond the scope of this proceeding.See DCS BREDL Contention Response
at 35-36; Staff Contention Response at 37-38.
Like GANE contention 7 (see supra pp. 440-41), this contention is beyond
the scope of the proceeding. As previously discussed, the environmental impacts
of the irradiation of MOX fuel in mission reactors will be addressed in later
license amendment proceedings regarding the McGuire and Catawba reactors.
Accordingly, the contention is inadmissible.
8. Contention Group 8: Department of Energy NEPA Violations (Outside
of Waste Management at MFFF)
This group consists of six separate contentions labeled 8A through 8F, all
of which address certain aspects of DOE’s NEPA evaluations regarding the
plutonium disposition program.See BREDL Contentions at 70. The first
contention alleges that DOE has failed to implement provisions in the PEIS.
Specifically, BREDL states that DOE has failed to upgrade plutonium pit storage
19There are two pages numbered 42 in the Petitioners’ contention filing.
460
at the Pantex Nuclear Weapons Plant, and has failed to provide for long-term
storage of nonpit plutonium at the SRS.See id.Contention 8B asserts that
‘‘DOE irreparably biased the SPD EIS towards MOX through the premature
solicitation of a MOX contractor.’’Id.Contention 8C alleges that ‘‘DOE has
abandoned its [ROD] for the SPD EIS and has failed to issue a supplemental
EIS to evaluate the impacts of major changes in addition to the liquid radwaste
stream at the MFFF.’’Id.Contention 8D submits that ‘‘the Plutonium fuel/MOX
option greatly increases the risk of plutonium theft, diversion, and reuse and
DOE greatly underestimated the risk of nuclear explosives being developed from
reactor plutonium.’’Id.Contention 8E asserts that ‘‘DOE failed to identify the
dual-use nature of both the PDCF and the MFFF, and both facilities have the
potential to be converted into use for plutonium pit fabrication.’’Id.Finally,
the last contention alleges that ‘‘DOE’s analysis failed to identify or greatly
understated the real hazards of plutonium processing.’’Id.As a legal basis
for all six contentions, BREDL asserts ‘‘[t]he entirety of NEPA, but particularly
those sections involving adequate analysis, supplemental environmental impact
statements,useofaccurateinformation,publicparticipationrequirements,limited
actions before a decision, prejudicial behavior, and triggering mechanisms for
NEPA analysis.’’Id.at 70-71. No expert affidavits are offered, and the main
factual support for these contentions is citations to various pages of a February 6,
2001, article entitled ‘‘Plutonium: The Last Five Years,’’ written by Mr. Moniak.
See id.at 71. In addition, for contention 8A, BREDL relies on certain portions of
its earlier May 18, 2001, intervention petition.See id.DCS and the Staff argue
that the contentions are beyond the scope of this proceeding.See DCS BREDL
Contention Response at 37-40; Staff Contention Response at 39.
As DCS and the Staff argue, these contentions are clearly beyond the scope
of the proceeding. All of these contentions suggest a defect in the DOE NEPA
process. As previously explained with respect to GANE contention 10, alleging
inadequaciesregarding the DOE SPD EIS (see supra pp. 441-42),such issues are
not litigable in this proceeding because DCS, not DOE, is the Applicant, and it is
the DCS CAR, ER, and QAP that are under scrutiny in this proceeding, not the
DOE SPD EIS.
9. Contention Group 9: Inadequate Radiological Protection of Public
This contention group consists of two contentions, 9A and 9B. Contention
9A claims that the ‘‘Applicant used inappropriate control area boundaries and
therefore mischaracterized members of the public as occupationally exposed
workers.’’ BREDL Contentions at 72. Contention 9B states that the ‘‘applicant
failed to submit an Emergency Management Plan for the MFFF because of the
inappropriate definition of a control area.’’Id.As a legal basis, BREDL cites 10
461
C.F.R. §§20.1003 and 70.61(f). Section 20.1003, as noted by BREDL, defines
‘‘public dose’’ as
the dose received by a member of the public from exposure to radiation or radioactive material
released by a licensee, or to any other source of radiation under the control of the licensee.
Public dose does not include occupational dose or doses received from background radiation,
from any medical administration the individual has received, from exposure to individuals
administeredradioactivematerial...orfromvoluntaryparticipationinmedicalresearch
programs.
Similarly, ‘‘occupationaldose’’ is defined as
the dose received by an individual in the course of employment in which the individual’s
assigned duties involve exposure to radiation or radioactive material from licensed and
unlicensed sources of radiation, whether in the possession of the licensee or other person.
Occupational dose does not include dose received from background radiation, from any
medical administration the individual has received, from exposure to individuals administered
radioactive materials . . . from voluntary participation in medical research programs, or as a
member of the public.
Based on these definitions, BREDL asserts that DCS incorrectly defined its
control area as being the entire SRS, an area that even DOE has difficulty
protecting from trespassers. This is because the control area includes a road
open to public travel, a hurricane evacuation route, a CSX railroad line, and the
Three Rivers Regional Landfill and Recycling Center.See BREDL Contentions
at 72-73.
DCSarguesthatthecontentionsareanimproperchallengetoNRCregulations,
and that there is no basis for the claims made with respect to the DOE-controlled
area. According to DCS, DOE currently controls access to the SRS and DCS will
be establishing a ‘‘protocol’’ with DOE that will integrate the MFFF with the
existing SRS control plan to limit access to the SRS in an emergency.See DCS
BREDL Contention Response at 40-42. The Staff agrees with DCS that both
contentions are inadmissible for lack of basis.See Staff Contention Response at
39-41.
Contention9Ais essentiallythesameasGANEcontention5whichhasalready
been admitted to the proceeding. For the same reasons (see supra pp. 434-36),
this contention is admitted and is consolidated with GANE contention 5.
Contention 9B, on the other hand, is inadmissible because it is premature,
and hence beyond the scope of this construction authorization proceeding. The
asserted basis for the contention is DCS’s claim that an emergency plan is
not necessary.See BREDL Contentions at 73. Thus, BREDL is, in effect,
asserting that DCS has failed to submit an emergency plan because DCS has
mischaracterized the controlled area as the entire SRS and, according to BREDL,
a properly characterized controlled area would require DCS to file an emergency
462
plan. Even if BREDL is correct, however, 10 C.F.R. §70.22(i)(1)(ii) does not
require the submission of an emergency plan until DCS files an application for
a possession and use license. Accordingly, BREDL will have the opportunity to
intervene and submit a contention on the issue of whether or not DCS is required
to submit an emergency plan for the MFFF in a future proceeding on DCS’s
application for a possession and use license.
10. Contention Group 10: Lack of Complete and Accurate Information
BREDL’s final group consists of three contentions, labeled 10A through 10C,
each alleging deficiencies in the DCS license application.Contentions 10A and
10B declare that the ‘‘Applicant failed to submit detailed information sufficient
for fact checking and analysis of the proposal,’’ and that the CAR is filled with
‘‘dead-end references.’’ BREDL Contentions at 74. As a result, contention 10C
indicates that the ‘‘Applicant has displayed a clear intent to minimally cooperate
withNRC.’’Id.BREDL citesasits legalbasis10C.F.R. §70.9(a),whichrequires
that all information from the Applicant ‘‘be complete and accurate in all material
respects.’’Id.BREDL’s purported factual bases for contentions 10A, 10B, and
10C consist of some seventeen statements labeled ‘‘a through d’’ and ‘‘b through
l’’ without any designation as to which contentions the various letter-designated
statements apply. In general, these assertions make broad statements such as
‘‘the Applicant is contractually obligated to DOE to minimize the amount of
new information for the process and optimize use of old information,’’ and ‘‘the
Applicant submitted a CAR characterized primarily by lack of detail,’’ as shown
by the fact that the NRC Staff submittedan 86-pageRAI involving239 questions.
Id.DCS arguesthatthecontentionsareinadmissiblebecausetheydonotraiseany
genuine issues of material law or fact.See DCS BREDL Contention Response
at 42-53. For its part, the Staff claims, in effect, that the contentions all lack
adequate bases.See Staff Contention Response at 41-43.
All three of the contentions in this group are inadmissible because they are
nothing more than vague assertions based on broad generalizations. As such, all
the contentions contravene 10 C.F.R.§2.714(b)(2). Moreover, BREDL fails to
provideadequatesupportforitsissuestatementsbyfailingproperlytoidentifyand
explain the significance of the inadequacies in documents submitted by DCS to
the Staff in supportof the CAR. For example, BREDL asserts thatthe ‘‘Applicant
failed to identify the historic deep boreholes in the area,’’ but fails to provide any
supporting documentationor explanation as to why this information is important.
BREDL Contentions at 76. Even when BREDL purports to specify supporting
material, it is incompletely cited. For example, BREDL refers to ‘‘[i]nformation
provided by SRS NNSA Administrator Sterling Franks during a July 9, 2001
Tour of SRS’’ as its sole source for the assertion that ‘‘DOE is actively reviewing
potential MOX feedstock options to compensate for the delay in the PDCF.’’Id.
463
at 75 & n.3;see 10 C.F.R. §2.714(b)(2)(ii). Accordingly, contentions 10A, 10B,
and 10C are inadmissible.
C. EI’s Contentions
EI filed a total of twenty-two contentions, labeled A through V. Contentions
A through F were submitted as part of its May 18, 2001, request for hearing,
and contentions G through V were filed as an August 13, 2001, amendment to
the original petition.See EI Petition at 7-8; EI Contentions at 2-6. With minor
exception, all of EI’s contentions consist of a single short paragraph beginning
with an abbreviatedstatement of a purportedissue, followed by one or more brief
sentences. The purported legal basis appears in contention V, stating that ‘‘[a]ll
the contentions relate to the NEPA while a majority of them also relate to the
Atomic Energy Act (AEA), since most of them are concerned with radiation’s
effect on people.’’
20 El Contentions at 6. Additionally, in contention V, EI
indicates that an attached map of a 1974 accidental tritium gas release at one of
the DOE SRS facilities supports contentions M, O, P, U, and W, although none
of EI’s pleadings contain a contention W.See EI Contentions at 6;id.,Attach. EI
provides no affidavits of experts in support of any of its contentions.
Due to the similarity of subject matter of many of the contentions, there is no
needto unnecessarilylengthenthisdecisionfurtherbyaddressingeachcontention
individually. Therefore, the contentions are addressed in five groups. In general,
DCS andthe Staff agree thatEI’scontentionsare all inadmissibleforlack of basis
and specificity.See DCS EI Contention Response at 17-36; Staff Contention
Response at 43-53.
1. Contentions A, B, C, G, O, and P — Other Facilities
ThecommondenominatorforcontentionsA,B,C,G,O,andPisEI’sassertion
that information from previous NRC proceedings and/or other facilities should
be utilized by DCS in the CAR and/or ER. Initially, contention A asserts that
‘‘[t]here is a lack of information regarding operations similar to those planned by
20In full, contention V states:
The attached map supports EI’s contentions M, O, P, U, W, and the Affidavit of Basil Garzia.
All the Contentions relate to the NEPA while a majority of them also relate to the [AEA] since most of them
are concerned with radiation’s effect on people.
The unavailability of a Safety Analysis Report and an Environmental Impact Statement related to the MOX
Facility and the MOX project done by the Nuclear Regulatory Commission (NRC) is of concern to E.I. In
its May 18th Petition [sic] to Intervene, E.I. called attentiontotherebeingaNEEDFORTHENRCto
‘‘prepare its own ‘detailed statement’ of environmental costs, benefits and alternatives’’, (See paragraph
[sic] 6 and 7 of Petition)
EI Contentions at 6.
464
the Applicants.’’ EI Petition at 7. It proffers the example that ‘‘the Nuclear Fuel
Services plant in West Valley, New York is not discussed and yet this facility
reclaimed uranium and plutonium from spent nuclear fuel for use in Mixed-oxide
fuel,’’ while ‘‘the Applicants chose instead references which depended heavily
on predictions and estimates rather than real operating experience.’’Id.
Contention A is inadmissible for failing to meet the basis and specificity
requirements of section 2.714(b)(2). There is no regulatory requirement that
an applicant discuss all potentially relevant historical material that has been
submitted to the NRC by other applicants. Further, EI does not specify what
information from the West Valley reprocessing facility proceeding has potential
relevance to this MOX proceeding. Nor does EI specify the information that is
allegedly absent from the CAR or ER that should be included. Rather, EI merely
states that ‘‘many of the areas of concern being faced by the Applicants is [sic]
available from a number of sources, including the transcriptof the NRC licensing
proceedings held between 1973 and 1976.’’Id.As previously noted, a simple
reference to a large number of documents does not provide a sufficient basis for
a contention.See Calvert Cliffs,CLI-98-25, 48 NRC at 348. At a minimum, an
intervenor is obligated to clearly reference and then summarize the information
being relied upon.See 10 C.F.R. §2.714(b)(2)(ii).
Contentions B, C, and G, are similar in content to contention A. They state
that DCS’s CAR and ER are deficient for failing to consider other ‘‘relevant
material,’’but,like contentionA,fail tonotespecificallywhatismissingandhow
this deficiencyaffects any particularsafety or environmentalconcern. Contention
B declares that the ‘‘Applicants failed to make use of the evidence contained
in the transcripts of the Barnwell Nuclear Fuel Plant, a uranium and plutonium
recovery facility planned by Allied General Nuclear Services,’’ of which ‘‘an
extensive record of evidence exists regarding a majority of the same issues now
being considered.’’ EI Petition at 7. Contention C maintains that the ‘‘Applicants
don’t use evidence from the transcripts of licensing proceedings related to the
two Duke nuclear plants, which have been proposed for MOX fuel use.’’Id.
Lastly, contention G asserts that DCS has inadequately evaluated the health
effectsonthe ‘‘localpopulation’’from‘‘routineoperation’’of the MFFFbecause
it has not considered the relevant evidence contained in the transcripts regarding
AlliedGeneral’sproposeduraniumandplutoniumrecoveryfacilitythatcontained
‘‘sources of information which have been tested by cross-examination.’’ EI
Contentions at 2. As was the case with contention A, contentions B, C, and G are
inadmissible for failing to meet the basis and specificity requirements of section
2.714(b)(2).
Similarly, in contentions O and P, EI asserts that the DCS CAR and ER
fail to satisfy NEPA requirements because DCS should consider findings and
experiences of facilities similar to the MFFF. In this regard, contention O claims
that the ‘‘Applicants fail to explain fully what equipment is required in terms of
465
overcoming the accidents, leaks, worker exposures or exposure to the public,’’
andshouldhaveconsideredsimilareventsatWestValley,SRS,theWestinghouse
plant in South Carolina, and Cogema in France.Id.at 4. Similarly, contention
P states that the Applicant has not explained how the existing evidence from
Cogema has been factored into the evaluation of health effects as a result of
normal operations or accidents.See id.
Bothcontentionsareinadmissibleforfailingtomeettherequirementsofsection
2.714(b)(2). With respect to contention O, EI fails to reference the portions of
the DCS ER and CAR that are allegedly inadequate. Further, the relevance of
the relationship between the DCS MOX facility and the other facilities, and the
supposed safety significance of the missing information is not established by the
contention. Nor is there any explanation in the contention of the relevance of the
attached map that traces tritium gas releases during an accident at the SRS. Thus,
contention O is inadmissible.
For similar reasons, contention P fails to meet the section 2.714(b)(2)(iii)
admissibility requirements. EI does not specify the portions of the documents
that it believes are inadequate in claiming that Cogema experiences should have
‘‘been factored into [DCS’s] evaluation of health effects.’’Id.EI is required by
therulesto‘‘includereferencestothespecificportionsoftheapplication... [and]
the identification of each failure and the supporting reasons for the petitioner’s
belief,’’ 10 C.F.R. §2.714(b)(2)(iii), which EI has not done. Accordingly,
contention P is inadmissible.
2. Contentions D, E, and M — Financial Assurance
Contentions D, E, and M concern issues regarding the financial effects of the
MFFF on the residents of South Carolina. Contention D asserts that DCS has not
consideredthe 1966 findingsof the National Academy of Sciences Committee on
GeologicAspectsofRadioactiveWasteDisposalorthereviewsfromthe1970sby
geologistswith the UnitedStates GeologicalSurvey. Accordingto EI, ‘‘[w]ithout
consideration of these findings, it is not possible to estimate the economic losses
which could result from approval being given to the [DCS] CAR.’’ EI Petition at
8. Contention D is inadmissible for failing to state an adequate basis as required
by section 2.714(b)(2)(i). In the contention, EI fails to indicate what parts of the
above-mentioneddocumentsarerelevantorprovideanyexplanationofwhythese
materials are relevant.
Contention E asserts that the Applicant has ‘‘failed to look at the possible
outcomes of their facility from the viewpoint of business owners in the State . . .
and have not adequately addressed other financialissues and questions.’’Id.This
contention also fails to meet the basis requirement of section 2.714(b)(2)(i). EI
provides no reference to any regulations that are applicable, nor points to any
portion of the CAR or ER that are allegedly deficient. Nor has EI proffered
466
sufficient facts or expert opinion to support the contention. Its two simple
statementsassertingthat ‘‘[s]ome[effects]maybe closeto the proposedfacilities,
others along routes over which radioactive shipments travel,’’ and that DCS
‘‘ha[s] not adequately addressed other financial issues and questions,’’id.,are
woefully inadequate to meet the contention pleading requirements.
Contention M claims that the
Applicants’ evaluation ofthepossible andactual detrimental effects toSouthCarolina residents
from the proposed MOX Facility, in terms of environmental harm, damaged health, safety
problems, financial and business losses, is invalid because full consideration has not been
given to South Carolina’s unique situation of having all the fresh MOX fuel shipments taking
place within its border. . . . This defect in both the CAR and ER is of particular significance in
relation to the terrorist issue.
EI Contentions at 3. In support of this contention, EI asserts that the National
Academy of Sciences warned in its 1995 report on the ‘‘Management and
Disposition of Excess Weapons Plutonium’’ that if significant portions of fresh
fuel are mobilized as particulate matter, the public health risks would be
substantial.See id.Additionally, an attached map is claimed to support the
contention.See id.at 6.
Contention M is also inadmissible. EI has referenced no specific provisions
in the ER or CAR that it asserts are inadequate or incorrect as required by
section 2.714(b)(2)(ii). Although the contention indicates that there will be
‘‘environmental harm, damaged health, safety problems, and financial and
business losses,’’ EI neglects to describe these harms or explain how they arise
from the construction of the MFFF, as required to establish an adequate basis
pursuant to section 2.714(b)(2)(i).See id.at 3. This is also the case with respect
to EI’s mention of ‘‘the terrorist issue.’’ Moreover, EI’s citation to a study
performedbythe NationalAcademyofSciencesandan attachedmap failstosave
the contention because it fails to indicate why the study or the map is relevant to
the contention.
3. Contentions F, K, R, V, and Q — DOE EISs
Contentions F, K, R, V, and Q are grouped together due to their similarity
in raising issues concerning DOE’s various EISs. Contention F refers to the
‘‘4-pagesection onTransportation’’containedin the ER, andallegesthattheonly
reference identified by DCS is the DOE SPD EIS. EI Petition at 8. EI contends
that‘‘[t]hispracticeof usingthe reportsof the agencypromotinga nuclearproject
has been going on for years’’ and ‘‘[i]n this case, the Applicants are limiting the
information used to what the DOE has to use as the basis of its decisions.’’Id.EI
asserts that the DOE EIS is ‘‘defective’’ because it relies ‘‘heavily’’ on its own
reports and those done by Westinghouse and other DOE contractors.See id.
467
Contention F is inadmissible. As explained previously (see supra p. 424),
agency regulations expressly allow the use of previously prepared EISs by other
agencies. Thus, any challenge to a MOX-related DOE EIS is beyond the scope
of this proceeding. For the same reasons, contentions K and R are inadmissible.
Contention K states, in pertinent part, that ‘‘[t]he piece-meal approach taken in
the overall project of disposing of excess weapons plutonium by removing the
pits from nuclear bombs . . . has resulted in one of the numerous examples of
the Applicants failing to comply with the National Environmental Policy Act
(NEPA).’’ EI Contentions at 2. Contention R claims that ‘‘[t]here is no section in
eithertheERorCARwhichidentifiesthespecificbenefitsandcostsoffabricating
MOXfuelnoroftheoverallplanofdisposingofexcessweaponsplutonium. .. .’’
Id.at 5. DOE, however, has already addressed the issue of alternatives to the
MFFF in its SPD EIS. Thus, these contentions are all beyond the scope of the
proceeding.
Contention Q also seeks to raise an issue beyond the scope of the proceeding.
Inthiscontention,EIstatesthat‘‘[t]heApplicants,inSection4.4Hydrologyofthe
ER, have failed to demonstrate that radionuclides leaked from the MOX Facility
or some related operation could not migrate downward to the aquifers,’’ because
DCS is ‘‘depending on the liquid effluent system of the Department of Energy’s
(DOE),’’ which ‘‘system has not been through the NRC’s licensing process.’’Id.
at 5. As indicated with respect to BREDL contention 1A (see supra p. 449), DCS
is authorized to transfer waste to DOE pursuant to 10 C.F.R. §§20.2001(a)(1)
and 70.42(b)(1). Thus, there is no violation by DCS in transferring waste from
the MOX facility. Furthermore, the ER addresses the potential for radionuclide
impacts to groundwater and concludes no radionuclide wastes from the MFFF
will be released to the environment from normal operations.See ER at 5-11.
Finally, asalreadynotedin regardto contentionsF, K, andR, the issues addressed
inpreviousDOEEISsarebeyondthescope ofthisproceeding.Hence, thegeneral
issue of waste at the SRS as raised by contention Q is beyond the scope of the
proceeding because it is addressed in the DOE EISs.
For similar reasons, contention V fails to meet the admissibility requirements
of section 2.714(b)(2)(iii).As previously noted (see supra note 20), contention V
expresses concern over the unavailability of the Staff EIS and SAR at this point
in the proceeding. As the Commission stated in its Notice of Hearing, however,
the ‘‘[p]etitioners will not be permitted to wait for the NRC staff to issue its
safety evaluation report or environmental impact statement before formulating
contentions.’’ 66 Fed. Reg. at 19,996. Accordingly, contention V does not raise a
litigable issue within the scope of the proceeding, and it is inadmissible.
468
4. Contentions H, N, S, T, and U — Potential Health Effects
These five contentions outline purported inadequacies in the CAR and ER
regarding alleged potential health effects from the MFFF. In contention H, EI
asserts that the ‘‘Applicants’ evaluation of the health effects to local populations
...isinvalidbecause the assumptions made in regard to the use of HEPA filters
in Appendix F, Section F.5 and F.6 do not meet the guidelines of the NRC.’’ EI
Contentions at 2. This contention is inadmissible because it lacks an adequate
basis as required by section 2.714(b)(2)(i). Not only does the contention neglect
to identifywhat NRC regulationsorguidelinesDCS has allegedlyviolated,it also
fails to explainwhy the challengedDCS assumptionsdo not‘‘meetthe guidelines
of the NRC.’’Id.
ContentionN claims thatthe‘‘Applicants’evaluationofthe healtheffecttothe
local populationfromroutine operationof the MOX Facility is invalid becauseits
ER fails to give adequate attention to the pathways by which groundwater could
become contaminated due to such unsuitable geological conditions of the SRS
area as having a shallow water table or as a result of SRS activities in the past.’’
Id.at 3. EI suggests that the Applicant should have relied upon the findingsin the
1967 United States Department of the Interior study ‘‘Geology and Groundwater
of the SRP and Vicinity, SC’’ and the 1966 NAC reporton ‘‘Geologic Aspects of
Radioactive Waste Disposal,’’ which were both prepared for the Atomic Energy
Commission.See id.at 3-4. The last part of the contention maintains that neither
DOE nor DCS has complied with NEPA because they have not fully considered
alternatives for locating the MOX facility elsewhere or alternative methods of
disposing of weapons-grade plutonium.See id.at 4.
Eachof the three issues raised bycontentionN are unsupportedby an adequate
basis. With regard to the first part of the contention asserting that DCS’s ER
fails to give adequate attention to the health effects from the MOX facility, EI
does not identify either the sections of the ER that it challenges or the NEPA
provisions that allegedly have been violated by DCS. Moreover, no detrimental
health effects created by contaminated groundwater are described in relation
to the purported inadequacies in the ER. With respect to the allegation that
the ER fails to give adequate attention to groundwater pathways, EI provides
no specifics, just generalities. Thus, the first part of the contention lacks the
required basis and specificity required by section 2.714(b)(2). With respect to
the second part of the contention concerning DCS’s failure to consider the 1967
Department of the Interior study or the 1966 NAC report, EI makes no showing
as to why these materials are relevant to this contention or what material from
the documents should be included in the DCS ER. Indeed, EI does not even
identify the meaning of the acronym ‘‘NAC’’ in one of the references. Further,
there is no NEPA or agency regulatory requirement to include every relevant
document or piece of information in an environmental report. And contrary to
469
EI’s assertion, DCS has discussed groundwater in its ER.See ER at 5-10 to 5-11.
Without an explanation why the ER is inaccurate, this part of the contention fails
to establish a genuine issue of material fact or law in dispute.See 10 C.F.R.
§2.714(b)(2)(iii).Lastly, alternatives to MOX fuel use and alternate locations for
the MOX facility are addressed in the DOE SPD EIS, and thus are beyond the
scope of the proceeding. Hence, no parts of the contention satisfy the pleading
requirements for contentions. Accordingly, contention N is inadmissible.
Contention S states that DCS has failed in the ER to take into account that
children and babies suffer more health damage from radiation exposure than
adults, pointing to section 5.2.10.1 of the ER to demonstrate the absence of such
consideration. EI alleges that ‘‘[t]his along with numerous other defects in the
Applicants reports make their evaluations of the health impacts from the MOX
facility invalid.’’ EI Contentions at 5. Similarly, contention T claims that the ER
is inadequate because it ‘‘fail[s] to take into consideration that there are members
of the public who spend time/or travel within the SRS boundaries,’’ citing ER
§5.2.10.2.Id.
Both of these contentions are inadmissible as failing to meet section
2.714(b)(2)(ii) and (iii) requirements.With respect to contention S, EI fails
to demonstrate through any expert opinion or supporting documentation that
children and babies suffer more damage than do adults. Further, based on the
location of the MFFF within the SRS (see supra p. 410), EI has notindicated why
children and babies should be considered in such a dose calculation. Moreover,
EI has not provided any support to demonstrate that DCS has performed the dose
calculations incorrectly. Finally, it is also unclear what ‘‘other defects in the
Applicant’sreports’’havecausedallegederrorsintheDCSER.Id.at5. Similarly,
in connection with contention T, EI fails to provide any expert opinion or any
other supporting documentation to show that people who spend time or travel
through the SRS are more adversely affected than other individuals or proffer
any evidence demonstrating why the DCS analysis is inaccurate. Therefore,
contentions S and T are inadmissible.
EI’s contention U states that the ‘‘lack of coverage on the subject of fires and
their potential for spreading radioactive particulate matter is a flaw which makes
the Applicants’ evaluations of safety and health impacts invalid. This ties in with
the deficiencies regarding emergency planning . . . .’’Id.at 5-6. The portion of
the contention dealing with the issue of fires lacks an adequate basis as required
by section 2.714(b)(2)(i). EI has failed to provide any information outlining why
an accident involving fire is not bounded by the accidents already analyzed by
DCS in theER. Theportionof thecontentionconcerning‘‘emergencyplanning,’’
seeks to raise an issue beyond the scope of the proceeding. In this regard, the
contention is similar to BREDL contention 9B in that it indicates that DCS is
required to submit an emergencyplan for a construction authorizationlicense. As
noted earlier, however (see supra pp. 462-63), if an emergency plan is necessary,
470
it need not be filed until DCS files an applicationfor a possession and use license.
Accordingly, this contention is inadmissible.See 10 C.F.R. §70.22(i)(1)(ii).
5. Contentions I, J, and L — Cumulative Effects at SRS
These three contentions assert inadequacies in DCS’s consideration of the
cumulative effects of radioactivity at SRS. In contention I, EI asserts that the
CAR and ER ‘‘fail to adequately consider the long-term effects of the MOX
facility’’ because the ‘‘impacts of decontamination and decommissioning are
omitted.’’ EI Contentions at 2. EI cites to section 5.6.1 of the CAR as
support for the contention. This section entitled ‘‘Description of Principal SSCs
and Required Support Systems,’’ has no apparent connection, however, with
the subject of decommissioning, and EI has not provided an explanation to
establish such a relationship. Indeed, the DCS ER does not even discuss the
topic of decommissioning because, as noted in the ER, DOE rather than DCS
is responsible for the decommissioning of the MFFF.See ER at 5-20 to 5-21.
Additionally,EI has notproducedany evidenceor expertopinionto show thatthe
‘‘deactivation’’ of the MFFF contributes to the long-term effects of the facility.
Merely stating that DCS failed to ‘‘adequately consider’’ long-term effects is not
enough to satisfy the basis and specificity requirements of section 2.714(b)(2).
Accordingly, the contention is inadmissible.
Muchlike contentionI, contentionJ claimsthat the DCS evaluationof impacts
on the health of local residents is invalid due to inadequate consideration of
the cumulative effects of radiation, given that ‘‘nuclear operations [have been
taking] place at the SRS since the 1950’s.’’ EI Contentions at 2. This contention
lacks an adequate basis and, therefore, is inadmissible. EI not only fails to cite
any portions of the ER or CAR that it believes are inadequate, but ER sections
5.6.1 through 5.6.4 describe four different types of cumulative impacts that have
already been analyzed: (1) impacts from SRS activities; (2) impacts of other
actions near the MFFF and SRS; (3) transportation impacts; and (4) impacts at
mission reactors. In contravention of the section 2.714(b)(2)(ii) criterion, EI has
not provided any expert opinion or other documentation to support its assertion
that such cumulative effects are significant and need to be considered in the DCS
ER.
Finally, EI’s contention L alleges that the ‘‘NRC staff has pointed out a
number of examples of the Applicant’s failure to comply with NEPA,’’ such as
the failureto consideralternatives,andthe failuretoincludeadequateinformation
evaluating ‘‘cumulative effects’’ at SRS.Id.at 3. Similar to the other contentions
in this group, contention L also lacks an adequate basis as required by section
2.714(b)(2)(iii). The contention fails to point to any specific portions of NEPA
or the Commission’s environmental regulations with which DCS has failed to
comply. Moreover, as section 5.7 of the ER indicates,see ER at 5-43 to 5-44, an
471
array of alternatives are considered in the SPD EIS. Furthermore, EI’s assertion,
without more, that Staff RAIs demonstrate noncompliance with NEPA is an
insufficient basis to support a contention.See Sacramento Municipal Utility
District (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135, 147,
150 (1993). Hence, contention L is inadmissible.
IV. CONCLUSION
For the reasons set forth in Part II of this Memorandum and Order, we find
that Petitioners GANE, EI, and Joint Petitioners BREDL and Donald J. Moniak
have established standing to intervene in this materials licensing proceeding.
Further, we find thatMs. Foster hasfailed to establish herstanding and, therefore,
her hearing petition is denied.For the reasons detailed in Part III.A, GANE’s
proffered contentions 1, 2, 3, 5 (as consolidated), 6, 9, 11 (in part), and 12
as well as BREDL contentions 1E (in part) and 9A are admitted. Therefore,
the intervention petitions of Petitioner GANE and Joint Petitioners BREDL and
Donald J. Moniak are granted,and they are admitted as parties to the proceeding.
Because EI has not profferedany admissible contentions, its intervention petition
is denied.
Pursuant to 10 C.F.R. §2.1205(o),Ms. Foster and EI may appeal this decision
to theCommissionwithin ten(10)daysofserviceof thisMemorandumandOrder
on the questions whether their requests for a hearing or petitions to intervene
should have been granted in whole or in part. Because DCS has challenged the
granting of all the intervention petitions, it may appeal this ruling within ten (10)
days of service of this Memorandum and Order on the question of whether the
interventionpetitionsof GANE and that of BREDL and DonaldJ. Moniakshould
have been denied in their entirety. Similarly, the Staff may appeal this ruling
with ten (10) days of service of this Memorandum and Order on the question
of whether the intervention petition of BREDL and Donald J. Moniak should
have been denied in its entirety. Because the Staff has conceded the granting of
GANE’s intervention petition, however, it may only file a statement in support
of any DCS appeal of the grant of GANE’s intervention petition. Such statement
must be filed within fifteen (15) days of service of the DCS appeal brief. BREDL
and GANE may also file counterstatements opposing any appeals taken by DCS
or the Staff within fifteen (15) days of service of any appeal brief filed by DCS
or the Staff.
472
It is so ORDERED.
THE ATOMIC SAFETY AND
LICENSING BOARD
21
Thomas S. Moore, Chairman
ADMINISTRATIVE JUDGE
Charles N. Kelber
ADMINISTRATIVE JUDGE
Rockville, Maryland
December 6, 2001
21Copies of this Memorandum and Order were sent this date by either Internet e-mail transmission or overnight
mail to (1) GANE, (2) BREDL, (3) EI, (4) Ms. Foster, (5) DCS, and (6) the NRC Staff.
Although Judge Lam participated in final deliberations regarding this issuance and agrees with the reasoning and
result, he was unavailable to sign it.
473
Cite as 54 NRC 474 (2001)LBP-01-36
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
Ann Marshall Young,Chair
Dr. Peter S. Lam
Thomas D. Murphy
In the Matter of Docket No. 50-213-OLA
(ASLBP No. 01-787-02-OLA)
CONNECTICUT YANKEE ATOMIC
POWER COMPANY
(Haddam Neck Plant) December 10, 2001
ORDER
(Approving Stipulation and Settlement Agreement, and
Granting Motion To Participate as Interested State)
By Stipulation filed November 13, 2001,
1 Connecticut Yankee Atomic Power
Company (CYAPCO) and the State of Connecticut, Department of Public Utility
Control(CDPUC), stipulate thatthey have resolvedall issues raised by CDPUC’s
contentions in the above-captioned proceeding on the basis of a Settlement
Agreement filed as an attachment to the Stipulation; and CDPUC moves, with
CYAPCO’s expressassent, for leave to participate in the remainingaspects of the
proceeding as an interested state pursuant to 10 C.F.R. §2.715(c).
2
No objection being expressed to the Stipulation, the Settlement Agreement, or
the State’s motion by any party to this proceeding, the Settlement Agreement of
1 Stipulation (CYandDPUC:WithdrawalofContentionandPetitionToIntervene; MotionforLeaveToParticipate
as Interested State and Assent to the Allowance Thereof), Nov. 13, 2001.
2 The Citizens Awareness Network is also an intervenor in the proceeding, but is not a party to the Stipulation at
issue herein.
474
CYAPCO and CDPUC is hereby APPROVED, the Board finding the settlement
to be consistent with 10 C.F.R. §2.759 and in the public interest; and CDPUC’s
motion to continue to participate in the proceedingas an interested state is hereby
GRANTED.
It is so ORDERED.
FOR THE ATOMIC SAFETY
AND LICENSING BOARD
3
Ann Marshall Young, Chair
ADMINISTRATIVE JUDGE
Rockville, Maryland
December 10, 2001
3 CopiesofthisOrderweresentthisdatebyInternet e-mailorfacsimiletransmission,ifavailable,toallparticipants
or counsel for participants.
475
Cite as 54 NRC 476 (2001)LBP-01-37
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD:
Before Administrative Judges:
G. Paul Bollwerk, III,Chairman
Dr. Jerry R. Kline
Dr. Peter S. Lam
In the Matter of Docket No. 72-22-ISFSI
(ASLBP No. 97-732-02-ISFSI)
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) December 13, 2001
In this proceeding concerning the application of Private Fuel Storage, L.L.C.
(PFS), under 10 C.F.R. Part 72 to construct and operate an independent spent
fuel storage installation (ISFSI), the Licensing Board denies a request by
Intervenor State of Utah (State) to admit late-filed contention Utah RR, Suicide
Mission Terrorism and Sabotage, in which the State seeks to litigate safety and
environmental challenges relating to the September 11, 2001 attacks by foreign
terrorists upon the World Trade Center buildings in New York, New York, and
the Pentagonbuildingin the Washington, D.C. metropolitanarea, concludingthat
(1) although a balancing of the five 10 C.F.R. §2.714(a)(1) late-filing factors
supports admission of the State issue statement, it nonetheless is inadmissible as
an impermissible challenge to existing agency regulatory requirements regarding
ISFSI physical security standards; and (2)the Board’s rulingin this regardshould
be referred to the Commission for its further consideration.
476
RULES OF PRACTICE: NONTIMELY SUBMISSION OF
CONTENTIONS (GOOD CAUSE FOR DELAY)
To justify a presiding officer’s consideration of the ‘‘merits’’ of a late-
filed contention, i.e., whether the contention fulfills the admissibility standards
specified in 10 C.F.R. §2.714, a party must demonstrate that a balancing of
the five factors set forth in section 2.714(a)(1)(i)-(v) supports acceptance of the
petition. The first and foremost factor in this appraisal is whether good cause
exists thatwill excusethelate-filingofthecontention.SeeCommonwealthEdison
Co.(Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241,
244 (1986). And relevant to the evaluation of that factor, the good cause element
has two componentsthat impacta presidingofficer’sassessment of the timeliness
of a contention’sfiling: (1) when was sufficient information reasonably available
tosupportthesubmissionofthelate-filedcontention;and(2)oncetheinformation
was available, how long did it take for the contention admission request to be
preparedand filed.See LBP-99-3,49 NRC 40, 46-48(assessing late-filingfactors
relative to petition to intervene),aff’d,CLI-99-10, 49 NRC 318 (1999).
RULES OF PRACTICE: NONTIMELY SUBMISSION OF
CONTENTIONS (BALANCING OF 10 C.F.R. §2.714(a)(1) CRITERIA)
Relative to the other four late-filing factors, in the absence of good cause there
must be a compelling showing on the four remaining elements, of which factors
two and four — availability of other means to protect the petitioner’s interest and
extent of representation of petitioner’s interest by other parties — are to be given
less weight than factors three and five — assistance in developinga strong record
and broadeningthe issues/delaying the proceeding.See Braidwood,CLI-86-8, 23
NRC at 244-45.
RULES OF PRACTICE: NONTIMELY SUBMISSION OF
CONTENTIONS (OTHER MEANS AND OTHER PARTIES TO
PROTECT INTERVENORS’ INTEREST)
With respect to factor two — availability of other means to protect the State’s
interests — although a pending Commission petition has the potential to afford
the party seeking late-filed contention admission some relief, given the general
reluctance of the Commission to intervene in ongoing adjudicatory proceedings,
see Connecticut Yankee Atomic Power Co.(Haddam Neck Plant), CLI-01-25, 54
NRC 368, 374-75 (2001), that matter provides little, if any,support for denying
admissibility.
477
RULES OF PRACTICE: NONTIMELY SUBMISSION OF
CONTENTIONS (ASSISTANCE IN DEVELOPMENT OF
SOUND RECORD)
Factorthree — contributionto developmentof a soundrecord— also provides
little, if any, support for denying admissibility when the affiant presentation in
support of the contention provides an analysis of the asserted vulnerability to,
and purported radiological consequences of, a September 11-type terrorist attack
upona proposedISFSI facilitythat could,if the eventsof September11, 2001,are
consideredsufficient to establish the reasonableforeseeability of such an incident
at the facility, make a record development contribution.
RULES OF PRACTICE: NONTIMELY SUBMISSION OF
CONTENTIONS (SIGNIFICANCE VERSUS DELAY)
Regarding factor five — broadening the issues and delaying the proceeding
— even if admission of a contention would have a substantial impact upon
the existing scope of, and schedule for, a proceeding, proffering an issue of
sufficiently serious moment can temper this factor as a significant ingredient
against late admission of the contention.
RULES OF PRACTICE: ADMISSIBILITY OF CONTENTION(S)
(CHALLENGE TO COMMISSION REGULATIONS)
A contention is inadmissible if it constitutes an impermissible challenge to
existingagencyregulatoryrequirements.SeeDominionNuclearConnecticut,Inc.
(Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 364
(2001)(contentionthatamountstogeneralattackonregulationsisimpermissible).
RULES OF PRACTICE: REFERRAL OF RULING TO COMMISSION
In the wake of catastrophicterroristevents, and in light of currentCommission
consideration of whether, and to what degree, the agency’s regulatory regime,
including facility physical security requirements, should be changed to reflect
what transpired, a presidingofficer’s ruling on admissibility of a related late-filed
contention should be referred to Commission for its consideration.See Haddam
Neck,CLI-01-25, 54 NRC at 374-75.
478
MEMORANDUM AND ORDER
(Denying Motion for Admission of Late-Filed Contention Utah RR
and Referring Ruling to the Commission)
In this proceeding regarding the pending application of Private Fuel Storage,
L.L.C. (PFS), for permission to construct and operate a 10 C.F.R. Part 72
independent spent fuel storage installation (ISFSI) in Skull Valley, Utah, before
the Licensing Board is a request by Intervenor State of Utah (State) to admit
late-filed contention Utah RR, Suicide Mission Terrorism and Sabotage. With
this contention, the State seeks to litigate safety and environmental challenges
relating to the September 11, 2001 attacks by foreign terrorists upon the World
TradeCenter buildingsin New York, New York, and the Pentagonbuildingin the
Washington, D.C. metropolitan area. In response to this State request, Intervenor
Ohngo Gaudadeh Devia (OGD) supports admission of the contention, while both
PFS and the NRC Staff oppose its acceptance based upon either a balancing of
the five late-filing factors in 10 C.F.R. §2.714(a)(1)or the purportedState failure
to submit a properly framed and supported issue statement.
For the reasons set forth below, we deny admission of this contention but, in
accordance with 10 C.F.R. §2.730(f), refer this ruling to the Commission for its
further consideration.
I. BACKGROUND
We will not recount in any detail the horrific yet well-known events of
September 11, 2001, that clearly are the genesis of the State’s October 10, 2001
motion to admit late-filed contention Utah RR. Nor will we recount in detail the
various prior Board rulings on contentions relating to terrorism or sabotage filed
by the State and other intervening parties, except to note that heretofore we have
found those contentions, as framed, generally inadmissible.See LBP-99-43, 50
NRC 306, 316 n.3 (1999); LBP-98-13, 47 NRC 360, 372 (1998); LBP-98-10, 47
NRC 288, 296 (1998); LBP-98-7, 47 NRC 142, 186, 199, 216, 226, 233-34,aff’d
on other grounds,CLI-98-13, 48 NRC 26 (1998). With its late contention Utah
RR, Suicide Mission Terrorism or Sabotage, the State now seeks the admission
of the following issue statement:
The Applicant, in its Safety Analysis Report [(SAR)], and the Staff, in its Safety Evaluation
Report [(SER)], have failed to identify and adequately evaluate design basis external man-
induced events such as suicide mission terrorism and sabotage, ‘‘based on the current state of
knowledge about such events’’ as required by 10 CFR §72.94 (emphasis added). In addition,
the scope of the Applicant’s Environmental Report and the Staff’s Draft Environmental Impact
Statement is too limited to comply with the National Environmental Policy Act [(NEPA)] and
10 CFR §§72.34, 51.45, 51.61 and 51.71 because they do not adequately identify and evaluate
479
any adverse environmental effects which cannot be avoided from attacks by suicide mission
terrorism or sabotage.
[State]RequestforAdmissionofLate-FiledContentionUtahRR(SuicideMission
Terrorism and Sabotage) (Oct. 10, 2001) at 3 [hereinafter State Motion].
Relative to the five section 2.714(a)(1)late-filing factors, the State asserts that
the events of September 11, 2001, establish that a new level of terrorism and
sabotage are now reasonably foreseeable so as to provide an appropriate trigger
for its contention and that its submission of the contention within 30 days of that
date meets the ‘‘good cause’’ standard, thereby making this first factor one that
weighs in its favor. With respect to factor two, although recognizing that it has
also submitted to the Commission a separate, pending petition to suspend this
proceeding based on the same terrorism/sabotage concerns, the State contends
that Commission denial of the petition would leave it with only this contention
as a means for gaining consideration of its concerns in this proceeding, thus
putting this factor on the admissibility side of the late-filing balance as well.
The same is true with respect to factor three, according to the State, because
its contention is supported by Radioactive Waste Management Associates Senior
Associate Dr. MarvinResnikoffwhohasextensiveexperiencein radiologicalrisk
assessment and in analyzing the PFS storage and transportation systems, which
would provide the basis for his testimony addressing how PFS current designs
would fail if subjected to a September 11, 2001-type attack. The State places
late-filing factor four on its side of the balance too, declaring that no other party
will represent its interests since no other party has a terrorism contention. Finally,
as to factor five, the State acknowledges that admission of contention Utah RR
would broaden and delay this proceeding,but declares that this factor should not
be weighed against admission because the issues raised are critical to ensuring
protection of the public health and safety and compliance with NEPA.See id.at
14-15.
Insupportofthecontentionitself, theState assertsthattheeventsofSeptember
11, 2001,establishthat‘‘a suicidemission to crasha hijackedcommercialairliner
loaded with jet fuel into a nuclear facility is a reasonably foreseeable event.’’Id.
at 3. Noting various nuclear facility-related federal government and international
organizationreactionstothoseevents,includingtheNRC’scommitmenttoreview
and make appropriatechangesto its securityregulationsand procedures,the State
asserts the need for ‘‘a new evaluation of the design basis external man-induced
events [(DBEMIE)] from suicidal terrorism and sabotage, as required by 10 CFR
§§72.34,72.94,51.45(b)(1)&(2).’’Id.at4. Inthisregard,althoughassertingthat
it is not challenging existing agency regulations, the State nonetheless maintains
that, given the events of September 11, 2001, the Commission’s Atomic Energy
Act and NEPA mandates to protect the public health and safety and consider
adverse environmental effects would be abrogated by continued agency review
480
of the PFS application without new DBEMIE-related siting criteria and NEPA
analyses that focuson suicideterrorist activities. This is particularlyso, according
to the State, because (1) the PFS facility, which could eventually be the storage
place for the current United States inventory of commercial spent nuclear fuel,
is to be in the middle of Skull Valley, surrounded by vital national security
facilities such as the Utah Test and Training Range, Dugway Proving Ground,
Deseret Chemical Depot, and the Tooele Army Depot, and is near commercial
jetways, thus presenting an opportune suicide mission target;see id.at 9-10;
(2) the transportation routes to the facility, whether by rail or highway, would
present an ideal terrorist target,see id.at 10; and (3) the casks in which the spent
nuclear fuel (SNF) is to be shipped and stored, and the canister transfer building
and the intermodal transfer point in which these casks would be housed during
portions of the shipping and storage process, are not designed to withstand a
direct commercial airliner impact or any resulting fuel fire, which would result in
a release of radioactivematerial that would exceedthe 5-rem standardestablished
in 10 C.F.R. §72.106,see id.at 11-13. Finally, according to the State, in light
of the agency’s determination to review security measures across the board,
impacts of terrorist threats to the PFS facility and transportation routes from such
items as truck bombs, anti-tank and armor-piercing weapons, and multimember,
intercoordinated attacks should be identified and adequately evaluated in the
context of the agency’s safety and environmentalreviews.See id.at 13-14.
Subsequently,in a short response IntervenorOGD supports the State’s request
and seeks to join in the State’s contention.See OGD Response to [State] Request
for Admission of Late-Filed ContentionUtah RR (Suicide Mission Terrorismand
Sabotage) (Oct. 24, 2001) at 1.
Applicant PFS, on the other hand, opposes admission. Albeit not addressing
the late-filing factors, PFS nonetheless declares that the proposed contention
is inadmissible for a number of reasons, including (1) being an impermissible
challenge to the agency’s security regulations, including 10 C.F.R. §73.51,see
Applicant’s Response to [State] Request for Admission of Late-Filed Contention
Utah RR (Oct. 24, 2001) at 4-8; (2) being based on a misreading of section 72.94,
which concerns evaluation of potential accidents associated with normal human
activity near a proposed facility site,not deliberate attacks upon the facility,see
id.at 8-9; (3)being an impermissiblechallengeto the agency’sNEPA regulations
and outside the scope of NEPA in that NEPA does not require the assessment
of remote and speculative impacts such as would arise relative to terrorism and
sabotage;see id.at 9-10; (4) being an impermissible challenge to the Staff’s
license application evaluation process as embodied in its SER,see id.at 11; (5)
being an improper attempt to raise transportation issues that are outside the scope
of the proceeding,see id.; (6) lacking the requisite factual basis in that it (a) fails
to establish any likelihood that the PFS facility is more apt to be subject to attack
as compared to other nuclear facilities, (b) fails to account for the remote location
481
of the facility or the angle at which a crashing airliner is likely to strike, (c) is
based on erroneous information about the ability of storage casks to withstand
fires, (d) improperly assumes that an aircraft impact would have the same effects
as a 2000-pound bomb, and (e) provides no factual support for its assertion that
other types of terrorist activities, e.g., truck bombs, are reasonably foreseeable in
light of the activities of September 11, 2001,see id.at 11-13; and (7) seeking to
litigate a matter currently under Commission review that may be the subject of a
general rulemaking,see id.at 13-14.
The Staff likewise asserts that the State’s request should be rejected for
failing both to meet the section 2.714(a)(1) late-filing standards and to proffer
an admissible issue statement.See NRC Staff’s Response to [State] Request for
Admission of Late-Filed Contention Utah RR (Suicide Mission Terrorism and
Sabotage) (Oct. 26, 2001) at 15. In connection with the late-filing standards, the
Staffassertsthatwhilethefirstandfourthfactors—goodcauseandrepresentation
by other interests — favor permitting late-filing, the other three factors do not
and, in fact, tilt the overall balance in favor of not admitting contention Utah RR.
Further, regarding the contention itself, the Staff contends it is inadmissible as a
challenge to the agency’s physical security regulations, which the Staff declares
donotrequirePFSto addressterroristattacksliketheeventsofSeptember11,and
contravenes 10 C.F.R. §2.758(a) as it governs the consideration of Commission
rules in adjudicatory proceedings.See id.at 7-9. Also mistaken, the Staff asserts,
is the State’s reliance on 10 C.F.R. §72.94 as a basis for its contention, which
the Staff maintains requires consideration of past or present man-made facilities
and activities in the context of a facility siting determination and thus has no
applicability here given that no terrorist events have occurred in the region of
the PFS facility.See id.at 9-10. So too, the Staff asserts, it is not apparent that
the events of September 11, 2001, must be considered for the Commission to
make the requisite public health and safety reasonable assurance findingunder 10
C.F.R. §72.40(a)(13) if PFS can demonstrate it has satisfied existing regulations
and applicable law.See id.at 10. And as for the State’s concerns about the
shipping casks, the Staff declares that these matters are coveredby 10 C.F.R. Part
71 and United States Departmentof Transportationregulationsso as to be outside
the scope of this proceeding.See id.at 11.
Additionally, according to the Staff, the State’s claims regarding the NEPA
aspects of its contention are misplaced given its failure to make any showing,
other than unsupported speculation, that an actual, September 11-type terrorist
attack directed against the PFS facility is a ‘‘reasonably foreseeable event.’’
Indeed, the Staff asserts, ‘‘there is no rational means by which a decision-maker
can reasonably predict or foresee that such an attack will be targeted against any
particular(nuclearorother)facility’’and,as such, thepotentialforterrorist attack
need not be addressed under NEPA.Id.at 12. Moreover, the Staff contends that
the State has provided no support for its view that additional types of terrorist
482
attacks, such as truck bombs, are required to be included in the facility design
basis or as reasonably foreseeable events subject to NEPA analysis.See id.at
13. Finally, the Staff maintains that the issues framed by contention Utah RR are
best considered in the contextof a rulemakingor some other generic Commission
review, any resulting requirements from which would be applicable to PFS and
other applicants or licensees as appropriate.See id.at 13-14.
II. ANALYSIS
A. Section 2.714(a)(1) Late-Filing Factors
Previously, in considering the admissibility of a late-filed issue statement such
as this one, we described the applicable late-filing standards as follows:
To justify a presiding officer’s consideration of the ‘‘merits’’ of a late-filed contention,
i.e., whether the contention fulfills the admissibility standards specified in 10 C.F.R. §2.714, a
party must demonstrate that a balancing of the five factors set forth in section 2.714(a)(1)(i)-(v)
supports acceptance of the petition. The first and foremost factor in this appraisal is whether
good cause exists that will excuse the late-filing of the contention.See Commonwealth Edison
Co.(Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 244 (1986).
And relevant to our evaluation of that factor here, as we have noted previously (albeit in a
somewhat different context), the good cause element has two components that impact on our
assessment of the timeliness of a contention’s filing: (1) when was sufficient information
reasonably available to support the submission of the late-filed contention; and (2) once the
information was available, how long did it take for the contention admission request to be
prepared and filed.See LBP-99-3, 49 NRC 40, 46-48 (assessing late-filing factors relative to
petition to intervene),aff’d,CLI-99-10, 49 NRC 318 (1999). Moreover, relative to the other
four factors, in the absence of good cause there must be a compelling showing on the four
remaining elements, of which factors two and four — availability of other means to protect
the petitioner’s interest and extent of representation of petitioner’s interest by other parties —
are to be given less weight than factors three and five — assistance in developing a strong
record and broadening the issues/delaying the proceeding.See Braidwood,CLI-86-8, 23 NRC
at 244-45.
LBP-00-27, 52 NRC 216, 220-21 (2000).
In this instance, concerning the first and most significant section 2.714(a)(1)
factor — good cause for late-filing — the State has established that this element
rests on the admissibility side of the balance, at least with respect to the State’s
concerns regarding a September 11-type terrorist airliner attack. Good cause
exists for such a filing, both as to the ‘‘trigger’’ and ‘‘timing’’ portions of this
factor.
As to the four remaining factors, we agree with the Staff that factor four —
extent of representation of petitioner’s interests by other parties — weighs in
the State’s favor. We disagree with the Staff, however, in connection with the
other three factors. With respect to factor two — availability of other means
483
to protect the State’s interests — although its pending Commission petition has
the potential to afford the State some relief, given the general reluctance of the
Commission to intervene in ongoing adjudicatory proceedings,see Connecticut
YankeeAtomicPowerCo.(HaddamNeckPlant),CLI-01-25,54NRC368,374-75
(2001), we see this as providing little, if any, support for denying admissibility
at this juncture. The same is true with regard to factor three — contribution to
development of a sound record. In his presentation in support of contention Utah
RR, Dr. Resnikoff provides an analysis of the asserted vulnerability of the PFS
storage casks and cask handling facilities to a September 11-type attack and the
radiological consequences that purportedly would result.See State Motion, Exh.
2 (Declaration of Dr. Marvin Resnikoff in Support of Utah RR). If the events
of September 11, 2001, are considered sufficient to establish the reasonable
foreseeability of such an incident at the PFS facility, then the information he
apparently would intend to provide regarding the physical consequences for
the PFS facility and the ensuing radiological impacts could make a record
developmentcontribution. Finally, regarding factor five — broadening the issues
and delaying the proceeding — as the Staff notes, admission of this contention
would have a substantial impact upon the existing scope of, and schedule for, this
proceeding. It also is apparent, however, that the issue proffered, if admissible, is
a matter of sufficiently serious moment so as to temper this factor as a significant
ingredient against late admission of this contention.
Accordingly, we conclude that a balancing of the five late-filing factors in
section 2.714(a)(1) supports admission of contention Utah RR as it relates to a
September 11-type terrorist attack.
1
B. Contention Admissibility Standards
Of course, establishing that a balancing of the section 2.714(a)(1) late-filing
factors supports admission is only part of the burden faced by an intervenor
seeking to gain entry of a late-filed contention. There is also the matter of the
admissibility of the contention itself under the standards established in section
2.714(b)(2),(d)(2)andtheCommission’scaselawinterpretingthoserequirements.
Although PFS and the Staff provide a variety of arguments in this instance as
to why both the safety and environmental aspects of contention Utah RR are
not admissible, for the reasons set forth below we find one to be dispositive,
i.e., that the contention constitutes an impermissible challenge to existing agency
regulatory requirements.See Dominion Nuclear Connecticut, Inc.(Millstone
1 On the other hand, relative to the State’s additional concerns about other purported terrorist activities such as
truck bombs, good cause is lacking for the admission of these items. With this most prominent factor weighing
against admission, an assessment and balancing of the other late-filing factors would not result in the type of
compelling showing that is necessary to gain entry into this proceeding.
484
Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 364 (2001)
(contention that amounts to general attack on regulations is impermissible).
Aswenotedpreviously,wehavesustainedthisparticularobjectionrelativetoa
number of other contentions submitted by the State and other Intervenorsseeking
to litigate safety and environmentalissues relating to sabotage and terrorism. The
question squarely posed by the contention Utah RR, however, is whether the
events of September 11, 2001, provide a basis for now permitting litigation on
sabotage/terrorism-related safety and/or environmental matters. Given existing
Commission regulations, we conclude they do not.
Parts 72 and 73 of Title 10 of the Code of Federal Regulations set forth
the physical security protection requirements for SNF storage at facilities like
that proposed by PFS. Specifically, 10 C.F.R. §§72.180, 72.184 provide that an
applicant such as PFS must ‘‘establish, maintain, and follow a detailed plan for
physical protection as described in §73.51’’ and a ‘‘safeguards contingency plan
for responding to threats and radiological sabotage’’ as described in Appendix
C to Part 73. With regard to the physical protection plan, section 73.51(b)(1)
states that an applicant for an away-from-reactor ISFSI (such as that proposed
by PFS) must ‘‘establish and maintain a physical protection system with the
objective of providing high assurance that activities involving spent nuclear
fuel and high-level radioactive waste do not constitute an unreasonable risk to
public health and safety.’’ Moreover, under section 73.51(b)(2)(i)-(iv),to satisfy
this general objective an applicant must meet certain specified performance
capabilities, including SNF storage within a protected area (PA); PA restricted
access; detection and assessment of an unauthorized penetration of, or activities
within, the PA; as necessary, timely communication with a designated response
force; and effective physical protection organizationmanagement. Further, under
section 73.51(b)(3), the facility physical protection system ‘‘must be designed
to protect against loss of control of the facility that could be sufficient to cause
a radiation exposure exceeding the dose as described in §72.106.’’ Finally,
section 73.51(d) sets forth specific methods for meeting the section 73.51(b)(2)
performance capabilities, with the caveat that other alternative measures may be
authorizedbytheCommission.Forthesafeguardcontingencyplan,AppendixCto
Part73outlinesspecificrequirements,includingdescribingasetofpredetermined
decisions and actions for responding to threats, thefts, and sabotage.
These standards in large measure come from a May 1998 final rule, 63 Fed.
Reg. 26,955 (1998), that was intended to clarify requirements for protecting
spent fuel at the various types of SNF and high-level radioactive waste storage
sites licensed by the agency, including stand-alone ISFSIs like that proposed by
PFS. Among other things, that rule added section 73.51 and its specific physical
protection requirements. In doing so, however, in the statement of considerations
regarding the rule, responding to a comment asking that the protection goal for
485
these types of waste storage facilities should include countering the malevolent
use of an airborne vehicle, the Commission declared:
Inclusion of an airborne vehicle was assessed for possible inclusion into the protection goal
for this rule. However, protection against this type of threat has not yet been determined
appropriate at sites with greater potential consequences than spent fuel storage installations.
Therefore, this type of requirement is not included within the protection goal for this final rule.
63 Fed. Reg. at 26,956. Thus, the Commission seems clearly to have excluded
the malevolent use of an airborne vehicle as part of any sabotage/terrorist threat
that must be evaluated for these facilities, making admission of contention Utah
RR as a safety issue problematic.
That this is an appropriate result under the agency’s current regulatory regime
is underscored by a comparison with the overall Commission approach regarding
sabotage/terrorism events relating to power reactors, i.e., ‘‘sites with greater
potential consequences than spent fuel storage installations.’’ In this regard, 10
C.F.R. §50.13 declares:
An applicant for a license to construct and operate a production or utilization facility, or for
an amendment to such license, is not required to provide for design features or other measures
for the specific purpose of protection against the effects of (a) attacks and destructive acts,
including sabotage, directed against the facility by an enemy of the United States, whether
a foreign government or other person, or (b) use or deployment of weapons incident to U.S.
defense activities.
This provision, in turn, reflects the Commission’s determination in the late 1960s
to exclude from licensing consideration the need for an applicant to provide
special design features or other measures to protect against enemy attacks and
destructive acts. The basis for this exclusion, according to the Commission, was
that
the protection of the United States against hostile enemy acts is a responsibility of the nation’s
defense establishment and of the various agencies of our Government having internal security
functions. . . . One factor underlying our practice in this connection has been a recognition that
reactor design features to protect against the full range of the modern arsenal of weapons are
simply not practicable and that the defense and internal security capabilities of this country
constitute, of necessity, the basic ‘‘safeguards’’ as respects possible hostile acts by an enemy
of the United States.
Florida Power & Light Co.(Turkey Point Nuclear Generating Plant, Units 3 and
4), 4 AEC 9, 13 (1967),aff’d sub nom. Siegel v. AEC,400 F.2d 778 (D.C. Cir.
1968). There seems little doubt that the terrorist attacks of September 11, 2001,
constituted acts by an enemy or enemies of the United States,see Pub. L. No.
107-40, 115 Stat. 224 (Sept. 20, 2001), as would any similar acts directed against
Americannuclearfacilities. Assuch,theexistingCommissionpolicyofexcluding
486
such acts from licensing determinations, except to the extent they fall within the
already definedthreat protectiongoals for the facility,see CommonwealthEdison
Co.(BraidwoodNuclear Power Station, Units 1 and 2), LBP-85-27,22 NRC 126,
137-38 (1985), appears applicable and controlling relative to any safety-related
considerations.2
As we noted earlier, contention Utah RR also seeks to gain consideration
of a September 11, 2001-type event in the context of the agency’s NEPA
responsibilities. Although this question is a close one and another Licensing
Board has recently reached a somewhat different conclusion,see Duke Cogema
Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-
01-35, 54 NRC 403, 444-47 (2001), at this juncture we are persuaded, as the
Appeal Board observed a number of years ago, that ‘‘the rationale for 10 CFR
§50.13 [is] as applicable to the Commission’sNEPA responsibilities as it is to its
health and safety responsibilities.’’Long Island Lighting Co.(Shoreham Nuclear
Power Station), ALAB-156, 6 AEC 831, 851 (1973);see also Limerick Ecology
Action, Inc. v. NRC,869 F.2d 719, 743-44 (3d Cir. 1989) (sabotage risk need not
be considered in environmental impact statement because uncertainty in current
risk assessment techniques would not allow meaningful risk assessment). As
such, we find contention Utah RR inadmissible in this respect as well.
3
C. Referral to the Commission
Although we thus conclude that late-filed contention Utah RR should not
be admitted, as we have recognized, this ruling is based on existing agency
regulations that were adopted prior to September 11, 2001. As is often observed
since September 11, things are not — and may never be — the same in the
wake of the catastrophic events of that day. Moreover, as all the parties have
noted, the Commission currently is considering whether, and to what degree,
the agency’s regulatory regime, including facility physical security requirements,
should be changed to reflect what transpired on that fateful day.See also
Statement of Dr. Richard A. Meserve, Chairman, Submitted by the United States
Nuclear Regulatory Comm’n to the Subcomm. on Oversight and Investigations
of the House Comm. on Energy and Commerce Concerning Nuclear Power Plant
2 In this regard, we note that the State has not made any attempt to gain the admission of late-filed contention Utah
RR under 10 C.F.R. §2.758 or to otherwise address the applicability of that provision to its contention admission
request.
3 Although our determination that the contention constitutes an impermissible attack on the agency’s regulations
is dispositive of this issue statement, we also note that the State’s attempt to expand the consideration of
sabotage/terrorism beyond September 11-type events to (1) other sabotage/terrorism scenarios, such as truck bombs,
and(2)transportation issues,wouldbeinadmissibleaslackingafactualbasisandoutsidethescopeofthisproceeding,
respectively. So too, we note that the State’s reliance on the siting provisions of section 72.94 regarding regional
DBEMIEs as a basis for this contention is misplaced. Moreover, to the degree OGD seeks to adopt contention
Utah RR in its October 24, 2001 pleading, we deny that request as seeking to add a late-filed contention without
addressing the section 2.714(a)(1) late-filing factors.SeeLBP-98-7, 47 NRC at 182-83.
487
Security at 2-5 (Dec. 5, 2001) (ADAMS Access. No. ML013390509) (as part of
top-to-bottom physical security review in wake of September 11, 2001 events,
Commissionisreexaminingdesignbasisthreatandwillmodifyit,asappropriate).
In this light, this ruling seems to be one particularly suited for early review by
the Commission and, accordingly, we take the step of referring this decision
regarding the admissibility of late-filed contention Utah RR for its consideration.
See Haddam Neck,CLI-01-25, 54 NRC 374-75.
III. CONCLUSION
Although we conclude that a balancing of the five 10 C.F.R. §2.714(a)(1)
late-filing factors supports admission of contention Utah RR, Suicide Mission
Terrorism and Sabotage, relative to September 11, 2001-type events, we
deny admission of this contention as an impermissible challenge to existing
agency regulatory requirements regarding ISFSI physical security requirements.
Nonetheless, given the nature of the happenings of September 11, 2001, that are
the genesis of this contention, as well as the Commission’s stated intent to review
the agency’s regulatory regimen in light of those events, we refer our rulings to
the Commission for its further consideration.
For the foregoing reasons, it is, this thirteenth day of December 2001,
ORDERED that:
1. The October 10, 2001 State motion for admission of late-filed contention
Utah RR is denied.
488
2. In accordance with 10 C.F.R. §2.730(f), the Licensing Board’s rulings in
section II.A-B above are referred to the Commission for its further consideration
and action, as appropriate.
THE ATOMIC SAFETY AND
LICENSING BOARD
4
G. Paul Bollwerk, III, Chairman
ADMINISTRATIVE JUDGE
Jerry R. Kline
ADMINISTRATIVE JUDGE
Rockville, Maryland
December 13, 2001
4 Judge Lam was not available to review this decision, although he was aware of and had no objection to the Board
majority’s action in issuing this ruling in his absence. The Board majority notes that Judge Lam is a member of
the Licensing Board in the ongoing proceeding concerning the licensing of a proposed mixed oxide fuel fabrication
facility that recently issued a unanimous decision admitting a contention relating to the events of September 11,
2001.See Savannah River,LBP-01-35, 54 NRC at 444-47.
Copies of this Memorandum and Order were sent this date by Internet e-mail transmission to counsel for (1)
Applicant PFS; (2) Intervenors Skull Valley Band of Goshute Indians, OGD, Confederated Tribes of the Goshute
Reservation, Southern Utah Wilderness Alliance, and the State; and (3) the Staff.
489
Cite as 54 NRC 490 (2001)LBP-01-38
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
G. Paul Bollwerk, III,Chairman
Dr. Jerry R. Kline
Dr. Peter S. Lam
In the Matter of Docket No. 72-22-ISFSI
(ASLBP No. 97-732-02-ISFSI)
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) December 19, 2001
In this proceeding concerning the application of Private Fuel Storage, L.L.C.
(PFS), under 10 C.F.R. Part 72 to construct and operate an independentspent fuel
storage installation (ISFSI), the Licensing Board denies a PFS motion seeking
reconsiderationofthe Board’sNovember30, 2001decision, LBP-01-34,54 NRC
293 (2001), denying a PFS request for summary disposition regarding contention
SUWA B, Railroad Alignment Alternatives.
RULES OF PRACTICE: MOTION FOR RECONSIDERATION
A properly supported reconsideration motion is one that does not rely upon
(1) entirely new theses or arguments, except to the extent it attempts to address
a presiding officer’s ruling that could not reasonably have been anticipated,see
Louisiana Energy Services, L.P.(Claiborne Enrichment Center), CLI-97-2, 45
NRC 3, 4 & n.1 (1997) (citing cases); or (2) previously presented arguments that
have been rejected,see Nuclear Engineering Co.(Sheffield, Illinois Low-Level
Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 5 (1980). Instead, the
movantmustidentifyerrorsordeficienciesinthepresidingofficer’sdetermination
490
indicating the questioned ruling overlooked or misapprehended (1) some legal
principle or decision that should have controlling effect; or (2) some critical
factual information.See Georgia Power Co.(Vogtle Electric Generating Plant,
Units 1 and 2), LBP-94-31, 40 NRC 137, 140 (1994);Philadelphia Electric
Co.(Limerick Generating Station, Units 1 and 2), LBP-83-25, 17 NRC 681,
687,rev’d and remanded on other grounds,ALAB-726, 17 NRC 755 (1983).
Reconsideration also may be appropriately sought to have the presiding officer
correct what appear to be inharmonious rulings in the same decision.See LBP-
98-10, 47 NRC 288, 296 (1998); LBP-98-17, 48 NRC 69, 73-74 (1998);see also
LBP-00-31, 52 NRC 340, 342 (2000).
MEMORANDUM AND ORDER
(Denying Motion for Reconsideration Regarding LBP-01-34)
Pending with the Licensing Board is the December 6, 2001 motion of
Applicant Private Fuel Storage, L.L.C. (PFS), seeking reconsideration of the
Board’s November 30, 2001 decision, LBP-01-34, 54 NRC 293 (2001), denying
a PFS request for summary disposition regarding contention SUWA B, Railroad
Alignment Alternatives. In responses filed December 13, 2001, the NRC Staff
andIntervenorSouthernUtahWildernessAlliance(SUWA)offeropposingviews
regarding the validity of the PFS request, the Staff asserting the motion has merit
and should be granted, while SUWA contends that the Board should deny
reconsideration.
For the reasons set forth below, we deny the PFS reconsideration request.
I. BACKGROUND
In LBP-01-34, 54 NRC at 295-96, we set forth the background regarding our
admission of contention SUWA B, in which Intervenor SUWA challenges the
adequacyof the NationalEnvironmentalPolicy Act (NEPA) range of alternatives
analysis afforded for the proposed Low Corridor rail spur on which spent nuclear
fuel would be transported by train into the proposed PFS Skull Valley, Utah 10
C.F.R. Part 72 independent spent fuel storage installation (ISFSI). Further, in
that issuance we held that, notwithstanding Intervenor SUWA’s failure to follow
the dictates of 10 C.F.R. §2.749(a) and provide a statement of material facts in
dispute controverting the statement of material facts not at issue submitted by
PFS in support of its dispositive motion, we were declining to grant summary
disposition in favor of Applicant PFS. As we explained in that opinion, we did so
basedontheStaff’sacknowledgmentthatithadnotfullyanalyzed,andthuscould
not express an opinion on, the validity of the purported PFS undisputed material
491
factual statements regarding an alternative rail corridor alignment. Although not
addressed in the Staff’s June 2000 draft environmental impact statement (DEIS),
this alignment nonetheless was one of four alternatives relied upon by PFS as
supporting a summary merits determination in its favor.See id.at 302-03 (citing
10 C.F.R. §51.70(b) (Staff must independently evaluate and be responsible for
all information used in DEIS).
In its December 6, 2001 motion seeking reconsideration of this ruling, PFS
proffers several arguments it asserts compel a different result. First, PFS declares
that in the face of the SUWA failure to contest any of its statement of material
facts not in dispute, notwithstanding the Staff’s ‘‘no opinion’’ position regarding
a number of the material facts purported to support one of the four alternatives,
i.e., the so-called West Skull Valley Alternative, there clearly is no material
factual dispute relative to the other three alternatives discussed in its dispositive
motion and, as such, summary disposition should be granted as to those.See
[PFS] Motion for Reconsideration of Ruling on the [PFS] Motion for Summary
Disposition of [SUWA] Contention B (Dec. 6, 2001) at 2-5 [hereinafter PFS
Reconsideration Motion]. In this regard, PFS notes that in a previous summary
disposition ruling regardingcontention Utah K/ConfederatedTribes B, the Board
entered summary disposition in favor of PFS on certain matters despite the fact
that the Staff had not yet reached a conclusion regarding those items.See id.
at 3 & n.3 (citing LBP-01-19, 53 NRC 416 (2001)). Additionally, PFS asserts
that the Staff’s ‘‘no opinion’’position relative to the PFS material facts regarding
the fourth alternative was not a bar to the entry of summary disposition because
the Staff indicated it anticipated this alternative would result in impacts similar
to or greater than those of the Applicant’s preferred Low Corridor rail spur
proposal.See id.at 5-6. Finally, PFS asserts even though the Staff may not
have fully completed its analysis of one of the proffered PFS routes, the Board is
authorized to evaluate the additional alternative proffered by PFS and, if it finds
it adequate, amend the agency’s environmental record of decision to incorporate
its determination.See id.at 6-9.
The Staff agrees with PFS in all material respects. Initially, the Staff declares
that the Board has misconstrued its statements regarding the status of its review
of the PFS West Skull Valley Alternative. Acknowledging that it did not review
this matter in its June 2000 DEIS and could not address the specifics of the
PFS material facts relating to that alternative because it had not received the
‘‘‘specific design details or a detailed alignment for this alternative,’’’ the
Staff nonetheless asserts it did consider the alternative in responding to the
PFS dispositive motion and was able to reach the ultimate judgment that the
impacts involved were comparable to or greater than what would be involved
in the Low Corridor alternative so as to support the PFS motion. NRC Staff’s
Response to [PFS] Motion for Reconsiderationof Ruling on the [PFS] Motion for
Summary Disposition of [SUWA] Contention B (Dec. 13, 2001) at 6-8 (quoting
492
NRC Staff’s Response to [PFS] Motion for Summary Disposition of Contention
SUWA B—RailroadAlignmentAlternatives(July19,2001)unnumberedattach.
at 5 (Affidavit of Gregory P. Zimmerman Concerning Contention SUWA B))
[hereinafter State Response]. Further, while declaring it is within the Board’s
authority not to parse a contention on summary disposition, the Staff maintains
that doing so in this instance would reduce the multiplicity of factual issues
for hearing, thereby expediting the proceeding.See id.at 8. Finally, the Staff
maintains that, regardless of what requirements may be imposed upon the Staff
relative to the independent analysis of alternatives in a DEIS, the Board is free
to modify the environmental record of decision by way of a summary disposition
ruling such as the one sought by PFS.See id.at 8-10.
Not unexpectedly, SUWA does not agree with the PFS and Staff positions
regarding reconsideration. SUWA declares that whatever problems are asserted
to arise in connection with the SUWA dispositive motion response, the Board’s
ruling made clear that these were irrelevant to its ultimate ruling rejecting the
PFS request based on a perceived deficiency in the agency’s NEPA process.
See [SUWA] Response (and Objection) to [PFS] Motion for Reconsideration of
Ruling on SUWA’s Contention B (Dec. 13, 2001) at 1-3. Further, SUWA asserts
that contrary to the suggestions of PFS and the Staff, the Board cannot grant
summary disposition regarding the West Skull Valley Alternative because that
would involve the type of factual determinations that the Board cannot make at
this stage of the proceeding.See id.at 3-4.
II. ANALYSIS
As we have indicated earlier in this proceeding relative to reconsideration
requests:
A properly supported reconsideration motion is one that does not rely upon (1) entirely new
theses or arguments, except to the extent it attempts to address a presiding officer’s ruling that
could not reasonably have been anticipated,see Louisiana Energy Services, L.P.(Claiborne
Enrichment Center), CLI-97-2, 45 NRC 3, 4 & n.1 (1997) (citing cases); or (2) previously
presented arguments that have been rejected,see Nuclear Engineering Co.(Sheffield, Illinois
Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 5 (1980). Instead, the
movant must identify errors or deficiencies in the presiding officer’s determination indicating
the questioned ruling overlooked or misapprehended (1) some legal principle or decision
that should have controlling effect; or (2) some critical factual information.See Georgia
Power Co.(Vogtle Electric Generating Plant, Units 1 and 2), LBP-94-31, 40 NRC 137, 140
(1994);Philadelphia Electric Co.(Limerick Generating Station, Units 1 and 2), LBP-83-25,
17 NRC 681, 687,rev’d and remanded on other grounds,ALAB-726, 17 NRC 755 (1983).
Reconsideration also may be appropriately sought to have the presiding officer correct what
appear to be inharmonious rulings in the same decision.See LBP-98-10, 47 NRC 288, 296
(1998).
493
LBP-98-17, 48 NRC 69, 73-74 (1998);see also LBP-00-31, 52 NRC 340,
342 (2000). In this instance, at least as presented by PFS and the Staff,
the bases supporting the requested reconsideration arguably fall into the
category of arguments relating to an unanticipated presiding officer ruling and
misapprehended factual information.
Addressing then the parties’ assertions regarding the Board’s authority/ability
toruleonthePFS requestforsummarydispositionofcontentionSUWA B,
1 aswe
observedinLBP-01-34,54NRCat302-03&n.5,10C.F.R.§51.70(b)specifically
charges ‘‘the NRC Staff’’ with the responsibility for evaluating all information
used in a DEIS. We consider this regulatory directive a clear indication of the
Commission’s intent that the Staff’s assessment of relevant information is an
important component in the appraisal of any NEPA issues prior to the issuance
of a Final Environmental Impact Statement (FEIS). Accordingly, whatever may
be the case relative to the Staff’s assessment of information concerning Atomic
Energy Act–related public health/safety/common defense and security matters,
see LBP-01-19, 53 NRC at 456 (granting summary disposition regarding safety
matter in the absence of Staff position on PFS undisputed material facts), some
form of Staff evaluation of any information purportedly germane to reaching a
Board merits disposition of pre-FEIS environmental matters is a prerequisite to
such determination.
2 We thus reject this claim as a basis for revising LBP-01-34,
albeit noting that whether (and to what degree) such information, once assessed
by the Staff, would support summary disposition is a separate matter.
We likewise reject the notion supported by PFS and the Staff that we are
not constrained by the Staff’s admitted inability to express an opinion about the
validity of the specific PFS undisputed material factual statements regarding the
Western Skull Valley Alternative because of the unavailability of design and
alignment details. As this argument goes, the Staff nonetheless afforded any
requisiteassessment ofthe new PFS informationby reasonofits stated agreement
with the PFS conclusion that this alternative would have environmental impacts
the same as or greater than those of the Low Corridor rail spur. This seems
to suggest that, in this instance, a conclusion about the sum of the whole can
be reached without an assessment of its individual parts. Yet, elsewhere in this
proceeding, in the apparent exercise of its independent assessment role relative
to NEPA, the Staff has taken pains to identify any corrections it perceives are
1 Of course, SUWA’s failure to provide a statement of material facts at issue did not relieve the Board of the
responsibility of reviewingthe PFS showingregarding purported undisputedfactsto ensurethatsummary disposition
was appropriate.See LBP-01-30, 54 NRC 231, 235 n.5 (2001).2 Although the Applicant suggests that this determination does not square with the fact that the agency’s rules
of practice do not preclude the entry of summary disposition absent a Staff response to such a motion,see
PFS Reconsideration Motion at 9, we note that in the context of a pre-FEIS summary disposition motion by an
applicant, confirmation of such a Staff assessment could be provided by reference to any Staff DEIS findings or, in
instances in which information not assessed in the DEIS is relied upon to support a dispositive motion, a functional
equivalent.
494
necessary to PFS undisputed material factual statements, thereby attempting to
ensure the integrity of the NEPA decisional record.See NRC Staff’s Response to
[PFS]MotionforSummaryDispositionofUtahContentionO— Hydrology(July
19, 2001) unnumberedattach. at 2-5 (Affidavit of Richard H. Ketelle Concerning
Utah Contention O — Hydrology). In this instance, the same approach seems
warranted before summary disposition would be appropriate.
3
Finally, in response to the PFS request that we grant summary disposition
relative to the other three rail line alternatives discussed, as the Staff notes, the
Board has considerable latitude in determining the extent to which it will grant
what is essentially partial summary disposition. In this instance, based on the
potential interrelationship of the various alternatives in any overall analysis of
NEPA compliance and our assessment of the limiting time likely to be required
to hear the entire matter, we have declined to take that approach.
III. CONCLUSION
Although PFS has put forth appropriate grounds for requesting reexamination
by the Licensing Board of its ruling in LBP-01-34 declining to enter summary
disposition in its favor on contention SUWA B, we are unable to agree with PFS
(and the Staff) that those grounds warrant revision of our ruling. We thus deny
the PFS reconsideration motion.
3 As the Staff point out, the FEIS in this proceeding is scheduled to be issued sometime in the near future, an event
it asserts could provide the basis for a new or renewed summary disposition motion regarding contention SUWA B.
See Staff Response at 10 n.9;see alsoPFS Reconsideration Motion at 10 n.15. Putting aside the fact that the existing
general schedule for this proceeding does not contemplate such a motion, with an evidentiary hearing regarding this
and other outstanding contentions scheduled to begin in April 2002, such a filing is likely to engender dismissal in
accordance with 10 C.F.R. §2.749(a) or result in a deferred schedule for addressing this issue.
495
For the foregoing reasons, it is, this nineteenth day of December 2001, OR-
DERED that the December 6, 2001 motion of Applicant PFS for reconsideration
of the Licensing Board’s decision in LBP-01-34, 54 NRC 293 (2001), is denied.
THE ATOMIC SAFETY AND
LICENSING BOARD
4
G. Paul Bollwerk, III, Chairman
ADMINISTRATIVE JUDGE
Jerry R. Kline
ADMINISTRATIVE JUDGE
Peter S. Lam
ADMINISTRATIVE JUDGE
Rockville, Maryland
December 19, 2001
4 Copies of this Memorandum and Order were sent this date by Internet e-mail transmission to counsel for (1)
Applicant PFS; (2) Intervenors Skull Valley Band of Goshute Indians, Ohngo Gaudadeh Devia, Confederated Tribes
of the Goshute Reservation, SUWA, and the State; and (3) the Staff.
496
Cite as 54 NRC 497 (2001)LBP-01-39
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
Michael C. Farrar,Chairman
Dr. Jerry R. Kline
Dr. Peter S. Lam
In the Matter of Docket No. 72-22-ISFSI
(ASLBP No. 97-732-02-ISFSI)
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) December 26, 2001
In this proceeding concerning the application of Private Fuel Storage, L.L.C.
(PFS), under 10 C.F.R. Part 72 to construct and operate an independentspent fuel
storage installation (ISFSI), the Licensing Board, acting pursuant to 10 C.F.R.
§2.749, denies a PFS request for summary disposition in its favor regarding
contention Utah L, Geotechnical, and late-filed contention QQ, Seismic Stability.
The Licensing Board finds that material factual disputes exist concerning the
seismic design basis of the ISFSI.
RULES OF PRACTICE: DISCOVERY
Just as in the entire course of the proceedingan applicant is permitted to adjust
its filings in response to Staff inquiries and additional information it obtains,
discovery provides an intervenor the opportunity to adjust the strategic approach
it is taking to the prosecution of its contention. Once the stated bases demonstrate
that a contention is to be taken seriously, any number of later developments will
also guide and control just how that contention does or does not move into the
actual hearing process. On the other hand, an applicant can use the discovery
497
process to pin down an intervenor’s experts, gaining from them, for example,
concessions that their theories do not take them as far as first thought, or that
deficiencies perceived in an applicant’s original analyses have been remedied by
further studies or investigations.
RULES OF PRACTICE: SUMMARY DISPOSITION
(EXPERT OPINION)
Summarydisposition is not a tool foruntanglingexpert affidavitsand deciding
‘‘which experts are more correct.’’Norfolk Southern Corp. v. Oberly,632 F.
Supp. 1225, 1243 (D. Del. 1986),aff’d on other grounds,822 F.2d 388 (3d Cir.
1987).
RULES OF PRACTICE: SUMMARY DISPOSITION (ROLE OF
LICENSING BOARD)
Although trial courts facing conflicting opinion must focus on each opinion to
ensure that it is sufficiently grounded in a factual basis, the weighing of expert
conclusions should be left to a trial where the trier of fact will have the benefit
of cross-examination to assist in its evaluations. These holdings also apply to
licensing boards, even though they have the role of both ruling on summary
disposition motions and being the ultimate trier of fact because the trial process
itself — which allows for vigorous inquiry of witnesses and probing for a basis
for drawing inferences and finding ultimate facts — can go a long way toward
illuminating the disputes and the strengths and weaknesses of the competing
experts’ opinions.
RULES OF PRACTICE: SUMMARY DISPOSITION
The Commission’s Statement of Policy on Conduct of Adjudicatory Proceed-
ings,CLI-98-12,48NRC18,20-21(1998),reflectsthattheCommissiondisfavors
the commitment of time, energy, and resources by witnesses, counsel, and board
memberstotheconsiderationofsummarydispositionmotionsthathavenochance
of success because they involve complex factual/opinion disputes that patently
can be resolved only in a hearing.
RULES OF PRACTICE: MOTIONS TO STRIKE
Motions to strike and similar requests are appropriate where it is clear that
matter is extraneous to the thrust of the contention and should be stricken (or
rejected at the outset). It must be recognized, however, that when there is
498
an interdependence of facts and opinions, caution must be exercised against
artificially trying to separate them, for it may turn out that considering that
strickenmatterwouldhavebeenmosthelpfulin reachinga decisiononthe merits.
MEMORANDUM AND ORDER
(Ruling on Applicant’s Motion for Summary Disposition of Part A of
‘‘Contention Utah L, Geotechnical’’ and on Related Matters)
Introduction and Summary
The State of Utah has been opposing the plans of a consortium of electric
utility companies, called Private Fuel Storage, L.L.C. (PFS, or the Applicant), to
construct within the State’s borders, on the reservation of the Skull Valley Band
ofthe GoshuteIndians,anabovegroundfacilityforthe temporarystorageof spent
fuelfromnuclearpowerplants.1 TheState’s manychallengestoPFS’s application
for a Nuclear Regulatory Commission license have, in this forum, taken the form
of the ‘‘contentions’’ — allegations of safety and environmental inadequacies in
the planned PFS facility — called for by the NRC’s rules.
Although several of the State’s contentions have already been the subject of a
full evidentiary hearing,
2 or are destined for such a hearing (see notes 10 and 35,
below), a large number have previously been rejected by this Licensing Board
3
on a variety of grounds. Some were dismissed at the outset for such reasons as
not providing necessary supporting documentation, not raising issues litigable in
this forum, and/or not furnishing sufficient justification for being filed outside
established time periods.
4
Other contentions, although initially admitted as appropriate to litigate, were
later dismissed by this Board on ‘‘summary disposition,’’ a procedure invoked
1 As those familiar with the area know, the facility would be located some 50 miles southwest of Salt Lake City,
between Tooele and the Dugway Proving Grounds.
2 A hearing was conducted in mid-2000 on the merits of several contentions involving financial assurance and
emergency planning. A partial initial decision was issued on the latter. LBP-00-35, 52 NRC 364 (2000),petition for
review denied,CLI-01-9, 53 NRC 232 (2001). Later developments have left the financial assurance issues yet to be
decided.
3 To this point, the Licensing Board assigned to this proceeding has been chaired by Chief Administrative Judge
G. Paul Bollwerk, III. Pursuant to, and asdetailed in, a December 19, 2001, Notice of Reconstitution, responsibilities
for the completion of the case are being split between thatoriginal board, chaired by Chief Judge Bollwerk, and this
second board, chaired by Judge Michael C. Farrar (with both boards having the same technical members, Judges
Jerry R. Kline and Peter S. Lam). Unless the context demandsotherwise or we so indicate, references herein to ‘‘this
Board’’ or ‘‘the Licensing Board’’ are not intended to distinguish between rulings made by the original board and
by this second Board, for there is no lack of continuity in our respective roles.
4 We do not pause in this opinion to recite this Board’s many prior decisions involving rulings on the initial
admissibility of contentions (as referred to in the text above) or on summary disposition of contentions previously
admitted (see next paragraph of text). We note simply that there have been some 40 such decisions, involving some
120 contentions.
499
when there are no significant factual disputes about a matter and controlling legal
principles warrant resolving it without the formal presentation of evidence at a
trial. As to those issues, the Applicant was able to convince us that no evidentiary
hearing was necessary to determine that the State’s claims lacked merit.
5
The Applicant now urges us to take similar action by ruling summarily in its
favoronanotherStateclaim,theoneembodiedinso-calledPartAof‘‘Contention
Utah L, Geotechnical.’’ By this claim,
6 the State has been asserting that, contrary
to the standard mandate long imposed by the Commission on the facilities it
licenses,7 the facility is not properly designed to withstand the potential risk of
earthquakes. In that connection, proper design usually involves predicting what
type or level of seismic event should be anticipated and guarded against.See, for
example, Consolidated Edison Co. of New York (Indian Point Station Units 1, 2,
and 3), ALAB-561, 10 NRC 410, 411 (1979) (dissenting opinion).
Although the Applicant has put forward a number of undisputed facts that the
State does not contest, we nonetheless decline to grant summary disposition to
PFS on Part A of Contention Utah L.For the State’s countervailing presentation
— including information provided by the State’s array of experts on seismology
and related topics — raises a genuine dispute about a number of other key
factual matters, including the ultimate factual conclusions we should draw from
underlying technical facts.
InrulingintheState’sfavoratthispreliminaryjuncture,weexpressnoopinion,
of course, about what the evidence will later establish or what the eventual result
will be. We simply rule that there is sufficient dispute between the parties that the
controversy must go to a trial for resolution.
In this opinion,
8 we also rule on related matters involving the scope of the
State’sgeotechnicalcontention.WeresolvethosemattersessentiallyintheState’s
favor,findingthattheunderlyingissuesaresoinextricablyintertwinedthatwewill
(1)reject PFS’s suggestion that we carve out some aspects as inappropriate for
5 In other instances,after discovery of additional facts bearing on particular claims, the State withdrew contentions
on the grounds that its concerns had been satisfied.
6 This Memorandum and Order directly involves only ‘‘Part A’’ of the State’s geotechnical contention. ‘‘Part B,’’
challenging the Applicant’s request for an exemption from certain regulatory requirements, proceeded initially in a
somewhat different direction, but has more recently become part of the matters before us.See LBP-01-3, 53 NRC
84 (2001),aff’d and remanded for further proceedings,CLI-01-12, 53 NRC 459 (2001).
A motion for summary disposition of Part B was filed by PFS on November 9, 2001, and responses were filed on
December 7, 2001. In the wake of our recent ruling on a Part B discovery dispute (unpublished order, November
21, 2001), we gave the State until 7 days after that discovery is completed — but no later than December 21 —
to amend its Part B responses based on the additional discovery allowed. Thus, we should soon be able to rule on
the Part B summary disposition motion, likely applying the same principles set out in this opinion to the particular
circumstances presented there.
7 See 10 C.F.R. Part 50, Appendix A, General Design Criterion 2; 10 C.F.R. Part 100, Appendix A; 10 C.F.R.
§72.102;Virginia Electric and Power Co.(North Anna Power Station, Units 1, 2, 3, and 4), ALAB-256, 1 NRC 10,
12-13 (1975).8 The body of this opinion consists of four main parts — A. The Pending Matters and the Conflicting Positions
(pp. 501-04); B. The Governing Legal Standards (pp. 504-12); C. The Resulting Rulings (pp. 512-22); and D. The
Upcoming Hearing (pp. 522-24). Those are followed by our Order (p. 524-25).
500
hearing and (2)allowthe State to adda new, late-arisingchallenge (‘‘Contention
Utah QQ’’). In light of these rulings, the hearing
9 will encompass the full range
of the State’s currently expressed geotechnical concerns.
10
A. The Pending Matters and the Conflicting Positions
In this licensing proceeding under 10 C.F.R. Part 72 for an independent spent
fuel storage installation (ISFSI), the matters now before us all revolve around
Contention Utah L, Geotechnical, framed by the State (in a supplemental petition
timely filed in November 1997) as follows (footnote omitted):
The Applicant has not demonstrated the suitability of the proposed ISFSI site because the
LicenseApplication and[SafetyAnalysis Report]donotadequately addresssiteandsubsurface
investigations necessary todetermine geologic conditions, potential seismicity, groundmotion,
soil stability and foundation loading.
As will be discussed (see pp. 504-07, below), a party has to submit a ‘‘basis’’
for each contention. Here, the State in fact submitted four bases to support
ContentionL.11 Thesebasesembracethefollowing issues: (1)surfacefaulting;(2)
ground motion; (3) characterization of subsurface soils, including (a) subsurface
investigations, (b) sampling and analysis, and (c) physical property testing for
engineering analysis; and (4)soil stability and foundation loading.
Upon review of the contention and its supporting bases, we admitted it into
the proceeding. LBP-98-7, 47 NRC 142, 253,reconsideration granted in part
and denied in part on other grounds,LPB-98-10, 47 NRC 288,aff’d on other
grounds,CLI-98-13, 48 NRC 26 (1998). The parties then conducted extensive
discovery of the facts and expert opinions underlying each other’s positions.
We did not allow into the proceeding the bulk of two additional contentions
(UtahEEandGG)belatedlysubmittedbytheStateinDecember1997inanattempt
toraisefurtherconcernsaboutthefacility’sseismicdesignparameters. Contention
9 The evidentiary hearing on this issue, andon other matters not summarily resolved (see notes 35 and 36, below),
is currently scheduled to begin in Salt Lake City on Monday, April 8, 2002, and was anticipated to last 3 weeks.
10Among the other matters to be considered at that trial is the State’s ‘‘Contention Utah K,’’ claiming that the
facility has not been properly designed to withstand potential ‘‘credible accidents,’’ including those caused by
aircraft. The Commission has recently handed down an important ruling guiding our consideration of one of the
standards applicable to that subject. CLI-01-22, 54 NRC 255 (2001),aff’g LBP-01-19, 53 NRC 416 (2001).
For our part, we issued earlier this month an opinion indicating that the State’s recently proffered ‘‘terrorism’’
contention (Contention Utah RR), based on the events of September 11, may not under existing rules be made the
subject of our hearing. LBP-01-37, 54 NRC 476 (2001).See also CLI-01-22, 54 NRC at 257 n.3 (which refers
also to the State’s petition to the Commission to suspend any further proceedings herein). Recognizing that the
Commission has been heavily involved in reviewing its policies in the aftermath of the terrorist events, we referred
our ‘‘Utah RR’’ ruling to the Commission for immediate review. LBP-01-37, 54 NRC at 487-88. Having done so,
we are in position to obtain the benefit of any early guidance the Commission is able to provide on this score, as it
analyzes the overarching question of how best to protect the public in the post-9/11 world.11See ‘‘State of Utah’s Contentions on the Construction and Operating License Application . . .’’ at 80-95 (Nov.
23, 1997).
501
Utah EE — ‘‘Failure to Demonstrate Cask-Pad Stability During Seismic Event’’
— questioned, among other things, the adequacy of PFS’s analysis regarding the
site-specific seismic stability of one of the two PFS-designated cask systems to
be used at the facility, namely the Holtec HI-STORM 100 system. The similarly
titled Contention Utah GG asserted that PFS has failed to demonstrate that the
other cask system, the so-called TranStor system, will remain stable during a
seismic event. We largely denied admission of these contentions in April 1998,
based on a combination of reasons including late filing, but did admit one portion
(paragraph 5) of Contention Utah GG as revised. LBP-98-7, 47 NRC at 206-09,
210-11, 257.
12
For similar reasons, we later rejected Contention Utah JJ, dealing with the
assertedly inadequate PFS analysis of the implications of ‘‘possible co-seismic
rupture’’ involving the Stansbury Fault and other faults. We found that the State
should have acted faster than it did after receiving the information that triggered
this contention. LBP-00-16, 51 NRC 320 (2000).
1. Motion for Summary Disposition
The principal matter now pending before us is the Applicant’s motion for
summary disposition of Utah’s original geotechnical contention. As noted above,
thatcontentionchallengestheadequacyofPFS’ssiteandsubsurfaceinvestigations
necessary to determine geologic conditions, potential seismicity, ground motion,
soil stability, and foundation loading.
PFS filed its summary dispositionmotion on December30, 2000,after discov-
ery was completed. In arguing that no genuine issue of material fact exists, PFS
pointed, among other things, to its having performed since the contention was
filed extensive geotechnical studies and investigations that it claims address all
of the State’s concerns. In support of that position, PFS submitted a ‘‘Statement
of Material Facts on Which No Genuine Dispute Exists’’ (Dec. 30, 2000) [here-
inafter PFS Undisputed Facts], along with the supporting affidavits of several
ofitsexperts: KevinJ.Coppersmith,RobertR.Youngs,JohnC.Clark, andPaulJ.
12Later, the State withdrew the limited aspect of Contention Utah GG that we had admitted, because PFS had, in
its seventeenth amendment to its license application, removed reference to the TranStor cask system. ‘‘. . . Request
to Withdraw Contention . . . ,’’ September 14, 2000, granted October 6, 2000. In withdrawing, however, the State
indicated that the ‘‘cask sliding analysis’’ shortcomings allegedly applicable to the TranStor casks also bore on the
Holteccasks, andurged theNRCStaff to‘‘require PFS to perform a morecomplete analysis’’to address its concerns.
As we discuss below (p. 519), the circumstances surrounding Contention GG’s late filing, partial admission, and
eventual withdrawal have some continued significance.
502
Trudeau.13 PFS also relied upon certain admissions contained in the deposition
testimony of several State witnesses.
14
In its January 30, 2001, response, the State urged us not to grant summary
disposition. To that end, the State included a statement of the material facts
that it contends are in dispute, and provided several supporting affidavits from
its experts: M. Lee Allison, Walter J. Arabasz, Steven F. Bartlett, and Farhang
Ostadan.15 The State also relied on portions of the depositiontestimony of several
PFS experts.
For its part, the NRC Staff supports the PFS motion, perceiving no remaining
genuine issues of material fact. Its January 30 filing urged that the undisputed
factsdemonstratethattheissuespreviouslyraisedbytheStatehavebeenresolved.
In support of its position, the Staff submitted the affidavits of John Stamatakos
and Goodluck I. Ofoegbu, both of the Southwest Research Institute (SwRI).
16
2. Motion To Strike
Although the matter then appeared ripe for decision, new pleadings have been
filed intermittently throughout the remainder of this year. The first came within
10 days when, on February 9, PFS filed a motion to strike portions of the State’s
response to the PFS motion for summary disposition. PFS argues that the State
was improperly attempting in its response to raise issues beyond the scope of
admitted Contention Utah L; PFS finds specific fault with portions of the State’s
Disputed and Relevant Material Facts,portions of the Arabasz Declaration and
Bartlett Declaration, and nearly all of the Ostadan Declaration.
The State responded to PFS’s motion to strike on February 20, arguing that
the motion not only lacked merit but also was, in reality, an impermissible reply
to the State’s response to the summary disposition motion. For its part, the NRC
Staff’s response agreed with PFS that the portions of the State’s materials cited
by the Applicant should be stricken as beyond the scope of Contention Utah L.
13See PFS Dispositive Motion Exh. A, Declaration of Dr. Kevin J. Coppersmith [hereinafter Coppersmith Decl.];
id.Exh. B, Declaration of John Clark [hereinafter Clark Decl.];id.Exh. C, Declaration of Dr. Robert Y.[sic] Youngs
[hereinafter Youngs Decl.];id.Exh. D, Declaration of Paul Trudeau [hereinafter Trudeau Decl.].
14See PFS Dispositive Motion Exh. E, Excerpts from Deposition of Dr. Walter J. Arabasz [hereinafter Arabasz
Dep.];id.Exh. F, Deposition of Barry J. Solomon;id.Exh. G, Excerpts from the Deposition of Dr. M. Lee Allison;
id.Exh. H, Excerpts from Deposition of Dr. Steven F. Bartlett and Dr. Farhang Ostadan.15See State ResponseExh.1, Declaration of Dr. M.LeeAllison [hereinafter Allison Decl.];id.Exh.2, Declaration
of Dr. Walter J. Arabasz [hereinafter Arabasz Decl.];id.Exh. 3 Declaration of Dr. Steven F. Bartlett [hereinafter
Bartlett Decl.];id.Exh. 4, Declaration of Dr. Farhang Ostadan [hereinafter Ostadan Decl.].
16See ‘‘NRC Staff Response . . . ,’’ unnumbered attach. 1, Affidavit of John Stamatakos;id.,unnumbered attach.
2, Affidavit of Goodluck I. Ofoegbu.
503
3. Motions To Admit and To Modify Late-Filed Contention
While the Board was involved in deciding numerousother matters in this case
(see LBP-01-13, 53 NRC 319 (2001), and LBP-01-19, 53 NRC 416 (2001)), the
controversy over seismic matters soon became more complex with the filing, on
May16, ofthe State’s motionto addContentionUtahQQ, dealingwith assertedly
late-breaking seismic matters involving revised calculations submitted by the
Applicant.See State of Utah’s Request for Admission of Late-Filed Contention
Utah QQ (Seismic Stability). The Staff and the Applicant both responded on
May 30, arguing that the contention should not be admitted into the proceeding.
The Applicant believed the contention faulty on both substantive and timeliness
grounds. For its part, the Staff thought that the contention’s substance was
sufficiently well presented but, like the Applicant, argued that good cause for its
belatedness did not exist because similar matters could have been raised earlier.
In fact, so goes the argument, the State had been rebuffed previously for raising
the same matters in untimely fashion.
Less than 3 weeks later, while that motion was pending, the State requested
on June 19 that it be allowed to modify the basis of pending Contention Utah QQ
to reflect recent filings that the Applicant had made. On July 3, the Applicant
opposed this modification request, but the NRC Staff thought that the proposed
modification reflected, at least in part, a legitimate approach.
A similar development occurred less than 2 months later when, on August 23,
the State filed a second request to modify the basis of pending Contention Utah
QQ, again noting that the Applicant had filed a new calculation, which the State
wished to challenge. The responses filed on September 7 followed the previous
pattern, i.e., the Applicant opposed the request while the NRC Staff believed that
it was in part valid.
The Applicant’s September 11 response triggered yet another set of papers
when Utah moved, on September 12, to strike Exhibit 1 of that response on the
grounds that it (1) incorporated an illegitimate attempt to avoid the rules limiting
thelengthofbriefsand(2)containeduntruematerial. TheStaffandtheApplicant,
in September 24 filings, indicated their belief that the State’s motion to strike was
not well taken.
B. The Governing Legal Standards
All the above ContentionUtah L ‘‘Part A’’ matters concerningthe seismology
of the proposed site are now ready for decision. Review of the legal standards
governing our decision begins with the NRC’s specific rules regarding the filing
of contentions and of supporting bases for those contentions. It is necessary to
begin there because — even though the principal matter before us is whether
504
summary disposition is appropriatehere — we also have pending a motion to add
a contention, and two motions to amend its stated bases.
1. Filing Contentions
Inthecourseofthisproceeding,we havehadnumerousoccasionstoset outthe
rules that govern the filing of contentions and the supporting documentation they
must have to be admitted into the proceeding. In a nutshell, the Commission’s
rules in this regard are strict; their very specific language leaves little doubt about
their requirements (10 C.F.R. §2.714(b)(2)):
Each contention must consist of a specific statement of the issue of law or fact to be raised or
controverted. In addition, the petitioner shall provide the following information with respect
to each contention:
(i) A brief explanation of the bases of the contention.
(ii) Aconcise statement ofthealleged facts orexpert opinion whichsupport the contention
and on which the petitioner intends to rely in proving the contention at the hearing, together
with references to those specific sources and documents of which the petitioner is aware and
on which the petitioner intends to rely to establish those facts or expert opinion.
(iii) Sufficient information (which may include information pursuant to paragraphs
(b)(2)(i) and (ii) of this section) to show that a genuine dispute exists with the applicant
on a material issue of law or fact. This showing must include references to the specific portions
of the application (including the applicant’s environmental report and safety report) that the
petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes
that the application fails to contain information on a relevant matter as required by law, the
identification of each failure and the supporting reasons for the petitioner’s belief. On issues
arising under the National Environmental Policy Act, the petitioner shall file contentions based
on the Applicant’s environmental report.
Lest there be any mistake, the rules go on to prescribe that a board shall ‘‘refuse
toadmitacontentionif...[t]hecontentionandsupporting material fail to satisfy
the requirements’’ quoted above. 10 C.F.R. §2.714(d)(2)(i).
Thus, where federal courts permit considerably less-detailed ‘‘notice plead-
ing,’’ the Commission requires far more to plead a contention. This was not
always the case (see, for example, Houston Lighting and Power Co.(Allen’s
Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980)), but
it has been the rule since 1989 — and, as will be seen below, that revised rule
serves a number of valid purposes.
In view of the significance the contentions pleading rule plays in putting our
current issues in context, we think it worthwhile to set out in full the thorough
history and explanation the Commission provided about the purposes of that rule
in Duke Energy Corp.(Oconee Nuclear Sation Units 1, 2, and 3), CLI-99-11, 49
NRC 328, 334-35 (1999) (emphasis added):
505
Our strict contention rule serves multiple interests. First, it focuses the hearing process
on real disputes susceptible of resolution in an adjudication. For example, a petitioner may
not demand an adjudicatory hearing to attack generic NRC requirements or regulations, or to
express generalized grievances about NRC policies.See North Atlantic Energy Services Corp.
(Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 217 n.8 (1999);Philadelphia Electric Co.
(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
Second,the rule’s requirement of detailed pleadings puts other parties in the proceeding on
notice of the Petitioners’ specific grievances and thus gives them a good idea of the claims they
will be either supporting or opposing.Finally,the rule helps to ensure that full adjudicatory
hearings are triggered only by those able to proffer at least some minimal factual and legal
foundation in support of their contentions.
In 1989 the Commission toughened its contention rule in a conscious effort to raise the
threshold bar for an admissible contention and ensure that only intervenors with genuine
and particularized concerns participate in NRC hearings. See Final Rule, Contentions, 54
Fed. Reg. at 33,168. By raising the admission standards for contentions, the Commission
intended to obviate serious hearing delays caused in the past by poorly defined or supported
contentions. Atthe time, hearings often were ‘‘delayed bymonths andeven years ofprehearing
conferences, negotiations, and rulings on motions for summary disposition.’’Yankee Atomic
Electric Co.(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 248 n.7 (1996) (citing
Carolina Power and Light Co.(Shearon Harris Nuclear Power Plant), LBP-85-5, 21 NRC 410
(1985), where 500 contentions were submitted,60 were admitted, and only 10 were actually
litigated after a period of 2
1/2 years of negotiations).
Prior to the contention rule revisions, licensing boards had admitted and litigated numerous
contentions that appeared to be based on little more than speculation. Indeed, in practice,
intervenors could meet the rule’s requirements merely ‘‘by copying contentions from another
proceeding involving another reactor.’’ Proposed Rule, Contentions, 51 Fed. Reg. 24,365,
24,366 (July 3, 1986). Admitted intervenors often had negligible knowledge of nuclear
power issues and, in fact, no direct case to present, but instead attempted to unearth a case
through cross-examination.See Cotter, Nuclear Licensing: Innovation Through Evolution
in Administrative Hearings, 34 Admin. L. Rev. 497, 505, 508 (1982).Congress therefore
called upon the Commission to make ‘‘fundamental changes’’ in its public hearing process to
ensure that ‘‘hearings serve the purpose for which they are intended: to adjudicate genuine,
substantive safety and environmental issues placed in contention by qualified intervenors.’’
H.R. Rep. No. 97-177, at 151 (1981).
The 1989 revisions to the contention rule thus insist upon ‘‘some factual basis’’ for an
admitted contention.54 Fed. Reg. at 33,171. The intervenor must ‘‘be able to identify some
facts at the time it proposes a contention to indicate that a dispute exists between it and
the Applicant on a material issue.’’Id.These requirements are intended to ‘‘preclude a
contention from being admitted where an intervenor has no facts to support its position and
[instead] contemplates using discovery or cross-examination as a fishing expedition which
might produce relevant supporting facts.’’Id.Although in quasi-formal adjudications like
license renewal an intervenor may still use the discovery process to develop his case and help
prove an admitted contention,contentions shall not be admitted if at the outset they are not
described with reasonable specificity or are not supported by ‘‘some alleged fact or facts’’
demonstrating a genuine material dispute. Id.at 33,170.
TheCommissionconcludedbystatingthatitwantedentertainedonly‘‘contentions
that are material and supported by reasonably specific factual and legal
allegations.’’ 49 NRC at 335.
506
As may be seen, then, the Commission has made it clear that those who want
to participate in its proceedings, and thereby to force an applicant for a license
to bear the heavy burden of such a proceeding, must themselves carry a heavy
initial burden. It is not sufficient to show up on the Commission’s doorstep, as
it were, with generalized complaints about a proposed facility or action. Instead,
complaints must be stated with great specificity, a basis for them must be put
forward, and indeed at a very early stage one who wishes to participate in the
proceedingmustgosofarastodescribein generaltermsthenatureoftheevidence
that will be put forward.
If a contention is not filed on time, its proponent faces an even greater burden.
In those instances, the rules prescribe a balancing test that considers five key
factors (10 C.F.R. §2.714(a)(1)):
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner’s interest will be protected.
(iii) The extent to which the petitioner’s participation may reasonably be expected to assist
in developing a sound record.
(iv) The extent to which the petitioner’s interest will be represented by existing parties.
(v) The extent to which the petitioner’s participation will broaden the issues or delay the
proceeding.
As the parties well know, we have had numerous occasions to apply these rules
during prior phases of this proceeding.In doing so earlier this year we observed
(LBP-01-13 (p. 504, above), 53 NRC at 324-25) (emphasis added):
In evaluating the admissibility of a late-filed contention,the first and foremost factor in
this appraisal is whether good cause exists that will excuse the late-filing of the contention.
See Commonwealth Edison Co.(Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8,
23 NRC 241, 244 (1986). And relative to our evaluation of that factor here, as we have noted
previously . . . , the good cause element has two components that impact on our assessment
of the timeliness of a contention’s filing: (1) when was sufficient information reasonably
available to support the submission of the late-filed contention; and (2) once the information
was available, how long did it take for the contention admission request to be prepared
and filed.See Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation),
LBP-99-3, 49 NRC 40, 46-48 (assessing late-filing factors relative to petition to intervene),
aff’d,CLI-99-10, 49 NRC 318 (1999). Moreover,relative to the four other factors,in the
absence of good cause there must be a compelling showing on the four remaining elements,
of which factors two and four — availability of other means to protect the petitioner’s interest
and extent of representation of petitioner’s interests by other parties — are to be given less
weight than factors three and five — assistance in developing a strong record and broadening
the issues/delaying the proceeding.See Braidwood,CLI-86-8, 23 NRC at 244-45.
Additionally, as we have noted recently, even if these factors support admission,
the contention itself must be admissible under the standards established in 10
C.F.R. §2.714(b)(2),(d)(2)andthe Commission’scase law.See LBP-01-37(note
10, above), 54 NRC at 484.
507
To recap the standards set out above: the Commission has adopted strict rules
about pleading contentions, and those rules serve an important purpose. Those
rulesareintendedtomakesurethatthosewhoareadmittedintotheCommission’s
proceedings are serious, and are prepared to make a valuable contribution.
2. Conducting Discovery
Given the role it plays in our decision today, we need address only briefly the
standards applicable to the next phase of the proceedings, the discovery process.
From an intervenor’s point of view, discovery provides the opportunity to put
more flesh on the bones of its contentions and the bases that it was able to state
at the outset.
17 Just as during the entire course of the proceeding an applicant
is permitted to adjust its filings in response to Staff inquiries and to additional
informationitobtains(ashasoftenbeendonehere,seenotes30and34,below),an
intervenor will be utilizing the discovery process to adjust the strategic approach
it is taking to the prosecution of its contention.
That is to say, providing ‘‘a brief explanation’’ (10 C.F.R. §2.714(b)(2)(i))
of the bases for contentions plays an important function in determining whether
that contention is a substantial one that can be admitted into the proceeding. But
once the stated bases demonstrate that a contention is to be taken seriously, any
numberof later developmentswill also guide and controljust how thatcontention
does or does not move into the actual hearing process. For example, much might
be learned by an intervenor that would lend further support to its view about the
issues after contentionsare filed. This mirrors what happens when, in response to
NRC Staff scrutiny or other developments, much is often added by the applicant
to support the application’s documentation and reasoning after a matter is first
noticed for hearing.
Of course, discovery also plays a limiting role. An applicant can use that
process to pin down an intervenor’s experts, gaining from them, for example,
concessions that their theories do not take them as far as first thought, or that
deficiencies perceived in the applicant’s original analyses have been remedied by
further studies or investigations. Indeed, PFS’s attempt to win summarily here is
in no small part quite properly based on the discovery it has conducted.
17As the Commission indicated (p. 506, above), even though an unsupported contention cannot be admitted on
the contemplation that discovery will lend it some support, where sufficient support has already been provided, an
intervenor may of course ‘‘use the discovery process to develop his case and help prove an admitted contention.’’
49 NRC at 335.
508
3. Moving for Summary Disposition
Once discovery is completed, it may be appropriate for an applicant to file
motions for summary disposition as to certain contentions. We say ‘‘may’’ be
appropriate because it should be clear to our practitioners that not every matter
or contention lends itself to summary disposition. Summary disposition is a
useful tool for resolving in short order those contentions that, after discovery is
completed, are shown by undisputed facts to have nothing to commend them.But
it is not a tool for trying to convince a Licensing Board to decide, on written
submissions, genuine issues of material fact that warrant resolution at a hearing.
In that regard, the basic standards for summary disposition, which we have
drawn upon many times in this proceeding and recently reiterated, bear repeating
here:
In an NRC proceeding, a party is entitled to summary disposition if the presiding officer
determines that there exists ‘‘no genuine issue as to any material fact and that the moving
party is entitled to a decision as a matter of law.’’ 10 C.F.R. §2.749(d). When reviewing a
motion for summary disposition, the Commission has used standards similar to those used by
the federal courts when ruling on motions for summary judgment under Rule 56 of the Federal
Rules of Civil Procedure.See Advanced Medical Systems, Inc.(One Factory Row, Geneva,
Ohio 44041), CLI-93-22, 38 NRC 98, 102-03 (1993).
Consistent with Rule 56, the moving party bears the initial burden of showing that no
genuine issue as to any material fact exists, which the party must do by a required statement
of material facts and any supporting documentation submitted with the requisite motion.See
Private Fuel Storage L.L.C.(Independent Spent Fuel Storage Installation), LBP-99-32, 50
NRC 155, 158 (1999). The opposing party must counter each adequately supported material
fact with its own statement of material facts in dispute and supporting documentation, or the
facts will be deemed admitted.See CLI-93-22, 38 NRC at 102-03. When responding, the
opposing party may not rely upon mere allegations or denials but must submit ‘‘specific facts
showing that there is a genuine issue of fact.’’ [footnote omitted] 10 C.F.R. §2.749(b).
LBP-01-30, 54 NRC 231, 235 (2001).
In addition to those basic principles about summary disposition, there are
corollary tenets that become crucial here — the nature of the guidelines that
control rulings on summary judgment in federal court (and, by accepted analogy
and routine practice, similar rulings on summary disposition here) when opinions
of competing experts differ.
As commentators and practitioners know, differences among experts may
occur at different factual levels: either about disputed baseline observations, or
about the ultimate facts or inferences to be drawn even where baseline facts may
be uncontested. Or, as the Supreme Court has put the distinction, there are at
509
one level ‘‘predicate’’ facts (also called ‘‘evidentiary’’ or ‘‘basic’’ facts) and at
another level ‘‘ultimate’’ facts, both subject to dispute.
18
With this distinction in mind, even a cursory review of the analogous federal
caselawgoverningsummaryjudgmentundertheFederalRulesofCivilProcedure
demonstrates that, when presented with conflicting expert opinion, trial courts
are reticent to grant summary judgment.See, e.g., Hudson Riverkeeper Fund v.
Atlantic Richfield Co.,138 F. Supp. 2d 482, 488-89 (S.D.N.Y. 2001), and cases
cited therein. When ruling on summary judgment, trial courts have indicated it is
not their function to untangle the expert affidavits and decide ‘‘which experts are
more correct.’’Norfolk Southern Corp. v. Oberly,632 F. Supp. 1225, 1243 (D.
Del. 1986),aff’d on other grounds,822 F.2d 388 (3d Cir. 1987). Of course, trial
courtsfacing conflictingexpert opinionmust focus on each opinion’s‘‘principles
and methodology’’ to ensure that it is sufficiently grounded in a factual basis.
Kannankeril v. Terminix International,128 F.3d 802, 807 (3d Cir. 1997).
19 But
the weighing of the expert conclusions should be left to a trial, where the trier of
fact will have the benefit of cross-examination to assist its evaluation. Ibid.
The force of the above holdings applies to NRC licensing boards even though
— unlike federal district court judges in cases where a jury is to be the ultimate
fact-finder — we have a dual role, ruling on summary disposition motions and
then ourselves becoming the trier of fact. But this does not mean we should —
or readily could — combine both functions in one step whenever one party or
another seeks to have us rule summarily. For, as has been seen, underlying the
courts’ reluctance to act summarily in the face of competing expert testimony is
the notion that the trial process itself — which allows for vigorous inquiry of
witnesses and probing for a basis for drawing inferences and finding ultimate
facts — can go a long way toward illuminating the disputes and the strengths
and weaknesses of the competing experts’ opinions. Thus, in Daubert (note 19,
above), the Supreme Court stressed the value of ‘‘vigorous cross-examination’’
by the parties in exposing shaky opinions (509 U.S. at 596); in our hearings,
questioning not only by the parties but also by the Board can likewise prove to be
decisive in enabling us to render a sound decision (see p. 523, below).
Our views on these matters are not only in keeping with federal court practice
but, we think, also fully consistent with Commission policy. Although the
Commission supports the efficiencies that can be gained by granting summary
18Mullins Coal Co. v. Director, OWCP,484 U.S. 135, 158 n.30 (1987) (quoting from County Court of Ulster
County v. Allen,442 U.S. 140, 156 (1979)).
19In this regard, the Supreme Court, in a casethat came up on summary judgment, has established ‘‘gatekeeping’’
standards to ensure that only opinions presented by recognized experts in the field and properly grounded in
scientifically sound methodology are accepted by the trial courts.Daubert v. Merrill Dow Pharmaceuticals,509
U.S. 579 (1993).See also Kumho Tire Co. v. Carmichael,526 U.S. 136, 151-52 (1999), indicating that the Daubert
factors are flexible ones and the gatekeeping inquiry must be tied to the facts of a particular case.
510
disposition in appropriatecases,
20 it has also expressed concernsabout overuse of
summary practice.Statement of Policy on Conduct of Adjudicatory Proceedings,
CLI-98-12,48NRC18,20-21(1998);cf.10C.F.R.§2.749(a)(citedbythisBoard
the other day in LBP-01-38, 54 NRC 490, 495 n.3 (2001)). In context, we think
that what the Commission disfavors is the commitment of time, and energy, and
resources — by witnesses, counsel, and Board members — to the consideration
of summary disposition motions that have no chance of success because they
involve complex factual/opinion disputes that patently can be resolved only in a
hearing.
This view is in keeping with the commentary recently published in connection
with the pending proposal to change the NRC’s Rules of Practice. There, in
response to public comments on its 1998 Policy Statement, the Commission
pointed out that, while there are times at which filing summary disposition
motions is appropriate, a judicious approach is required:
There may be times in the proceeding when these motions should not be entertained because
consideration of the motions would unduly delay or complicate proceedings by distracting
responding parties from addressing other pending issues. Moreover, there may be situations in
which the time required to consider summary disposition motions and responses and to issue
a ruling on these motions will substantially exceed the time needed to complete the hearing
and record on the issues. The licensing board is in a good position to determine when the use
of summary disposition would be appropriate and would not delay the ultimate resolution of
issues and the Commission will provide the boards the flexibility to make that determination
in most proceedings.
66 Fed. Reg. 19,610, 19,615 (Apr. 16, 2001).
In light of all the foregoing, we think the Commission would agree there are
issuessocomplexthatweshouldnotembarkonanextendedquesttoresolvethem
by summary disposition. Rather, particularly as the time for the hearing grows
near, it wouldbe muchbetterto conserveandredirectenergyandresources— the
parties’ and ours — from summary disposition practice
21 to careful management
20As do we.See, for example, Allen’s Creek (p. 505, above), 11 NRC at 552-53 (concurring opinion), and a
number of earlier decisions in this proceeding (see pp. 499-500, above).21We recognize that our analysis begs the question of how to determine in advancewhich issues are so complex
that an effort to obtain summary disposition will almost certainly fail. We can, of course, conserve Board resources
simply by ruling peremptorily after all the moving and opposing documents are in. But we cannot so readily
accomplish the Commission’s purpose of avoiding also the parties’misallocation of their efforts. If this concern
arises again here (see issues discussed under ‘‘Future Discovery,’’ p. 522, below) or elsewhere, an appropriate
case-management tool might be the convening of a post-discovery conference at which informal discussion of the
issues could make clear which ones seem ill-suited for summary handling. This tentative conclusion would not
preclude the filing of a summary disposition motion, but it would provide fair warning to the movant that its efforts
werelikelytobeinvain.
511
of and preparation for the hearing process itself, so that the goals of efficiency,
effectiveness, and fairness can most readily be met.
22
To that end, we spell out, in a companion unpublished opinion also issued
today, certain steps to be taken to help achieve those goals as the parties and we
prepare for our upcoming hearing. For now, we turn in Section C to the task of
applying the governing legal standards just discussed to the matters before us.
C. The Resulting Rulings
The aboveprincipleshelp guideour coursehere. In this portionof ouropinion,
we set forth our decision on each of the pending matters.
Applicant’s Motion for Summary Disposition
AlthoughtheStateconcedesthatsomeofthefactsputforwardbytheApplicant
as undisputed do indeed fit into that category, the State is contesting a great many
others. In doing so, it has broughtforward a number of experts who appear at this
stage to be qualified and competent and who have provided in lengthy affidavits
their views challenging the Applicant’s case in a number of important respects.
In our view,denials of summary disposition for complex issues need not
be burdened or delayed with extended discussion of each subissue presented
by the moving party. Rather, at most all that is needed is the exposition of
sufficient genuine dispute about the facts in material areas to illustrate why,
overall, summary action is unavailable.
23 To show that there remains controversy
requiring a hearing to resolve, we discuss each of the first three bases the State
offered in support of its contention.
24
1. The first basis supplied for the State’s contention challenges the adequacy
of the PFS investigation in identifying capable faults that could produce ‘‘greater
vibratory ground motion than that for which the facility is designed’’ or ‘‘faults
beneath the storage area’’ that may pose a threat of surface rupture, factors that
must be accommodated in facility siting and design.See PFS Undisputed Fact 1.
22See Statement of Policy on Conduct of Licensing Proceedings,CLI-81-8, 13 NRC 452 (1981), and Statement
of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18 (1998), both urging licensing boards to
use all available tools for producing an informed adjudicatory record in a reasonable, disciplined time frame while
providing a fair hearing process.
23To be sure, there might be instances in which the grant of partial summary disposition would be appropriate to
consider, and when doing so a more complete review of all the facts would be in order. But as we noted the other day
herein, ‘‘the Board has considerable latitude in determining the extent to which it will grant what is essentiallypartial
summary disposition.’’ LBP-01-38 (p. 511, above), 54 NRC at 495. In light of our views about the interrelated
nature of the geotechnical issues (see p. 517, below), this is not an instance in which partial resolution now would
further our ability to reach a sound, thorough final decision.
24The fourth basis appears to have been left essentially undefended by the State. We will discuss its status at the
prehearing teleconference we intend to convene in mid-January to plan further the course that will take us to the
hearing.
512
PFS asserts, however, that the various technical reports that it has prepared
alleviate any concerns alleged by the State in Basis 1 of the contention. In
reaching its conclusions, PFS has had several reports (includingversions in 1996,
1998, and February 1999) prepared by its contractor Geomatrix, all of which
allegedlycomprehensivelyanalyzeboththegroundmotionhazardandthesurface
displacement hazard based on previously identified and newly discovered faults.
See PFS Dispositive Motion at 5. PFS also asserts that the reports correspond
to the requirements of Regulatory Guide 1.165 and the Standard Review Plan
for evaluating vibratory ground motion and surface fault displacement.See
PFS Undisputed Fact 5. Overall, PFS stresses that its evaluations utilize a
‘‘multidisciplinary, multiple indicator approach to triangulate and corroborate
results.’’Ibid.
In support of its position, PFS has submitted the expert testimony of Kevin
J. Coppersmith and John C. Clark. Dr. Coppersmith is a former employee of
Geomatrix Consultants, the contractor responsible for production of the studies
evaluating surface faulting at the ISFSI site. Dr. Coppersmith’s particular
experience relates to the ‘‘evaluation of faults to determine their potential for
being seismogenic and for evaluating surface faulting hazards.’’ Coppersmith
Decl. at 1;see also id.Exh. 1, Curriculum Vitae for Kevin J. Coppersmith. For
his part, Mr. Clark is Vice President of another PFS consultant, Bay Geophysical,
which supplemented the Geomatrix reports by its evaluation of faults at the site.
Mr. Clark has expertise in the area of collection and interpretation of seismic
reflection data, and performed the interpretation of the seismic reflection data in
conjunction with Geomatrix for the PFS site.See Clark Decl. at 1-4;see also id.
Exh. 1, John C. Clark Curriculum Vitae.
The State, however, challenges the PFS data by way of its expert witness, M.
Lee Allison. Dr. Allison holds a doctorate in geology, and possesses over 25
years’ experience in geological policy management, research, exploration, and
consulting. He has been designated as the State’s expert for interpreting PFS
seismic reflection data, an area of expertise that he gained from his employment
as an exploration geologist for the oil industry and as a senior geologist at the
University of Utah Research Institute. He is currently the State Geologist for the
State of Kansas, and held that same position for the State of Utah from 1989 to
1999.See Allison Decl. at 1.
The State claims that the PFS seismic analysis is inadequate in that, in ways
identified by Dr. Allison, it ignores or overlooks other faults in the collected
data and fails to use an integrated or comprehensive approach to evaluate the
vibratorygroundmotionandsurfacefaultdisplacement. Thesefailuresin thePFS
investigations, the State asserts, cause the site to be mischaracterized.See State
Response at 5-7; Allison Decl. at 2.
2. In Basis #2, the State raised specific questions as to the sufficiency of
the PFS determination of ground motion for the site, namely the failure to take
513
into account‘‘spatialvariationsin ground motionamplitudeand durationbecause
of near surface traces of potentially capable faults’’ (as contemplated in the
methodology promulgated by Sommerville et al.). PFS says that the issue has
been mooted by the incorporation of its subsequent study evaluating the near
surface effects of potentially capable faults, utilizing the Sommerville approach,
in both the probabilistic and deterministic seismic hazard analysis.See PFS
Dispositive Motion at 9-10.
In support of its motion, PFS has submitted the affidavit of Robert R.
Youngs,a principalengineerwith GeomatrixConsultants, the PFS contractorthat
performed the Sommerville analysis. Dr. Youngs has 25 years of professional
consulting experience in the analysis of seismic hazards, particularly in the
area of characterization of earthquake ground motions as well as in performing
probabilistic and deterministic analyses to develop seismic design criteria for
groundshakingandfault displacement.See YoungsDecl.at 1;id.Exh.1, Youngs
Curriculum Vitae.
The State challenges the PFS mootness assertion by arguing that, contrary
to PFS’s apparent thinking, the contention’s criticism of the faulting analysis is
not limited to the Sommerville methodology.In this vein, the State points out
that PFS has not analyzed conflicting shear wave velocity data for the uppermost
soil layer.See State Response at 12. In support of its assertion that the PFS
seismic wavevelocitydataandanalysisareinadequate,the Statehasprofferedthe
expertise of Walter J. Arabasz, whose career has focused primarily on earthquake
hazard analysis covering Utah and the Intermountain West.
Dr. Arabasz is currently a research professor of geology and geophysics at
the University of Utah, as well as Director of the University’s Seismograph
Stations. In addition, he has since 1977 provided professional consulting services
for earthquake hazard evaluations for ‘‘dams, nuclear facilities, and other critical
structures.’’ He also has had major involvement in the assessment of vibratory
groundmotion hazardsfor the proposedspent fuel repository at Yucca Mountain.
See Arabasz Decl. at 1.
Accordingto Dr. Arabasz, PFS has notconducteda fully deterministic seismic
analysisasrequiredby10C.F.R. §72.102(f)(1)and10C.F.R.Part100,Appendix
A. He argues that the PFS deterministic analysis is invalid because, althoughPFS
has submitted two analyses labeled as deterministic, it has utilized a hybrid
methodology which incorporates probabilistic elements and leaves uncertainties
in the calculations.See State Disputed Facts at 3; Arabasz Dep. at 45-48. A
valid deterministic analysis is essential, he says, because it is a ‘‘benchmark’’ to
which results of a probabilistic seismic hazard analysis can be compared. If the
deterministic analysis was invalid or inadequate to begin with, according to Dr.
Arabasz, it cannot be used to compare the conservatism of the PFS probabilistic
hazard assessment results.See Arabasz Decl. at 2.
514
3. IncludedinthethirdbasisforContentionUtahLisasubparta,‘‘subsurface
investigations,’’ which now embraces the issue of the soil-cement mixture that
PFS proposes to use in Layer 1 of the soil under the storage pad area. PFS claims
that this mixture will provide an adequate safety factor protecting against sliding
of the casks.See PFS Undisputed Facts at 10; SAR at 2.6-61 to 2.6-62. In
support, PFS has proffered the affidavit of Paul Trudeau, a Senior Lead Engineer
at Stone & Webster, with 28 years of experience in geotechnical engineering.
Mr. Trudeau has been designated by Stone & Webster as the Division Computer
Coordinator and as the division specialist in cross-hole seismic velocity surveys.
He hasperformedworkatfossilfuelandnuclearpowerplantsaroundthe country,
where his responsibility was to perform geotechnical investigations, prepare
geotechnical analyses, and develop geotechnical design criteria. Mr. Trudeau’s
areas of concentration on this project are the investigation and analysis of soils
— relating to settlement, load bearing capacity, and stability of foundations— as
well as the performanceof computer-aidedanalysesof soilbehavior.See Trudeau
Decl. at 1-2;id.Exh. 1, Trudeau Curriculum Vitae.
On the other hand, the State argues that the PFS soil-cement analysis is
inadequate because PFS has not provided any calculations or field testing to
demonstrate the safety of the ‘‘untried’’ soil-cement mixture. Its concern is
highlighted by the fact that the entire soil-cement concept was given cursory
treatment, appearing then on only one page of the Safety Analysis Report (which
itdidnotbelieve‘‘adequatetodescribetheanticipatedpropertiesofthematerial,’’
on which further studies were to be performedat a later time).See State Response
at 15. In addition, the State notes its concern that PFS has not considered other
designdeficiencypossibilities inherentin the soil cement,such as its performance
under torsional forces, its permeability, and the impact of shrinkage in the event
the mixture is subject to extreme environmental conditions.See id.at 16.
As support for its position that PFS’s soil-cement concept has not been
establishedtooffertherequisiteresistancetoseismicloads,theStatehasproffered
the affidavit of Steven F. Bartlett. Dr. Bartlett is currently an Assistant Professor
intheCivil andEnvironmentalEngineeringDepartmentat theUniversityofUtah,
where he teaches courses in geotechnical engineering and conducts research. He
had earlier been employed by the Utah Department of Transportation, as well as
several consulting firms, applying his expertise and knowledge in geotechnical
engineering, earthquake engineering, geoenvironmental engineering, applied
statistics, and project management.See Bartlett Decl. at 1. Dr. Bartlett provides
considerable detail in support of the assertion that the PFS evaluation cannot
withstand scrutiny because inadequate evaluation has been done regarding a
515
number of factors affecting the performance of soil cement, which could affect
stability of casks at the ISFSI.Id.at 3-7.
25
As can be seen from each of the above examples, the State’s experts have
presented a serious, documented, response to the Applicant’s claims, sufficiently
plausible to create doubt about the outcome. The State’s presentation may or
may not prevail at the hearing — but that is not the test now. Notwithstanding
the Applicant’s best efforts to present its evidence in a favorable light, the State
has — under the applicable summary disposition principles regarding competing
experts and opinions (see pp. 509-10, above) as well as the requirement that
all reasonable inferences must be drawn in the State’s favor (see LBP-99-35,
50 NRC 180, 194 (1999)) — surely succeeded in establishing that there is a
sufficient genuine dispute as to material facts (and opinions) such that a hearing
must be held. Accordingly,the Applicant’s motion for summary disposition must
be denied.
26
Applicant’s Motion To Strike
As we reviewed the material that led us to that decision, it became clear that
we should reject the Applicant’s invitation, by way of its motion to strike, to go
line-by-line through the State’s arguments and supporting affidavits to see what
portions of its presentation fit neatly within the corners of the originally stated
bases. As would be expected of an issue as complex as geotechnical, matters not
clearly articulated in an original basis statement might nonetheless emerge as the
25Similar expert disputes exist with respect to the othersubparts of Basis #3. As both the examples below make
clear, the experts on the two sides are in disagreement:
With regard to subpart b, ‘‘sampling and analysis,’’ the State asserts that the soil sampling remains insufficient.
Based on the declaration of Dr. Bartlett, the State argues that PFS has not performed adequate testing to ascertain
soil conditions as described in Regulatory Guide 1.132. For example, the State claims that PFS has not sampled the
soil with the correct density of spacing, nor did it use continuous soil sampling.See State Response at 18-19. For
its part, PFS asserts, by way of the affidavit of Paul Trudeau, that since the initial filing of the SAR, the number of
tests it has performed has dramatically increased (e.g.,the number of undisturbed samples increased from 9 to 33,
and the number of triaxial shear strength tests has gone from 2 to 17).See PFS Dispositive Motion at 15-16.
Withregard tosubpartc,‘‘physical property testing,’’ theStateassertsthat PFS hasnotexplainedhowitsdatawere
used in the design basis, nor has it ‘‘adequately or accurately’’ assessed ground motion from potential earthquakes.
See State Response at 23. In support, the State proffers the affidavit of Dr. Farhang Ostadan, a civil engineer and
consultant in soil dynamics and geotechnical earthquake engineering.See Ostadan Decl. at 1. As the State sees it,
the major concern with regard to the PFS analysis is that PFS has segmented its investigations and failed to integrate
its analysis adequately.See id.at 2. PFS provides its own detailed technical analysis, largely intended to establish
that work performed later overcame the perceived deficiencies. PFS Dispositive Motion at 26-29.26In reaching this conclusion, we note that, although the Applicant believes its experts are better qualified than the
State’s,andthattheiropinions arebettergrounded, theApplicantdoesnot appeartobearguingthatthebackground of
the State’s affiants is inadequate to qualify them as experts, or that their opinions rely on methodology so unscientific
that they would fail the Daubert gatekeeping test (see note 19, above). The relative weight to be accorded the
opinions of the competing experts will, then, be determined at the hearing, as we appraise their qualifications more
fully and examine the merits of the views presented there and the force of their underpinnings.
516
proceeding moves along — and all parties,with full notice to each other, refine
their approaches (see p. 508, above, and note 30, below) — and become quite
relevant to a full comprehension of that basis, and of the underlying contention.
Looked at another way, the State’s presentation, like that of the Applicant,
attempts to present the whole of a coherent argument, and striking words and
lines would eliminate not just those parts, but much of the comprehension of the
whole. Along this line, our review of the hundreds of pages of expert affidavits
and related documents in front of us demonstrates how inextricably intertwined
are the issues, and subissues, involving geological conditions and facility design
— what is learned and developed about one subject influences how another is
viewed. To attempt to separate them artificially at this stage, in a matter this
complex, would create too great a risk that the upcoming hearing would not look
completely at the issues.
Thisisnottosaythatmotionstostrike, orsimilarrequests,havenoplaceinour
proceedings. There will be times when it will be clear that matter is extraneous
to the thrust of the contention and should be stricken (or rejected at the outset).
27
What must be recognized here, however, is that the interdependence of so many
of the facts and opinions cautions against artificially trying to separate them,
then finding at the hearing that stricken matter would have been most helpful to
reachinga decision on the merits. Accordingly,we denythe PFS motion to strike.
State’s Motion To Admit Late-Filed Contention
As noted earlier (p. 504, above), the State put forward a new contention,
labeled Utah QQ and entitled ‘‘Seismic Stability,’’ based on revised calculations
submitted by PFS. The contention itself provides:
PFS’s site specific investigations, laboratory analyses, characterization of seismic loading, and
design calculations, including redesign of soil cement, [fn.] fail to demonstrate that a) the
newly revised probabilistic seismic hazard design basis ground motions have been correctly
and consistently applied to the Canister Transfer Building (‘‘CTB’’), storage pads, and their
foundations; b) PFS’s general design approach, including the redesign of soil cement, for the
CTB, storage pads, or storage casks can safely withstand the effects of earthquakes; and c) the
foundation design of the CTB, storage pads, and the underlying soils, or the stability of the
storage casks, are adequate to safely withstand the newly revised probabilistic seismic hazard
design basis ground motions. 10 CFR §§72.102(c), (d); 72.122(b).
[fn.] PFS uses the term ‘‘soil cement’’ but the more correct term is ‘‘cement-treated soil.’’See Mitchell
Dec. ¶12. The use of the term ‘‘soil cement’’ in this filing does not imply the State accepts that PFS will, in
fact, use soil cement.
27See, for example,the situation described in Public Service Co. of New Hampshire (Seabrook Station, Units 1
and 2), ALAB-899, 28 NRC 93 (1988).
517
That contention is, of course, ‘‘late’’ in the sense that it was not filed within
30 days of the 1997 notice that triggered the initial opportunity to participate.
The State urges, however, that ‘‘good cause’’ for its belated presentation arises
from the Applicant’s having revised its calculations about the level of ground
motion that needed to be designed against, which led to its amending, for the
twenty-secondtime, its licenseapplication. Theamendedapplication,we aretold,
now includes a ‘‘new proposal to use soil cement around’’ the Canister Transfer
Building(CTB) andrevising‘‘theuse ofsoilcementunderandaroundthestorage
pads.’’ State Request at 15.
The State profferedwhat appearedto be an impressive package when it sought
admission of Contention Utah QQ. The 20-page request includes the contention
set out above, followed by a ‘‘Basis’’ presentation that appears to run a dozen
pages.28
The basis begins with a review of the Applicant’s actions and position, then
turns to a description of four State concerns alleging that ‘‘the revised design
is unsupportable and creates significant safety concerns.’’ State Request at 8.
Those four concerns cover the following areas: (1) application of the new design
basis ground motion to the CTB and its foundation system; (2) application of the
new design basis ground motion to the storage casks and the storage pads; (3)
survivability and durability of cement-treated soil for the redesigned CTB and
storage pad foundation systems;
29 and (4) overestimation of the sliding resistance
provided by the clayey-silt and silty-clay underlying the CTB and storage pads.
In each of these areas, the State presents its concern, providesreferencesto the
Applicant’s position, and cites one of three multipage ‘‘declarations’’ submitted
byitsexperts,whosecredentialsappearimpressive. Inadditiontoattachingcopies
of those declarations, the State providesand relies uponcopiesof the twelve-page
‘‘summary’’ of the changes reflected in the Applicant’s license amendment #22,
as well as the NRC Staff’s two-page letter response informing the Applicant of
the missing information which would be needed to permit the Staff to complete
its review of the amendment.
We would have thought that, upon reading the Contention Utah QQ package,
both lay and professional observers would have quickly formed the conclusion
thatitpresentsessentiallywhattheCommissionhadinmindincreatingits current
strict contentions pleading rule. The Staff agreed,accepting the contention as
well pled (but challenging it on untimeliness grounds).
28It appears that the statement of basis runs from the middle of page 3 through the middle of page 15, but
regardless of how the documentation is labeled, its content is comprehensive.
29The third concern goes on to include five subtopics: (a) overstressing and cracking due to dynamic bending,
torsional, and beam shear stress; (b) delamination or debonding along a cement-treated soil lift interface; (c)
shrinkage cracking due to drying and curing; (d) cracking due to vehicle loads; and (e) long-term performance of
cement-treated soil over a 40-year period.
518
Thisconclusionwas notsharedby the Applicant, whicharguesthatportionsof
the contention are insufficient to show that a genuine dispute exists on a material
issue of law or fact, or fail to meet the Commission’s requirementsfor specificity
and materiality, or are too speculative in nature. But we are not at all persuaded,
at this pleading stage, by the Applicant’s arguments in this regard. Indeed, to
the extent those arguments rely upon the Applicant’s experts’ opinions, they
are essentially another effort (compare pp. 508, 516, above) to induce us to rule
prematurelyonthemeritsoftheissues. Onthatscore,ourcolleaguesputitwellthe
other day in Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel
Fabrication Facility), LBP-01-35, 54 NRC 403, 432 (2001): ‘‘The determination
ofwhethera contentionis admissible,however,is notconcernedwiththe ultimate
outcome of the merits dispute . . . . Rather, the determination at the contention
admissibility stage is concernedonlywith whether a real, meaningfulcontroversy
is presented and adequately supported.’’
In the final analysis, we do not think this even a close case. To the contrary,
Contention Utah QQ could serve as a model for how an intervenor might go
about complying with all the requirements of the contentions pleading rule. It
meets the terms of the rule itself (see p. 505, above) and serves the purposes
the Commission had for adopting that rule (see pp. 505-06, above). Rather than
finding the contentiondeficient, then, we find it to be exemplary. In this instance,
a well-pled contention was forthcoming; as we see it, the Commission’s rigorous
contention pleading rule (as enforced from the beginning by this Board) thus
served its purpose — and no purpose is served by refusing to recognize it.
This leaves the timeliness issue, which boils down to a claim by the Staff
and Applicant that — whatever might be learned from the Applicant’s newer
investigations and changing analyses — the points the State is now presenting
couldhavebeenuncoveredandpresented,albeitinadifferentcontext,longagoin
connection with prior investigations and initial analyses. Indeed, it is pointed out,
the State’s efforts to raise these claims were rejected by this Board as untimely at
a much earlier stage of this proceeding (see note 12, above).
This untimeliness argument, unlike the challenge to the way the contention
was pleaded, does have something to commend it. But not enough. As we see it,
the Applicant’s two new investigations, conducted by two new contractors and
providing two new and different analyses of ground motion and at least two new
approaches to anti-seismic design and construction, have yielded something in
addition — an entirely new face on the earlier documentationwhich the State had
519
before it, and an entirely new light by which we view this contention, compared
to those presented earlier.
30
In that new light,
31 we need not further delay the inclusion of this contention
into the proceeding by analyzing in painstaking detail each aspect of what was
available before, and comparing it to what is available now. It is now abundantly
clear that we cannot do justice to what underlies Contention Utah L — or to what
underliesthe contemplatedfacility — if we reject the newly profferedContention
Utah QQ. Specifically, there is enormous interaction and interdependence — in
both the physical and the litigation worlds — among the various concerns each
embraces.
Accordingly, applying the standard test for late-filed contentions (see p. 507,
above)inthenewcircumstancespresented,theparamount‘‘goodcause’’criterion
hasbeen met by the State’s timely responseto the Applicant’slicense amendment
which triggered the ‘‘new look’’ at the seismic-related design parameters. As to
the other four factors, taken together they also weigh in the State’s favor.
Specifically, as to the less significant factors two and four (see p. 507, above)
there is no other means for the State to protect its interests (other than the usual
Staff review, which in this context is not considered as an alternative to the
hearing process) and no other party presenting similar arguments. In contrast,
there is every indication, from the specific thoroughness with which the State
presented Contention Utah QQ and its underlying basis, that it ‘‘may reasonably
be expected to assist in developing a sound record’’ on this contention within the
meaning of the more important factor three, which weighs heavily here in that
the record to be created is needed for our overall decision-making process (see p.
520, above).
Finally, as to factor five, while the inclusion of this contention will to a degree
‘‘broaden the issues,’’ we do not see it as having a significant impact relative to
delay of this proceeding. In reaching this conclusion, we are of course heavily
influencedby the fact that we have now determinedthat there will be a hearingon
30We of course do not intend, by citing the Applicant’s conduct of additional investigations and its filing of
numerous license application amendments, any criticism of those actions. Indeed, PFS should be given credit for
seemingly doing its utmost to analyze and support all aspects of its project on a continuing basis. At the same time,
those opposing the project must in fairness be afforded some modicum of similar leeway to adjust their approaches
as their knowledge basis, too, increases over time.
In this respect, our proceedings are very unlike typical litigation, which ordinarily focuses on assessing
responsibility for an event or series of events that occurred in the past. In contrast to that type of fixed focus,
our proceedings involve challenges to a moving target — an application that is frequently upgraded to reflect new
developments or to respond to new questions. The flexibility to be accorded the parties here must often, then, be
greater than that which might be afforded in other types of litigation.
31In these changed circumstances, our decision neither (1) undercuts the validity under the then-existing
circumstances of the action Chief Judge Bollwerk’s Board earlier took on a similar contention nor (2) violates the
‘‘law of the case’’ doctrine.
520
other geotechnical issues.
32 Were this the first we had heard of any geotechnical
issue, allowing Contention Utah QQ to be heard would dramatically broaden the
issues and have the potential for delay so as to make this factor weigh heavily
against the State. But in our situation, we anticipate that discovery on this matter
will not delay the start of the April 2002 hearings (see p. 522, below) and we
would expect the extra hearing time needed to be relatively small. In any event,
a weighing of the requisite late-filing factors swings the balance well in favor of
admitting Contention Utah QQ.
Other Matters
Our rulings above leave us several other matters to speak to:
1.Amendment of Bases.Having admitted Contention Utah QQ, we need
devote little attention to the State’s motions to amend the bases that accompanied
that contention when it was first presented. For reasons of completeness similar
to those we spelled out earlier, we grant the motions.
2.Restatement of Geotechnical Issue.In light of (1) our rulings today, (2)
the time that has elapsed and the events that have taken place since Contention
Utah L was first filed, and (3) the complexityof the issues, we think it timely now
that a unified geotechnical contention be prepared. By that we mean a statement
that combines, in a single document, the thrust of Contentions Utah L (Part A)
and Utah QQ in a manner that will help all to prepare in more orderly fashion for
the upcominghearing. Given the stage ofthe proceedings,that statement neednot
track the contention pleading rule precisely but should draw upon key elements
of that rule as appropriate for current purposes. To that end, and recognizing the
parties’ proven ability to collaborate on similar matters, we direct the Applicant
and the State to prepare jointly by January 17, 2002, a statement, of the nature
described above,that will serve to frame the upcominghearing. To the extentthat
their best efforts are not completely successful and reach an impasse, we stand
ready to resolve any remaining issues about the statement’s content.
3.Motion To Strike.In keeping with the limited role of motions to strike
(see pp. 516-17, above), we deny the State’s motion to strike Exhibit 1 of the
Applicant’s September 11 brief. As we viewed that exhibit, we think it did serve
32We note that on a different question — whether early Commission review of an issue was appropriate —
the Commission earlier this month reminded litigants that ‘‘increased litigation burden’’ from adding a contention
does not constitute ‘‘immediate and serious irreparable impact’’ within the meaning of 10 C.F.R. §2.786(g), the
interlocutory review rule, particularly when there are ‘‘already admitted severalother contentions on which a hearing
is anticipated.’’Connecticut Yankee Atomic Power Co.(Haddam Neck Plant), CLI-01-25, 54 NRC 368, 373-74
(2001). To be sure, the procedural issue the Commission faced inHaddam Neckwas quite different from the one we
face here. But our reliance here on the pendency of related substantive issues (when considering whether a hearing
will be unduly broadened) finds a measure of additional support in the Commission’s recognition that such pendency
can be an important factor in analyzing an analogous issue (whether a party will be unduly burdened).
521
a purpose different from the brief itself (to which the page limitations apply) and
we chose to evaluate it for what it is worth rather than disregard it.
4.Future Discovery.With Contention Utah QQ now admitted, the parties
are entitled to begin discovery, which may be less extensive a process than
usual because that contention emerged during the course of discovery on related
matters. As the parties know, it has long been planned that the discovery process
would about now be launched on other issues, triggered by the Staff’s scheduled
issuance at this time of two documents: (1) a Supplemental Safety Evaluation
ReportonContentionUtahL,and(2)theFinalEnvironmentalImpactStatement.33
Although some adjustments may be necessary, the discovery schedule for those
issues can also serve generally to guide discovery on Contention Utah QQ. In
that regard, we ask the parties to confer in an effort to reach agreement on a
specific discovery schedule for Contention Utah QQ in time to present it to us in
the contemplated mid-Januaryteleconference(see note 24, above) for ratification
(following resolution of any disagreements that may then exist).
With respect to the substance of the discovery process, we urge the parties
to conserve their resources — which will be subject to many demands in the
time before the hearing — by working in concert to resolve any disputes that
mightarise withoutcallingfor Boardintervention.Given thefact-drivennatureof
manydiscoverydisputesandthe nearnessof thehearingdate, anydisputesthatdo
requireourattentionwilllikelybesettlednotbywrittenopinionbutbyconference
call that seeks commonsense solutions along the lines of the Board’s November
21 decision on the Contention Utah L, Part B discovery dispute (see note 6,
above). Again, the parties are welcome to fashion such solutions themselves,
without our assistance.
D. The Upcoming Hearing
As noted at the outset, the hearing is scheduled to begin in April of next year
in Salt Lake City.
34 Given the complexity of the geotechnical issues (as well as
33Under thegeneral scheduleguiding this proceeding,thosedocuments wereanticipatedto beissuedonDecember
21, 2001. We and the parties have recently been advised by the NRC Staff that, owing to the need to ‘‘redact certain
information in light of recent security concerns,’’ that schedule must be altered slightly (Letter from Robert M.
Weisman, December 18, 2001). Thus, while an unredacted version of the supplemental SER was still made available
to the concerned parties on December 21, the unredacted version of the FEIS will not be ready until December 31
(the redacted versions of each, we are told, will be published around January 11, 2002).
34Some might wonder why this portion of the hearing is being held over 4 years after the notice of opportunity
for hearing was issued. But that notice was issued early in the process during which the NRC Staff was to review
the first-of-a-kind, and controversial, license application proffered by PFS, which has been amended at least 23
times, all or nearly all since the notice of hearing was issued and most recently on November 21, 2001. As a
result, the extensive prehearing winnowing and discovery processes before this Board have taken place essentially
concurrently with PFS’s revisions of the application and the NRC Staff’s analysis of those revisions. For example,
(Continued)
522
of the ‘‘credible accidents’’ issue, with or without a ‘‘terrorism’’ component as
explainedin note 10, above), it is imperative thatwe and the parties make the best
possible use of the interveningtime to preparefor thathearing. Inparticular, if we
are to hear and resolve the issues in an expeditious and fair manner, we will need
more than the usual assistance of the parties. To that end, and as already noted (p.
512, above), we are today issuing a companion (unpublished) order establishing
a set of measures and deadlines that will begin that process.
In concluding this opinion, we note that utilization of the strict contentions
pleading rules embodied in NRC regulations, coupled with application of the
summary disposition rules utilized in litigation generally, has generated an
estimable result here. That is, we are headed to a hearing that will, fittingly,
deal primarily with two threats of possible damage to the proposed facility that
are of especial concern to the citizens of Utah and to the public at large: (1)
the risk from airborne impacts that could arise in connection with existing U.S.
military activities in the vicinity; and (2) the risk from seismic events. Chief
Judge Bollwerk’s extended, laborious efforts to get us to this advantageous point
deserve mention and recognition.
This brings us back to where we started (see Section B.1, pp. 505-08 above).
The Commission’s contentions pleading rules ensure that only serious litigants,
presenting serious concerns and able to marshal serious litigation support for
them, will be able to proceed. Contentions that fairly overcome those preliminary
hurdles, and which turn on facts and opinions aboutwhich there is ample dispute,
deserve our full examination. With our denial of summary disposition and
our other rulings herein, that type of examination will be given to the State’s
geotechnical contentions in the upcoming hearing.
Those of us charged with making crucial decisions in areas such as the
scientifically complex geotechnical realm look forward to that hearing as an
occasion not only to allow the parties to test each other’s claims — in a manner
that, as we have seen, cannot be done on summary disposition — but also,
building on the parties’ questioning of each other, for the Board members to
challenge the parties to justify their positions. In doing so, it provides us vital
opportunities — beyond what can be gleaned from parsing dense documents —
to plumb the depths of an expert’s thinking, to test the reasons underlying an
expert’s own views and that expert’s rejection of competing theories, to compare
and contrast the views of different experts, and to gain greater familiarity with,
and understanding of, the intricate theses that we are called upon to evaluate in
the course of rendering a decision that can have profound ramifications.
on November 13 the Staff issued its Supplemental Safety Evaluation Report on aircraft crash hazards (see note 10,
above), just released a similar document on geotechnical issues on December 21, and now anticipates producing
its Final Environmental Impact Statement at the end of December (see note 33, above). All those documents are
prerequisites to any final hearing taking place. As may be seen, then, the hearing processes themselves have not
been the cause of any untoward delay.
523
The parties may now begin to prepare for that hearing.
35 For our part, we will
be working to resolve the related matter to which we have referred, namely, the
summary disposition motion regarding Part B of the seismic contention, which
has just become ripe for decision (see note 6, above).
36
For the foregoing reasons, it is, this 26th day of December 2001, ORDERED
that:
1. The Applicant’s February 9 motion to strike is DENIED;
2. The Applicant’s motion for summary disposition of Part A of Contention
Utah L is DENIED;
3. The State’s motionto admit late-filedContentionUtah QQ is GRANTED;
4. The State’s motions to modify the bases of Contention Utah QQ are
GRANTED;
5. The State’s September 12 motion to strike is DENIED;
6. The discovery design set out on page 522 is ADOPTED; and
35As noted above (note 10), another matter needing extensive development at the hearing is Utah’s Contention K
on potential accidents.Issues that should take less time to develop at that hearing involve (1) the possible impact
of the facility on the peregrine falcon,all that remains from Contention Utah W (see LBP-01-30, 54 NRC 231
(2001)); and (2) the thoroughness of the consideration given to rail-line alternatives,as raised by the Southern
Utah Wilderness Association in Contention SUWA B (see LBP-01-34, 54 NRC 293 (2001),reconsideration denied,
LBP-01-38, 54 NRC 490 (2001)).
The hearing will not be considering one issue of possibly major import — the adequacy of PFS’s security plan,
raised by State Contention Security-J — because a relevant State law is undergoing constitutional challenge brought
by the Skull Valley Band and the Applicant in Utah’s federal district court (Skull Valley Band of Goshute Indians
v. Leavitt,Case No. 2:01CV00270C (D. Utah, filed April 19,2001)). Last summer, we naturally deferred our
consideration of the issue pending the outcome of that proceeding. LBP-01-20, 53 NRC 565 (2001). (We have since
been receiving regular status reports from the parties on the course of that litigation, in which the State is seeking
summary judgment and the Court is awaiting an early January decision by the United States on filing an amicus
curiae brief on behalf of the NRC. The next status report is due to us on December 28.)
36Summary disposition motions on three other matters remain to be decided. Two of the matters involve State
contentions: Utah O, ‘‘hydrology,’’andUtahW,‘‘other impacts.’’ The third matter involves a contention filed
by Ohngo Gaudedah Devia (a group comprised in part of members of the Skull Valley Band of Goshute Indians),
namely Contention OGD O, which raisesenvironmental justiceconsiderations.
524
7. The parties are DIRECTED to undertakepreparationof the ‘‘geotechnical
contentions unification’’ document.
THE ATOMIC SAFETY AND
LICENSING BOARD
Michael C. Farrar, Chairman
ADMINISTRATIVE JUDGE
Jerry R. Kline
ADMINISTRATIVE JUDGE
Peter S. Lam
ADMINISTRATIVE JUDGE
Rockville, Maryland
December 26, 2001
Copies of this Memorandum and Order were sent this date by Internet e-mail
transmission to counsel for (1) Applicant PFS; (2) Intervenors Skull Valley Band
of Goshute Indians, OGD, Confederated Tribes of the Goshute Reservation,
SouthernUtah Wilderness Alliance, and the State of Utah; and (3) the NRC Staff.
525
Cite as 54 NRC 526 (2001)LBP-01-40
UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD
Before Administrative Judges:
Michael C. Farrar,Chairman
Dr. Jerry R. Kline
Dr. Peter S. Lam
In the Matter of Docket No. 72-22-ISFSI
(ASLBP No. 97-732-02-ISFSI)
PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage
Installation) December 28, 2001
In this proceeding concerning the application of Private Fuel Storage, L.L.C.
(PFS), under 10 C.F.R. Part 72 to construct and operate an independentspent fuel
storage installation (ISFSI), the Licensing Board, acting pursuant to 10 C.F.R.
§2.749, grants in part and denies in part a PFS request for summary disposition
regarding Contention Utah O Hydrology. The Board finds that there does not
exist a dispute of material fact regardingradiological contaminationat the facility
and the potential impact of the facility’s water usage on other well users and the
aquifer and grants summary disposition with regard to these matters. With regard
to facility nonradiological contamination,the Board finds that there does exist a
material factual dispute and denies summary disposition regarding this matter.
RULES OF PRACTICE: SUMMARY DISPOSITION (GENUINE
DISPUTED MATERIAL ISSUE OF FACT)
In the face of a moving party’s well-pled undisputed material facts, the
respondentmaynotrelyuponsuspiciousorbaldassertions,evenifsuchassertions
526
are in the form of expert opinion, to establish the existence of a material factual
dispute.
RULES OF PRACTICE: SUMMARY DISPOSITION (GENUINE
DISPUTED MATERIAL ISSUE OF FACT)
When moving for summary disposition, a party may not rely upon generalized
responses to demonstrate there no longer exists a dispute of material fact when
confronted with specific concerns raised by the other side.
MEMORANDUM AND ORDER
(Granting in Part and Denying in Part Summary Disposition
Regarding Contention Utah O, Hydrology)
Pursuant to 10 C.F.R. §2.749, Applicant Private Fuel Storage, L.L.C. (PFS),
hasrequestedthatsummarydispositionbeenteredinitsfavorregardingIntervenor
State of Utah’s Contention Utah O, Hydrology. By that contention, the State
asserts that PFS, in its application under 10 C.F.R. Part 72 for an NRC license
for its proposed Skull Valley, Utah independent spent fuel storage installation
(ISFSI), has failed adequately to assess the effects on the hydrological resources
of the surrounding area from the construction, operation, and decommissioning
of the ISFSI.
The NRC Staff supports the PFS summary disposition request, while the State
opposes it. For the reasons and to the extent set forth below, the Board grants in
part and denies in part the PFS request for summary disposition on Contention
Utah O.
I. BACKGROUND
In June 1997, PFS filed a license application for its proposed ISFSI, which
included a safety analysis report (SAR) and an environmental report (ER)
addressing, respectively, the safety aspects of the proposed facility and its
projected environmental impacts. In response, the State and a number of other
petitioners, including farming/ranching/land investment companies Castle Rock
Land and Livestock, L.C., Skull Valley Co., Ltd., and Ensign Ranches of Utah,
L.C. (collectively Castle Rock), filed a number of contentions opposing the PFS
application. In particular, three contentions — Utah O, Castle Rock 8, and
Castle Rock 10 — dealing with the potential effects of the ISFSI on surrounding
hydrological resources were admitted and combined by the Board in LBP-98-7,
527
47NRC142,192-93,216,217,reconsiderationgrantedinpartanddeniedinpart
on other grounds,LBP-98-10, 47 NRC 288,aff’d on other grounds,CLI-98-13,
48 NRC 26 (1998). As admitted and subsequently revised, Contention Utah O
now reads as follows:
The Applicant has failed to adequately assess the health, safety, and environmental effects
from the construction, operation, and decommissioning of the ISFSI as required by 10
C.F.R. §§72.24(d), 72.100(b), and 72.108, with respect to the following contaminant sources,
pathways, and impacts:
1. Contaminant pathways from the [A]pplicant’s sewer/wastewater system; routine
facility operations; and construction activities.
2. Contaminant pathways from the [A]pplicant’s retention pond in that:
a. The ER fails to discuss potential for overflow and therefore fails to comply with
10 C.F.R. Part 51.
b. ER is deficient because it contains no information concerning effluent
characteristics and environmental impacts associated with seepage from the
pond in violation of 10 C.F.R. §51.45(b) and §72.126(c) & (d).
3. Potential for groundwater and surface water contamination.
4. The effects of [A]pplicant’s water usage on other well users and on the aquifer.
5. Impact of potential groundwater contamination on downgradient hydrological
resources.
LBP-99-39, 50 NRC 232, 236, 240 (1999) (dismissing portion of contention
related to the Rowley Junction intermodal transfer point) (revising LBP-99-6, 49
NRC 114, 121 (1999) (upon withdrawal of Castle Rock, dismissing portion of
contention related to firefighting) (revising LBP-98-7, 47 NRC at 254)).
In June 2000, the Staff published its draft environmental impact statement
(DEIS) regarding the proposed PFS ISFSI.See Draft Environmental Impact
Statement for the Construction and Operation of an [ISFSI] on the Reservation of
the Skull Valley Band of Goshute Indians and the Related TransportationFacility
in Tooele County, Utah, NUREG-1714 (June 2000) [hereinafter DEIS]. As
relevant to this motion, the DEIS contains discussions assessing the hydrological
resources in and around the proposed site.See DEIS at 3-6 to -14, 4-4 to -13, 6-4
to -6, 6-33, 6-39.
RelyingprincipallyontheevaluationintheDEIS,PFS filedtheinstantmotion,
supported by a statement of material facts not in dispute, claiming that there no
longer exists a genuine issue of material fact regarding Contention Utah O.See
[PFS] Motion for Summary Disposition of Utah Contention O — Hydrology
(June 29, 2001) [hereinafter PFS Motion];id.,Statement of Material Facts on
Which No Genuine Dispute Exists [hereinafter PFS Undisputed Material Facts].
In addressing the first three parts and the fifth part of the State’s contention,
528
PFS asserts that the State’s concerns over radiological and nonradiological
contamination of hydrological resources are based upon subjective belief and
unsupportedspeculation;insupport,itprovidestheaffidavitsofStone&Webster,
Inc. (S&W), Senior Principal EnvironmentalEngineer Dr. H.C. ‘‘George’’Liang
and S&W Lead PFS Project Mechanical Engineer Donald Lewis to demonstrate
thatproposedoperationalproceduresatthe PFSfacilitywilleliminatethepotential
for groundwater and surface water contamination.See PFS Motion at 5-14;id.
Exh.A at13-26(DeclarationofH.C. ‘‘George’’LiangandDonaldWayneLewis)
[hereinafter Liang/Lewis Declaration].
Inaddition,relyingonits experts’opinionandtheDEIS, PFScontendsthatthe
potentialimpactof anycontaminantsonthe surroundinggroundwaterandsurface
water will be insignificant given the arid climate, the lack of surface water, the
depth of groundwater, and the soil characteristics between the surface and the
groundwater, all of which it is said effectively prohibit water at the PFS site from
reaching groundwater or surface water.See PFS Motion at 7-8, 15; Liang/Lewis
Declaration at 8-10, 25, 28-29. Further, with respect to paragraph four of the
contention, PFS asserts — based on its groundwater use estimates and a prior
State study of Skull Valley aquifer use — that its groundwater withdrawal for
facility construction and operation would not adversely impact other users or the
aquifer.See PFS Motion at 14, Liang/Lewis Declaration at 26-28.
OnJuly19,2001,theStafffiledaresponsesupportingthePFSmotionand,with
asserted ‘‘minor modifications,’’ the PFS statement of undisputed material facts.
See NRC Staff’s Response to [PFS]’s Motion for Summary Disposition of Utah
Contention O — Hydrology (July 19, 2001) at 12 [hereinafter Staff Response].
In its response, which was supported by the affidavit of Bechtel-Jacobs Corp.
Subsurface Contaminant Specialist Richard H. Ketelle, the Staff contends that
because the State’s ‘‘broad allegations’’have been adequately addressed in the
DEIS, there no longer exists a genuine issue of material fact with respect to
Contention Utah O.Id.at 7-8;see also id.unnumbered exhibit at 2-5 (Affidavit
of Richard H. Ketelle Concerning Utah Contention O — Hydrology) [hereinafter
Ketelle Affidavit].
Also on July 19, 2001, the State filed its response opposing the PFS request
for summary disposition, along with a statement of disputed material facts and
the supporting affidavit of State Department of Environmental Quality Division
of Water Quality Director DonaldA. Ostler.See [State] Response and Opposition
to PFS’s Motion for Summary Disposition of Contention Utah O — Hydrology
(July 19, 2001) [hereinafter State Response];id.[State] Statement of Disputed
and Relevant Material Facts (July 19, 2001) [hereinafter State Disputed Material
Facts];id.Exh. 1 (Declaration of Don A. Ostler, P.E., in Support of Utah’s
Response to Summary Disposition of Contention Utah O) [hereinafter Ostler
Declaration]. Initsresponse,theStateassertsthatthePFSexperts,albeitqualified
civil engineers, are not sufficiently qualified in hydrology to assess the facility’s
529
environmental impacts on surface and groundwater.See State Response at 5-6.
In addition, the State contends there remain in dispute numerous material facts
about the data used and assumptionsmade by PFS and Staff experts in evaluating
the possible impacts of the proposed facility upon hydrological resources in the
surrounding area.See id.at 10-14.
The State later filed a reply to the Staff’s July 19, 2001 response to the
PFS dispositive motion.See [State] Reply to NRC Staff’s Response to [PFS]
Motion for Summary Disposition of Utah Contention O — Hydrology (July 30,
2001) [hereinafter State Reply]. In this reply, the State asserts that the Staff
failed to describe and apply the appropriate legal tests for such a proceeding. In
addition, the State contends that the Staff failed to address the key factual issues
surrounding Contention Utah O, relying instead on ‘‘a description of the history
of Utah O followed by a boiler plate description of the law surroundingsummary
disposition.’’Id.at 2 n.2. In particular, the State challenges the Staff’s asserted
failure to address the absence of site soil permeability and aquifer data, declares
that the Staff’s modifications to the PFS undisputed material factual statement
have raised material factual disputes, and urges that the expertise of the Staff’s
supportingwitnessdoesnotextendtoalltheareasinwhichheexpressedopinions.
See id.at 3-10.
II. ANALYSIS
A. Standard for Summary Disposition Review
The standard governing motions for summary disposition is well established
and has been used repeatedly by the Licensing Board in ruling on previous PFS
dispositive motions:
Under 10 C.F.R. §2.749(a), (d), summary disposition may be entered with respect to
any matter (or all of the matters) in a proceeding if the motion, along with any appropriate
supporting material, shows that there is ‘‘no genuine issue as to any material fact and that
the moving party is entitled to a decision as a matter of law.’’ The movant bears the initial
burden of making the requisite showing that there is no genuine issue as to any material
fact, which it attempts to do by means of a required statement of material facts not at issue
and any supporting materials (including affidavits, discovery responses, and documents) that
accompany its dispositive motion. An opposing party must counter each adequately supported
fact with its own statement of material facts in dispute and supporting materials, or the
movant’s facts will be deemed admitted.See Advanced Medical Systems, Inc.(One Factory
Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102-03 (1993).
LBP-99-23, 49 NRC 485, 491 (1999).
530
The Board recently discussed the corollary tenets that, among other things,
instruct us at the summary disposition stage not to try to decide ‘‘which experts
are more correct.’’Id.,LBP-01-39, 54 NRC 497, 509-10 (2001). With all these
principles in mind, the Board addresses the PFS summary disposition motion
regarding Contention Utah O.
B. Parties’ Positions on Contention Utah O
1. PFS Position
In support of its motion for summary disposition, PFS submits sixty-six
purported undisputed material facts to demonstrate there exists no genuine issue
of material fact concerning Contention Utah O, thereby entitling it to a decision
as a matter of law.See PFS Undisputed Material Facts at 1-13. As outlined
in that statement, the thrust of the PFS position is that its proposed operating
procedureswillensurenoradiologicalornonradiologicalcontaminationofsurface
or groundwater will occur and that the State’s views to the contrary are based
upon unsupported opinion and speculation. In that regard, PFS contends,
the State has failed to support its ‘‘broad claims’’ regarding the impact of
radiological contamination upon the surface water and groundwater relating to
the proposedfacility, includingcontaminationassociated with routineoperations,
the sewer/wastewater system, and the detention pond as asserted in the first three
paragraphs of the contention and the surface- and groundwater claims of the fifth
paragraph. PFS Motion at 5;see also PFS Undisputed Material Facts at 4-5, 7-8,
9-12.
AccordingtoPFS, theState’ssupportingexpert’sopinionabouttheoccurrence
of radiological contaminants is based upon ‘‘subjective belief and unsupported
speculation’’thatisinsufficienttoforestallfavorableactiononthePFSdispositive
motion. PFS Motion at 5. PFS also states that — because the proposed site
is ‘‘an arid location, with no perennial or intermittent surface waters’’ and is
located where the groundwater is relatively deep and the intervening soil has low
permeability— contaminantswould not reach surface or groundwatereven if site
contamination occurred.Id.at 7;see also PFS Undisputed Material Facts at 2, 3.
AsPFS sees it, its proposed‘‘StartClean — Stay Clean’’operatingprocedures
and designs — which include pre-shipping/post-facility arrival/pre-storage area
transfer contamination surveys of the seal-welded, never-to-be-opened spent
nuclear fuel (SNF) canisters and total isolation of the canister transfer building
from the facility sewer/wastewater system — will strictly limit actions that create
the possibility of a radiological contaminant leak and will provide for a rapid
response in the unlikely event such a leak occurs.Id.at 5-6;see also PFS
Undisputed Material Facts at 4-5. In this regard, PFS challenges the State’s
claim that a mistake by someone at the reactor site where the SNF originates,
531
followed by a similar mistake at the PFS facility, has the potential to cause
a radiological contamination problem.PFS contends that speculation regarding
suchanimprobablechainofeventsisnotsufficienttodefeatamotionforsummary
disposition.See PFS Motion at 8. Instead, PFS declares, the State is attempting to
require PFS unnecessarily to justify the absence of certain State-desired facility
design features.See id.at 9.
With respect to nonradiological contamination, in connection with the first
of the five specific paragraphs of Contention Utah O, PFS asserts that summary
dispositioninitsfavorisappropriatebecauseithasestablishedthatthepotentialfor
groundwatercontaminationfromISFSIconstructionactivities,routineoperations,
and the sewer/wastewater system is so small that any environmental impact to
the surrounding hydrology is not credible.See PFS Motion at 9-10. According
to PFS, its proposed ‘‘best management practices’’ for storing and disposing
of potential nonradiological contaminants will ensure that those substances do
not have an impact on the surrounding hydrology. PFS Motion at 10-11;see
also PFS Undisputed Material Facts at 2-4, 5-6, 8. In addition, PFS claims
its wastewater system will not contaminate the underlying groundwater because
there is no hydrologicallink between the surface water and the groundwater.
1 See
PFS Motion at 11-12;see also PFS Undisputed Material Facts at 2, 11.
PFS maintains it is entitled to summary disposition as well in connection with
State assertions about nonradiological contamination relating to part two of the
contention, which proffers the need to analyze the impacts of detention pond
contamination. Although noting that the pond is designed to hold the waters
from a single, 100-year storm event, PFS declares that summary disposition is
appropriate because no contamination is expected to enter the detention basin,
so that there will be no resulting impact upon the groundwater quality.See
PFS Motion at 12-13;see also PFS Undisputed Material Facts at 10. PFS also
asserts that by demonstrating that its procedure will preclude nonradiological
contamination, it has adequately addressed the State’s concerns for part three
of contention Utah O, which alleges the possibility of surface and groundwater
contamination. PFS Motion at 13-14;see also PFS Undisputed Material Facts
at 11-12. Moreover, PFS contends, even in the unlikely event contamination
wouldoccur, forthe reasonspreviouslyset forthregardingsurface water location,
soil permeability, and groundwater depth, such contamination would not reach
the surrounding surface or groundwater, so that summary disposition in its favor
shouldbe enteredfor this partof the contentionas well.See PFS Motionat 13-14;
see also PFS Undisputed Material Facts at 11-12.
1 PFS also cites the DEIS as support for its position that its sewer/wastewater system will not contaminate
underlying groundwater, noting the DEIS finding that the soil at the site has a ‘‘‘relatively low infiltration
capacity.’’’ PFS Motion at 11 (quoting DEIS at 4-12).
532
In response to the concerns raised in the fourth portion of contention Utah O,
regardingfacility water usage impacts, PFS asserts that both the DEIS and a State
study support its position that facility water usage of 2.3 acre-feet per year over
the life of the facility is unlikely to impact adversely the Skull Valley aquifer
or other water users, thus entitling it to summary disposition on this point as
well.See PFS Motion at 14;see also PFS Undisputed Material Facts at 12-13.
With regard to the latter point, PFS cites a 1987 State proposal for development
of the Superconducting Super Collider that indicated up to 4,000 acre-feet of
water couldbe removedannuallyfrom the SkullValley aquiferwithoutadversely
impactingotherusersinthe area. Finally, inaddressingthe fifthpartofcontention
Utah O, which alleges PFS needs to study the impact of potential groundwater
contaminationondowngradienthydrologicalresources,PFSdeclaresthatbecause
the State has not raised any information in addition to that put forward in its
unsuccessful attempts to support the other parts of this contention, PFS is entitled
to summary disposition on this portion of the contention as well.See PFS Motion
at 15;see also PFS Undisputed Material Facts at 13.
2. Staff Position
In responding to this PFS dispositive motion, the Staff states that it has
reviewed the PFS statement of undisputed material facts and has determined the
statementtobecorrect,subjecttoafewminorchanges,noneofwhichundermines
the Staff’s support for the PFS motion.See Staff Response at 7. The Staff also
asserts that while completing the DEIS, it evaluated the potential impacts from
site construction, operation, and decommissioning and determined that any such
impact upon the surrounding hydrology would be ‘‘small.’’Id.The Staff thus
contendsthat there no longer exists a genuine issue of material fact with regard to
Contention Utah O and that PFS is entitled to a merits decision, in its favor, as a
matteroflaw.
3. State Position
Accordingto the State, the PFS dispositive motionshouldbe deniedas lacking
adequate support, failing to comply with the National Environmental Policy Act
of 1969 (NEPA), 42 U.S.C. §4322 et seq.,and 10 C.F.R. Part 72, and as leaving
numerous material facts unresolved. In this regard, the State raises a number of
specific objections to the motion.
533
First, the State questions the supporting expert testimony presented by Donald
W. Lewis and Dr. H.C. ‘‘George’’ Liang,
2 asserting these PFS affiants do not
exhibit sufficient relevant knowledge, skills, experience, training, or education
to meet the standards necessary to be qualified as expert witnesses on the
matters at hand. The State contends that these PFS witnesses have demonstrated
unfamiliaritywithtermsandproceduresrelevanttotheissuesraisedbycontention
Utah O and, therefore, their testimony should be limited to matters relating to
their area of expertise, civil engineering.See State Response at 5-6.
The State also argues that NEPA and Part 72 require an ISFSI applicant to
assume and discuss facility accidents, which are not uncommon,and the potential
impacts those accidents may have upon the surrounding environment, which,
according to the State, PFS has failed to do.See State Response at 7;see also
OstlerDeclarationat4,7. TheStatecontendsthatNEPArequiresananalysisofall
reasonablyforeseeable impacts that may occur as a result of the proposed project,
which the State believes should include both radiological and nonradiological
spills, releases, and accidents at an ISFSI.See State Response at 7-8. Thus, the
StatecontendstheburdenfallsuponApplicantPFStoinformthepublicofpossible
accident scenarios and the potential environmental impacts these scenarios may
produce. In any event, the State contends, the PFS claim that such accidents
need not be considered — based on the ‘‘unsupported speculation’’ premise that
future employeeswill not have any accidentsand will follow procedures— is not
in keeping with generally accepted principles of behavior or with the dictates of
NEPA and Part 72.See id.at 9-10;see also State Disputed Material Facts at 8.
AlsocontestedbytheStatearetheconclusionsdrawnbytheaffiantssupporting
the PFS motion concerning the hydrological connection between the surface and
the underlying aquifer and the permeability of the surface soils.See State
Response at 10;see also State Disputed Material Facts at 1-9. According to
the State, to determine whether a connection exists between the surface and an
underlying aquifer requires defining the size and water quality of the underlying
aquifer and determiningthe permeability of the surface soil at the PFS site, which
the State claims PFS has failed to do.See State Response at 10-14;see also Ostler
Declaration at 2-4, 8-10; State Reply at 3-5. The State asserts that because soil
permeability varies among soil types and there are various types of soil present at
the PFS site, the conclusions the Staff and PFS draw about soil permeability in
the DEISandthe ER basedon regionwidedata are inapposite.See State Response
at 13;see also State Reply at 3-4. Moreover, the State maintains that contrary
to the PFS position, there will exist at the PFS facility pathways — such as
2 The State contends that Dr. Liang’s area of expertise lies specifically in ‘‘assembling data and information
collected by various experts in other fields of hydrology and using that information as input to mathematical
equations and programs to model the physical flow of surface and groundwaters.’’ State Response at 6. According
to the State, with this background Dr. Liang should not be allowed to opine about matters outside the data collection
and ‘‘groundwater dispersion’’ areas of hydrology.Id.
534
spills and release to soil, migration of septic/wastewater discharges, improperly
filled boreholes, and the retention pond — that will allow migration from the
surface to the groundwater.See id.at 13-14;see also Ostler Declaration at 5-8,
State Reply at 5-6. The State thus believes that PFS and the Staff have not
gathered sufficient site-specific data to support the conclusions drawn about this
hydrologicalconnection.See State Response at 14-15.
The State further contends that the Staff ‘‘minor’’ modifications to the PFS
statementof undisputedmaterialfacts simply emphasize the existence of material
factual disputes. For instance, the Staff provides an unsupported declaration
estimating PFS annual average water requirements at 4.4 acre-feet.See State
Reply at 6-7. So too, the State asserts, Staff changes to PFS statements
regarding the existence of radiological and nonradiological contamination from
‘‘nocrediblesourcesorpathways’’to‘‘unlikelytooccur’’showsarelianceonthe
PFS Start Clean — Stay Clean program rather than a lack of possible migration
pathways.See id.at 8-9. Finally, the State challenges the expertise of the Staff’s
supporting witness Ketelle by asserting that while he is qualified to opine about
groundwater contamination, remediation, and contaminant pathways, he is not
qualifiedto provideopinionsaboutengineeringdesign, construction,or industrial
risk managementrelative to the adequacy of the PFS structures and proceduresto
preclude contaminant releases.See id.at 9-10.
C. Licensing Board Determination
1. Impacts Relating to Radiological and Nonradiological Contamination
We begin our analysis with the Applicant’s assessment of the potential impact
the ISFSI’s construction, operation, and sewer/wastewater system will have upon
the surrounding surface water and groundwater, the subject of the first paragraph
of Contention Utah O. With its Start Clean — Stay Clean program, PFS commits
to operatingin a mannerdesigned to eliminate any scenariowhereby radiological
contaminants might reach surface water and groundwater.
For its part, the State does not specifically question the adequacy of these
radiologicalcontamination prevention proceduresor postulate a specific scenario
under which such contamination could be released into surface- or groundwater
pathways.3 Instead, it supports this aspect of its challenge to the PFS motion with
the declaration of Don Ostler in which he states:
In my 27 years’ experience in reviewing practices at industrial facilities, I am aware of
numerous incidents where employees have accidentally or intentionally released pollutants or
3 The Board notes that none of the State’s submitted disputed material facts address the adequacy of the proposed
PFS procedures for safeguarding against the possible release and spread of radiological contaminants.Compare
PFS Undisputed Material Facts at 4-5with State Disputed Material Facts at 1-9.
535
contaminants, or placed same into a septic system. Even companies with best management
practices cannot control accidents that occur onsite. Without adequate monitoring systems,
PFS will be unaware if such accidents occur. Also PFS does not even have contingency plans
or containment systems to address possible accidents. It is credible that a facility operator
would assume that spills and releases as a result of human error and misconduct can and do
occur at industrial and commercial facilities, such as the PFS facility.
Ostler Declaration at 7.
In this statement, Mr. Ostler paints with a broad brush, essentially asserting
the industrial truism that when it comes to ‘‘contaminants,’’ accidents happen.
From our review of Mr. Ostler’s credentials, however, it is apparent that while
he has considerable expertise in hydrology, that expertise essentially relates to
nonradiological, as opposed to radiological, contaminants.See id.at 1;see also
PFS Motion Exh. B, at 24-28 (Deposition of Don A. Ostler (Apr. 19, 2001))
[hereinafter Ostler Deposition]. As PFS correctly notes, he does not identify a
specific deficiencyin connectionwith the PFS Start Clean — Stay Clean program
that could result in radiological contamination being introduced from the PFS
facility into the local surface water or groundwater system.See PFS Motion at 8
(citing Ostler Deposition at 50-51, 56-64).
As we have observed before herein, while a summary disposition opponent
is entitled to all reasonable inferences that may be drawn from any evidence
submitted, this does not relieve it of the responsibility, in the face of well-pled
undisputed material facts, of providing something more than suspicions or bald
assertions as the basis for a material factual dispute.See LBP-99-35, 50 NRC
180, 194 (1999). In this instance, in addressing the likelihood of radiological
contamination,theStatehasfailedtoprovideanyshowingthatmeetsthisstandard
so as to establish a material factual dispute about the reasonable forseeability of
such releases that would engender the need for any additional NEPA analysis.
4
We thus grant the PFS motion in this regard.
On the other hand, given Mr. Ostler’s experience, we have no difficulty in
finding that, with respect to nonradiological contaminants, his representations
regarding problems that have occurred at industrial facilities despite the use of
‘‘bestmanagementpractices’’inconnectionwithsuchcontaminantsaresufficient
to create such a material factual dispute relative to that type of contaminant. In
this regard, PFS’s own description indicates that, as far as nonradiological
contaminants are concerned, its facility will be essentially no different from
typical industrial facilities of its size (see PFS Motion at 3). But PFS has not
4 In this regard, we find the State’s attempt to interpose a material factual dispute relative to the adequacy of the
PFS program by challenging the qualifications of the Staff’s supporting witness is unavailing. Putting aside the fact
that the State’s characterization of the witness’s expertise in this regard may not be entirely accurate,see Ketelle
Affidavit, unnumbered attach. (resume of Richard H. Ketelle), it is apparent that the witness’s conclusions are fully
consistent with the Staff analysis as presented in its DEIS.See DEIS at 4-10 (proposed PFS facility is designed and
intended to be operated as a zero release facility, thus, no effluents are expected).
536
indicated it has in mind for nonradiological contaminants any specially designed
cradle-to-graveprogram, like the Start Clean — Stay Clean program providesfor
radiological ones, to obviate human error.
As to the fate of such contaminants, we believe that the State has raised,
via Mr. Ostler’s expertise, legitimate concerns about the PFS analysis of the
permeability of the surface soils and the hydrological connection between the
surface and the groundwater. PFS and the State have presented experts with
opposing assessments of soil permeability and the ability of a nonradiological
contaminant released into the soil to reach groundwater. The parties have also
asserted differing expert opinions concerning the adequacy of PFS’s proposed
septic system. In particular, opinions differ about the ability of the septic system
to treat the type of nonradiologicalwaste that will be encountered and the degree
to which septic wastes will ultimately reach and contaminate the groundwater.
Compare Utah Disputed Material Facts at 4-5 with PFS Undisputed Material
Facts at 6, 8. And the same is true for the nonradiological aspects of paragraphs
two and three of this contention. Given these disputes, and the standards that we
must apply (see p. 530, above), summary disposition is inappropriate in these
instances.5 See also Private Fuel Storage,LBP-01-39, 54 NRC at 509-10, 516.
2. Potential Impact on Other Well Users and Aquifers
With respect to part four of the contention, dealing with water supply, PFS
contends that even under the facility’s most conservative water-use assumptions
(i.e., its estimates showing the highest water use), the other well users or the
Skull Valley aquifer will not be adversely affected. In support of its claim, PFS
declares that its projected water usage will remain well within limits established
by the State in a 1987 development proposal created for the Superconducting
Super Collider.
6 See PFS Motion at 14.
Although, as noted earlier, the State makes reference to a Staff estimate of
annual average water usage higher than the PFS estimate,see State Reply at 6-7,
and also alludes to the Staff’s DEIS discussion indicating that a lack of available
data made it difficult fully to refine a groundwater availability analysis,see Utah
Disputed Material Facts at 6, any dispute here does not involve a material fact.
Put another way, because the State does not contest the earlier State-generated
water availability data (relied upon by PFS), then regardless of how the dispute
over the facility’s annual average use estimates were to be resolved, the Skull
5 In light of this finding regarding the nonradiological contaminant aspects of the contention, at this juncture we
need not resolve the State challenge to the hydrology expertise of the PFS supporting witnesses.
6 According to PFS, the State determined that up to 4000 acre-feet of water could be removed from the Skull
Valley aquifer without impacting other users in the area, while PFS asserts its proposed ISFSI will require only an
average 2.3 acre-feet per year.See PFS Motion at 14.
537
Valley aquiferwouldprovidesignificantmargin— in the rangeof a thousandfold
— for that usage.
Because the State has not contested this PFS showing based on State data,
7 the
Boardconcludesthattherenolongerremainsadisputeofmaterialfactconcerning
the impact water usage at the proposed facility will have upon the Skull Valley
aquifer and surroundingwell users, thereby entitling PFS to judgment in its favor
regarding part four of this contention.
3. Impact on Downgradient Water Users
In concert with our determination in Section II.C.1 above, with its showing
regarding the means by which nonradiological contaminants could be released
to reach the ground- and surface water surrounding the proposed site, the State
has created material factual disputes about the impact the ISFSI may have
upon downgradient water users. Thus, the Board concludes that the State has
demonstrated a genuine dispute with regard to this issue, thereby precluding the
Board from entering summary disposition in favor of PFS with regard to part five
of the contention.
III. CONCLUSION
PFS having demonstrated there does not exist a dispute of material fact
regarding (1)radiological contamination at the facility relative to parts one, two,
three,andfiveofContentionUtahO,Hydrology;and(2)thepotentialimpactofthe
facility’s water usage on other well users and the aquifer as presentedby part four
of Contention Utah O, we grant these aspects of its summary disposition request
regarding this contention. With respect to facility nonradiological contamination
as it is implicated in parts one, two, three, and five of this contention, we find that
the State has demonstrated the existence of material factual disputes, including
those involving competing expert opinions. Thus, PFS having failed to meet
its burden in this regard, we deny its request for summary disposition on these
aspects of Contention Utah O.
7 We also are not persuaded that there is a material factual dispute by reason of the State’s passing suggestion
that only the State Engineer has the authority to determine the legal adequacy of groundwater withdrawal,seeState
Reply at 7, which appears to hark back to a matter addressedin the context of a different, and already resolved, issue.
See LBP-01-24, 54 NRC 174, 175-76 (2001) (dismissing with prejudice Contention Utah T, Inadequate Assessment
of Required Permits and Other Entitlement).
538
For the foregoing reasons, it is, this 28th day of December 2001, ORDERED
that the June 29, 2001 PFS motion for summary disposition is granted in part and
denied in part as is described in Section II.C of this Decision.
THE ATOMIC SAFETY AND
LICENSING BOARD
8
Michael C. Farrar, Chairman
ADMINISTRATIVE JUDGE
Peter S. Lam
ADMINISTRATIVE JUDGE
Rockville, Maryland
December 28, 2001
8 Although Judge Kline participated in deliberations regarding this issuance and agrees with the result, he was
unavailable to sign it.
Copies of this Memorandum and Order were sent this date by Internet e-mail transmission to counsel for (1)
Applicant PFS; (2) Intervenors Skull Valley Band of Goshute Indians, Ohngo Gaudadeh Devia, Confederated Tribes
of the Goshute Reservation, Southern Utah Wilderness Alliance, and the State; and (3) the Staff.
539
CASE NAME INDEX
CONNECTICUT YANKEE ATOMIC POWER COMPANY
OPERATING LICENSE AMENDMENT; MEMORANDUM AND ORDER; Docket No. 50-213-OLA
(License Termination Plan); CLI-01-25, 54 NRC 368 (2001)
OPERATING LICENSE AMENDMENT; MEMORANDUM AND ORDER (Ruling on Standing and
Contentions); Docket No. 50-213-OLA (ASLBP No. 01-787-02-OLA); LBP-01-21, 54 NRC 33 (2001)
OPERATING LICENSE AMENDMENT; MEMORANDUM AND ORDER (Ruling on Motion of
Connecticut Yankee for Reconsideration (Portions of LBP-01-21)); Docket No. 50-213-OLA (ASLBP
No. 01-787-02-OLA); LBP-01-25, 54 NRC 177 (2001)
OPERATING LICENSE AMENDMENT; ORDER (Approving Stipulation and Settlement Agreement, and
Granting Motion To Participate as Interested State); Docket No. 50-213-OLA (ASLBP No. 01-787-02-
OLA); LBP-01-36, 54 NRC 474 (2001)
CONSOLIDATED EDISON COMPANY OF NEW YORK
LICENSE TRANSFER; MEMORANDUM AND ORDER; Docket Nos. 50-003-LT, 50-247-LT
(consolidated); CLI-01-19, 54 NRC 109 (2001)
LICENSE TRANSFER; ORDER (Terminating Proceeding); Docket Nos. 50-003-LT, 50-247-LT
(consolidated) (ASLBP No. 01-792-03-LT); LBP-01-28, 54 NRC 221 (2001)
DOMINION NUCLEAR CONNECTICUT, INC.
OPERATING LICENSE AMENDMENT; MEMORANDUM AND ORDER; Docket Nos. 50-336-LA,
50-423-LA; CLI-01-24, 54 NRC 349 (2001)
OPERATING LICENSE AMENDMENT; MEMORANDUM AND ORDER (Staff Motion To Continue
To Hold Proceeding in Abeyance); Docket No. 50-423-LA-3 (ASLBP No. 00-771-01-LA-R) (Facility
Operating License NPF-49); LBP-01-29, 54 NRC 223 (2001)
DUKE COGEMA STONE & WEBSTER
CONSTRUCTION AUTHORIZATION REQUEST; MEMORANDUM AND ORDER; Docket No. 070-
03098-ML; CLI-01-28, 54 NRC 393 (2001)
CONSTRUCTION AUTHORIZATION REQUEST; MEMORANDUM AND ORDER (Ruling on Standing
and Admissibility of Contentions); Docket No. 070-03098-ML (ASLBP No.01-790-01-ML); LBP-01-
35, 54 NRC 403 (2001)
DUKE ENERGY CORPORATION
OPERATING LICENSE RENEWAL; ORDER (Referring Petitions for Intervention and Requests for
Hearing to the Atomic Safety and Licensing Board Panel); Docket Nos. 50-369, 50-370, 50-413, 50-
414; CLI-01-20, 54 NRC 211 (2001)
OPERATING LICENSE RENEWAL; MEMORANDUM AND ORDER; Docket Nos. 50-369-LR, 50-370-
LR, 50-413-LR, 50-414-LR (consolidated); CLI-01-27, 54 NRC 385 (2001)
OPERATING LICENSE RENEWAL; MEMORANDUM AND ORDER (Granting Motion To Extend
Time and Resetting Deadlines and Schedule for Proceedings); Docket Nos. 50-369-LR, 50-370-LR,
50-413-LR, 50-414-LR (ASLBP No. 02-794-01-LR); LBP-01-31, 54 NRC 242 (2001)
ENTERGY NUCLEAR FITZPATRICK LLC
LICENSE TRANSFER; MEMORANDUM AND ORDER; Docket Nos. 50-333-LT, 50-286-LT
(consolidated); CLI-01-16, 54 NRC 1 (2001)
ENTERGY NUCLEAR INDIAN POINT 2 LLC
LICENSE TRANSFER; MEMORANDUM AND ORDER; Docket Nos. 50-003-LT, 50-247-LT
(consolidated); CLI-01-19, 54 NRC 109 (2001)
I-1
CASE NAME INDEX
ENTERGY NUCLEAR INDIAN POINT 3 LLC
LICENSE TRANSFER; MEMORANDUM AND ORDER; Docket Nos. 50-333-LT, 50-286-LT
(consolidated); CLI-01-16, 54 NRC 1 (2001)
LICENSE TRANSFER; ORDER (Terminating Proceeding); Docket Nos. 50-003-LT, 50-247-LT
(consolidated) (ASLBP No. 01-792-03-LT); LBP-01-28, 54 NRC 221 (2001)
REQUEST FOR ACTION; DIRECTOR’S DECISION UNDER 10 C.F.R. §2.206; Docket No. 50-247
(License No. DPR-26); DD-01-4, 54 NRC 326 (2001)
ENTERGY NUCLEAR OPERATIONS, INC.
LICENSE TRANSFER; MEMORANDUM AND ORDER; Docket Nos. 50-333-LT, 50-286-LT
(consolidated); CLI-01-16, 54 NRC 1 (2001)
LICENSE TRANSFER; MEMORANDUM AND ORDER; Docket Nos. 50-003-LT, 50-247-LT
(consolidated); CLI-01-19, 54 NRC 109 (2001)
LICENSE TRANSFER; ORDER (Terminating Proceeding); Docket Nos. 50-003-LT, 50-247-LT
(consolidated) (ASLBP No. 01-792-03-LT); LBP-01-28, 54 NRC 221 (2001)
REQUEST FOR ACTION; DIRECTOR’S DECISION UNDER 10 C.F.R. §2.206; Docket No. 50-247
(License No. DPR-26); DD-01-4, 54 NRC 326 (2001); DD-01-5, 54 NRC 340 (2001)
FLORIDA POWER & LIGHT COMPANY
LICENSE RENEWAL; MEMORANDUM AND ORDER; Docket Nos. 50-250-LR, 50-251-LR; CLI-01-
17, 54 NRC 3 (2001)
INTERNATIONAL URANIUM (USA) CORPORATION
MATERIALS LICENSE AMENDMENT; MEMORANDUM AND ORDER; Docket No. 40-8681-MLA-8
(Source Material License Amendment) (License No. SUA-1358); CLI-01-18, 54 NRC 27 (2001)
MATERIALS LICENSE AMENDMENT; MEMORANDUM AND ORDER; Docket No. 40-8681-MLA-9;
CLI-01-21, 54 NRC 247 (2001)
MAINE YANKEE ATOMIC POWER COMPANY
OPERATING LICENSE AMENDMENT; ORDER (Approving Settlement Agreement and Terminating
Proceeding); Docket No. 50-309-OLA (ASLBP No. 00-780-03-OLA); LBP-01-27, 54 NRC 219 (2001)
MOAB MILL RECLAMATION TRUST (formerly ATLAS CORPORATION)
MATERIALS LICENSE AMENDMENT; MEMORANDUM AND ORDER (Terminating Proceedings);
Docket Nos. 40-3453-MLA-4, 40-3453-MLA-5 (ASLBP Nos. 99-763-05-MLA, 00-781-07-MLA)
(Amendment of License Condition (LC) 55 B(2), Source Material License SUA-17); LBP-01-33, 54
NRC 291 (2001)
POWER AUTHORITY OF THE STATE OF NEW YORK
LICENSE TRANSFER; MEMORANDUM AND ORDER; Docket Nos. 50-333-LT, 50-286-LT
(consolidated); CLI-01-16, 54 NRC 1 (2001)
PRIVATE FUEL STORAGE, L.L.C.
INDEPENDENT SPENT FUEL STORAGE INSTALLATION; MEMORANDUM AND ORDER; Docket
No. 72-22-ISFSI; CLI-01-22, 54 NRC 255 (2001); CLI-01-26, 54 NRC 376 (2001)
INDEPENDENT SPENT FUEL STORAGE INSTALLATION; MEMORANDUM AND ORDER (Granting
Summary Disposition Motion Regarding Contention Utah V); Docket No. 72-22-ISFSI (ASLBP No.
97-732-02-ISFSI); LBP-01-22, 54 NRC 155 (2001)
INDEPENDENT SPENT FUEL STORAGE INSTALLATION; MEMORANDUM AND ORDER (Granting
Summary Disposition Motion Regarding Contention Utah Z); Docket No. 72-22-ISFSI (ASLBP No.
97-732-02-ISFSI); LBP-01-23, 54 NRC 163 (2001)
INDEPENDENT SPENT FUEL STORAGE INSTALLATION; MEMORANDUM AND ORDER
(Dismissing Contention Utah T); Docket No. 72-22-ISFSI (ASLBP No. 97-732-02-ISFSI); LBP-01-24,
54 NRC 174 (2001)
INDEPENDENT SPENT FUEL STORAGE INSTALLATION; MEMORANDUM AND ORDER (Granting
Summary Disposition Motion Regarding Contention Utah AA); Docket No. 72-22-ISFSI (ASLBP No.
97-732-02-ISFSI); LBP-01-26, 54 NRC 199 (2001)
INDEPENDENT SPENT FUEL STORAGE INSTALLATION; MEMORANDUM AND ORDER (Granting
in Part and Denying in Part Summary Disposition Motion Regarding Contention Utah DD); Docket
No. 72-22-ISFSI (ASLBP No. 97-732-02-ISFSI); LBP-01-30, 54 NRC 231 (2001)
I-2
CASE NAME INDEX
INDEPENDENT SPENT FUEL STORAGE INSTALLATION; MEMORANDUM AND ORDER (Denying
Motion for Summary Disposition Regarding Contention SUWA B); Docket No. 72-22-ISFSI (ASLBP
No. 97-732-02-ISFSI); LBP-01-34, 54 NRC 293 (2001)
INDEPENDENT SPENT FUEL STORAGE INSTALLATION; MEMORANDUM AND ORDER (Denying
Motion for Admission of Late-Filed Contention Utah RR and Referring Ruling to the Commission);
Docket No. 72-22-ISFSI (ASLBP No. 97-732-02-ISFSI); LBP-01-37, 54 NRC 476 (2001)
INDEPENDENT SPENT FUEL STORAGE INSTALLATION; MEMORANDUM AND ORDER (Denying
Motion for Reconsideration Regarding LBP-01-34); Docket No. 72-22-ISFSI (ASLBP No. 97-732-02-
ISFSI); LBP-01-38, 54 NRC 490 (2001)
INDEPENDENT SPENT FUEL STORAGE INSTALLATION; MEMORANDUM AND ORDER (Ruling
on Applicant’s Motion for Summary Disposition of Part A of ‘‘Contention Utah L, Geotechnical’’ and
on Related Matters); Docket No. 72-22-ISFSI (ASLBP No. 97-732-02-ISFSI); LBP-01-39, 54 NRC 497
(2001)
INDEPENDENT SPENT FUEL STORAGE INSTALLATION; MEMORANDUM AND ORDER (Granting
in Part and Denying in Part Summary Disposition Regarding Contention Utah O, Hydrology); Docket
No. 72-22-ISFSI (ASLBP No. 97-732-02-ISFSI); LBP-01-40, 54 NRC 526 (2001)
U.S. ARMY
MATERIALS LICENSE AMENDMENT; MEMORANDUM AND ORDER (Granting Request To Hold
Proceeding in Abeyance); Docket No. 40-8838-MLA (ASLBP No. 00-776-04-MLA); LBP-01-32, 54
NRC 283 (2001)
U.S. ENRICHMENT CORPORATION
CERTIFICATE AMENDMENT; MEMORANDUM AND ORDER; Docket No. 70-7001 (Certificate GDP-
1); CLI-01-23, 54 NRC 267 (2001)
CERTIFICATE AMENDMENT; DIRECTOR’S DECISION UNDER 10 C.F.R. §76.45(d); Docket No.
70-7001 (Certificate GDP-1); DD-01-3, 54 NRC 305 (2001)
I-3
LEGAL CITATIONS INDEX
CASES
Advanced Medical Systems, Inc.(One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102 &
n.13 (1993)
appropriateness of summary judgment when evidence is ‘‘merely colorable’’ or is ‘‘not sufficiently
probative’’; CLI-01-22, 54 NRC 265 n.42 (2001)
Advanced Medical Systems, Inc.(One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 NRC 98, 102-03
(1993)
burden on proponents and opponents of summary disposition motions; LBP-01-22, 54 NRC 159
(2001); LBP-01-23, 54 NRC 168 (2001); LBP-01-26, 54 NRC 204 (2001)
standard for grant of summary disposition; LBP-01-30, 54 NRC 235 (2001); LBP-01-34, 54 NRC 296
(2001); LBP-01-39, 54 NRC 509 (2001); LBP-01-40, 54 NRC 530 (2001)
Air Courier Conference v. Postal Workers,498 U.S. 517, 528, 530 (1991)
requirement that nexus between petitioner’s interest and statutory provisions be demonstrated to
establish standing; CLI-01-23, 54 NRC 275 (2001); DD-01-3, 54 NRC 310 n.9 (2001)
Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420,
423-24 (1976)
standing to intervene on basis of residence or food production in proximity to facility; LBP-01-35, 54
NRC 418 n.9 (2001)
American Federation of Government Employees, Local 2119 v. Cohen,171 F.3d 460 (7th Cir. 1999)
satisfaction of zone-of-interests test if petitioners are more than merely incidential beneficiaries of a
statute; CLI-01-23, 54 NRC 275 n.17 (2001)
Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 249 (1986)
appropriateness of summary judgment when evidence is ‘‘merely colorable’’ or is ‘‘not sufficiently
probative’’; CLI-01-22, 54 NRC 265 n.42 (2001)
Ann v. United States,205 F.3d 1168, 1175 (9th Cir. 2000)
use of aids in statutory construction of meaning of words, even when words appear clear on superficial
examination; CLI-01-23, 54 NRC 279 n.32 (2001)
Arizona Public Service Co.(Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC
149, 155 (1991)
rejection of contentions for failure to meet pleading requirements; LBP-01-35, 54 NRC 421 (2001)
Arizona Public Service Co.(Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC
149, 155-56 (1991)
limits on licensing board authority to supply missing information or draw factual inferences on
intervention petitioner’s behalf; LBP-01-35, 54 NRC 422 (2001)
standards applied in ruling on admissibility of contentions in license termination plan proceeding;
LBP-01-21, 54 NRC 47 (2001)
Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade,412 U.S. 800, 808 (1973)
NRC authority to change its statutory interpretations by providing a reasoned analysis supporting its
new approach; DD-01-3, 54 NRC 324 n.48 (2001)
Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-14, 48 NRC 39,
41 (1998)
burden on proponents of contentions to meet pleading requirements; LBP-01-35, 54 NRC 422 (2001)
I-5
LEGAL CITATIONS INDEX
CASES
Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-15, 48 NRC 39,
45 (1998)
Commission consideration of petitions by entities who do not have formal party status; CLI-01-28, 54
NRC 398 (2001)
Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-19, 48 NRC 132
(1998)
licensing board discretion in managing proceedings; CLI-01-25, 54 NRC 374 (2001)
Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC
325, 348 (1998)
adequacy of reference to a document, without more, as basis for contention; LBP-01-21, 54 NRC 49
(2001); LBP-01-35, 54 NRC 456, 458-59, 465 (2001)
adequacy of response to contention that provides only a general reference to a document without
specific citations to relevant material in the document; LBP-01-35, 54 NRC 443 n.11 (2001)
Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC
325, 349 (1998)
Staff performance as subject of contentions, litigability of; LBP-01-35, 54 NRC 433 (2001)
Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC
325, 350 (1998),aff’d, National Whistleblower Center v. Nuclear Regulatory Commission,208 F.3d 256
(D.C. Cir. 2000),cert. denied,121 S. Ct. 758 (2001)
litigability of NRC Staff review in license renewal proceeding; CLI-01-17, 54 NRC 25 (2001)
use of RAIs to support contentions; LBP-01-21, 54 NRC 63 (2001)
Baltimore Gas & Electric Co.(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC
325, 351 n.12 (1998)
delay in discovery against Staff until licensee responses to RAIs have been received and Staff Safety
Evaluation Report has been issued; LBP-01-21, 54 NRC 42 (2001)
Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc.,462 U.S. 87 (1983)
longstanding Commission practice to address specific environmental or safety issues generically through
rulemaking; CLI-01-17, 54 NRC 14 (2001)
Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc.,462 U.S. 87, 91 (1983)
NRC authority to adopt generic NEPA rules evaluating the environmental effects of nuclear power
plant’s fuel cycle; CLI-01-17, 54 NRC 14 (2001)
Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc.,462 U.S. 87, 97 (1983)
NEPA requirement to consider environmental concerns relevant to license renewals; CLI-01-17, 54
NRC 14 (2001)
Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc.,462 U.S. 87, 100-01 (1983)
NRC discretion to structure its NEPA inquiries; CLI-01-17, 54 NRC 14 (2001)
Bellotti v. NRC,725 F.2d 1380, 1382 (D.C. Cir. 1983)
limits on litigable issues in NRC proceedings; CLI-01-24, 54 NRC 364 (2001)
Carolina Power and Light Co.(Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, 11
NRC 514, 516 (1980)
licensing board authority to direct Staff in performance of nonadjudicatory functions; LBP-01-29, 54
NRC 238 (2001)
Carolina Power and Light Co.(Shearon Harris Nuclear Power Plant), LBP-85-5, 21 NRC 410 (1985)
rationale for toughening contention pleading rule; LBP-01-39, 54 NRC 506 (2001)
Central and South West Services, Inc. v. EPA,220 F.3d 683, 700-01 (5th Cir. 2000)
injury-in-fact showing of realistic threat of direct injury required to establish organizational standing to
intervene; CLI-01-21, 54 NRC 253 (2001)
Chevron U.S.A. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 842-43 (1984)
deference given to interpretation of statute by agency charged with its administration; DD-01-3, 54
NRC 321 n.38 (2001)
precedential effect of draft standard review plan; CLI-01-23, 54 NRC 279-80 (2001); DD-01-3, 54
NRC 324 (2001)
I-6
LEGAL CITATIONS INDEX
CASES
Chevron U.S.A. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 862 (1984)
legitimacy of Commission interpretation of its regulatory guidance that departs from prior agency
views; DD-01-3, 54 NRC 324 (2001)
Chevron U.S.A. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 863-64 (1984)
agency authority to reevaluate its interpretations of regulatory guides; CLI-01-23, 54 NRC 280 (2001);
DD-01-3, 54 NRC 324 (2001)
Church of the Holy Trinity v. United States,143 U.S. 457, 461, 12 S. Ct. 511, 512 (1892)
avoidance of absurd, unjust, or unintended result in literal construction of statutes; DD-01-3, 54 NRC
321 n.36 (2001)
Cleveland Electric Illuminating Co.(Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741,
753-54 (1977)
burden on proponent of summary disposition motion if opponent fails to respond to dispositive motion;
LBP-01-30, 54 NRC 235 (2001)
Cleveland Electric Illuminating Co.(Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 318
(1996)
contents of technical specifications; CLI-01-24, 54 NRC 351-52 (2001)
Cleveland Electric Illuminating Co.(Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 326-29
(1996)
hearing rights on licensee actions or changes in procedures relating to technical specifications;
CLI-01-24, 54 NRC 360, 362 n.10 (2001)
Cleveland Electric Illuminating Co.(Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 328
(1996)
need for all operational details to be included in technical specifications; CLI-01-24, 54 NRC 360
(2001)
Cleveland Electric Illuminating Co.(Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315, 329 n.37
(1996)
limits on litigable issues in NRC proceedings; CLI-01-24, 54 NRC 364 (2001)
Commonwealth Edison Co.(Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 244
(1986)
weight given to good cause in balancing of five factors for admission of late-filed contentions;
LBP-01-37, 54 NRC 483 (2001); LBP-01-39, 54 NRC 507 (2001)
Commonwealth Edison Co.(Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241,
244-45 (1986)
showing necessary on other factors in absence of good cause for late filing; LBP-01-37, 54 NRC 483
(2001); LBP-01-39, 54 NRC 507 (2001)
Commonwealth Edison Co.(Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-27, 22 NRC 126,
137-38 (1985)
exclusion of acts by enemies of the United States from threat protection goals of nuclear facilities;
LBP-01-37, 54 NRC 487 (2001)
Commonwealth Edison Co.(Carroll County Site), ALAB-601, 12 NRC 18, 24 (1980)
limit on contentions to issues that are germane to application pending before the board; LBP-01-21, 54
NRC 49 (2001)
Commonwealth Edison Co.(Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 426-27 (1980)
limit on contentions to issues that are germane to application pending before the board; LBP-01-21, 54
NRC 49 (2001)
Commonwealth Edison Co.(Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 189
(1999)
standard for litigation of management character or integrity; CLI-01-24, 54 NRC 365, 366 (2001)
Commonwealth Edison Co.(Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 192
(1999)
scope of litigable issues in materials license amendment proceeding limited to those that establish a
distinct new harm or threat apart from activities already licensed; CLI-01-21, 54 NRC 251 (2001)
showing necessary to demonstrate injury-in-fact when contesting a license amendment; CLI-01-18, 54
NRC 31 (2001)
I-7
LEGAL CITATIONS INDEX
CASES
Commonwealth Edison Co.(Zion Nuclear Power Station), CLI-00-5, 51 NRC 90, 94-98 (2000)
Commission preference for licensing boards to develop a full record on fact-based issues before it
considers them in review; CLI-01-27, 54 NRC 392 (2001)
Commonwealth Edison Co.(Zion Nuclear Power Station, Units 1 and 2), CLI-00-5, 51 NRC 90, 98 (2000)
burden on petitioners to establish standing in Part 76 proceeding; CLI-01-23, 54 NRC 272 (2001);
DD-01-3, 54 NRC 308 (2001)
Connecticut Bankers Ass’n v. Board of Governors,627 F.2d 245, 251 (D.C. Cir. 1980)
support required for contentions at admission stage; LBP-01-21, 54 NRC 48 (2001)
Connecticut Yankee Atomic Power Co.(Haddam Neck Plant), CLI-01-25, 54 NRC 368, 373-74 (2001)
increased litigation burden of adding a new contention as ‘‘immediate and serious irreparable impact’’
for purpose of interlocutory review; LBP-01-39, 54 NRC 521 (2001)
Connecticut Yankee Atomic Power Co.(Haddam Neck Plant), CLI-01-25, 54 NRC 368, 374-75 (2001)
Commission reluctance to interfere in ongoing licensing proceedings; LBP-01-37, 54 NRC 484 (2001)
standard for referral of rulings to Commission; LBP-01-37, 54 NRC 488 (2001)
Consolidated Edison Co. of New York (Indian Point, Unit 2), CLI-82-15, 16 NRC 27 (1982)
Commission authority to accept discretionary interlocutory review of novel issues at request of party
rather than licensing board; CLI-01-25, 54 NRC 374 (2001)
Consolidated Edison Co. of New York (Indian Point, Units 1, 2, and 3), ALAB-561, 10 NRC 410, 411
(1979)
seismic analysis considerations for independent spent fuel storage installations; LBP-01-39, 54 NRC
500 (2001)
Consolidated Edison Co. of New York (Indian Point, Units 1 and 2), CLI-01-8, 53 NRC 225 (2001)
denial of request to suspend proceedings on transfer of units 1 and 2 until after completion of
Commission proceeding on transfer of unit 3; CLI-01-26, 54 NRC 382 n.21 (2001)
Consolidated Edison Co. of New York (Indian Point, Units 1 and 2), CLI-01-8, 53 NRC 225, 229 (2001)
suspension of license transfer adjudication pending completion of a similar NRC adjudication involving
another nuclear plant at the same location; CLI-01-27, 54 NRC 390 n.9 (2001)
Consolidated Edison Co. of New York (Indian Point, Units 1 and 2), CLI-01-8, 53 NRC 225, 229-30 (2001)
applicability of late-filing standards to adoption of other petitioners’ issues; CLI-01-19, 54 NRC 132
n.13 (2001)
burden of litigation as irreparable harm for purpose of obtaining stay of proceeding; CLI-01-27, 54
NRC 391 (2001)
Consumers Power Co.(Big Rock Point Nuclear Plant), ALAB-725, 17 NRC 562, 568 (1983)
weight given to guidance documents that assist in compliance with applicable regulations; CLI-01-22,
54 NRC 264 (2001)
Consumers Power Co.(Big Rock Point Plant), LBP-84-32, 20 NRC 601, 639-52 (1984)
calculation of probability of aircraft crash hazards; CLI-01-22, 54 NRC 260 (2001)
County Court of Ulster County v. Allen,442 U.S. 140, 156 (1979)
distinction among factual levels at which experts may disagree; LBP-01-39, 54 NRC 510 (2001)
Curators of the University of Missouri,CLI-95-1, 41 NRC 71, 95-96 (1995),reconsideration denied,
CLI-95-8, 41 NRC 386, 395 (1995)
rejection of license transfer application because of omissions or errors; CLI-01-19, 54 NRC 131 (2001)
Curators of the University of Missouri,CLI-95-1, 41 NRC 71, 98, 100 (1995)
weight given to guidance documents in construing regulations; LBP-01-21, 54 NRC 60, 62 (2001);
LBP-01-25, 54 NRC 184 (2001)
Curators of the University of Missouri,CLI-95-1, 41 NRC 71, 149 (1995)
weight given to regulatory guides; CLI-01-22, 54 NRC 264 (2001)
Curators of the University of Missouri,CLI-95-8, 41 NRC 386, 396 (1995)
Staff performance as subject of contentions, litigability of; LBP-01-35, 54 NRC 433 (2001)
Curators of the University of Missouri,CLI-95-8, 41 NRC 386, 397 (1995)
weight given to standard review plans; DD-01-3, 54 NRC 324 n.47 (2001)
Daubert v. Merrill Dow Pharmaceuticals,509 U.S. 579, 596 (1993)
standards for acceptance of expert testimony; LBP-01-39, 54 NRC 510 n.19 (2001)
I-8
LEGAL CITATIONS INDEX
CASES
Dominion Nuclear Connecticut, Inc.(Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC
349, 364 (2001)
litigability of contention that amounts to general attack on regulations; LBP-01-37, 54 NRC 485 (2001)
Dr. James E. Bauer (Order Prohibiting Involvement in NRC-Licensed Activities), CLI-95-3, 41 NRC 245
(1995)
refusal to eliminate certain bases of Staff charges as pervasive impact for purpose of interlocutory
review; CLI-01-25, 54 NRC 374 n.13 (2001)
Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-13, 53
NRC 478, 483 n.2 (2001)
need for petitioners to specify an alternative to fill in gap of alleged deficiencies in licensee
application; LBP-01-21, 54 NRC 55 (2001)
Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54
NRC 393 (2001)
abeyance of proceedings pending Commission’s generic consideration of terrorism-related issues;
CLI-01-27, 54 NRC 389 (2001)
postponement of proceedings to await completion of review of agency’s terrorism-related policies, need
for; CLI-01-26, 54 NRC 380 (2001)
Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54
NRC 403, 432 (2001)
scope of licensing board determination at contention admissibility stage; LBP-01-39, 54 NRC 519
(2001)
Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54
NRC 403, 444-47 (2001
referral of ruling admitting contention relating to environmental impacts of terrorist attacks; LBP-01-37,
54 NRC 487, 489 n.4 (2001)
Duke Energy Corp.(McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2),
CLI-01-20, 54 NRC 211, 214-16 (2001)
use of telephone conference to ensure compliance with Commission’s guidance on expedited schedule;
LBP-01-31, 54 NRC 244 (2001)
Duke Energy Corp.(McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2),
CLI-01-27, 54 NRC 385 (2001)
abeyance or suspension of proceedings pending completion of review of terrorism-related rules and
policies, need for; CLI-01-26, 54 NRC 380 (2001); CLI-01-28, 54 NRC 397 (2001)
Duke Energy Corp.(McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2),
CLI-01-27, 54 NRC 385, 390-91 (2001)
Commission precedent of not delaying proceedings to await extrinsic actions, absent special needs of
efficiency and fairness; CLI-01-28, 54 NRC 400 (2001)
litigation burden as irreparable harm for purpose of postponing licensing proceeding; CLI-01-28, 54
NRC 400 (2001)
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-98-17, 48 NRC 123, 125 (1998)
obligation of petitioner to formulate a contention and provide information necessary to satisfy basis
requirement; LBP-01-21, 54 NRC 49 (2001)
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 333 (1999)
support required for contentions at admission stage; CLI-01-24, 54 NRC 358 (2001)
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 333 n.2 (1999)
after finding that contentions are inadmissible, Commission declines to decide whether a Board’s ruling
on standing was correct; CLI-01-17, 54 NRC 26 n.20 (2001)
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999)
litigability of attacks on generic NRC requirements or regulations or generalized grievances about NRC
policies; CLI-01-24, 54 NRC 364 (2001)
litigability of challenges to Commission rules or regulations; LBP-01-35, 54 NRC 422 (2001)
purpose of contention pleading rules; CLI-01-19, 54 NRC 133 n.19 (2001); CLI-01-24, 54 NRC
358-59 (2001)
I-9
LEGAL CITATIONS INDEX
CASES
showing necessary to trigger full evidentiary hearing on license renewal; CLI-01-17, 54 NRC 19
(2001)
specificity required at contention pleading stage; CLI-01-24, 54 NRC 362 (2001)
Duke Energy Corp.(Oconee Nuclear Sation Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334-35 (1999)
purposes of more stringent contention pleading rules; LBP-01-39, 54 NRC 505 (2001)
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 335 (1999)
rejection of contentions for failure to meet pleading requirements; LBP-01-35, 54 NRC 421-22 (2001)
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 337 (1999)
legitimate use of Staff requests for additional information in pleading contentions; LBP-01-35, 54 NRC
435, 438 (2001)
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 338 (1999)
bar on anticipatory contentions that use Staff studies as a pre-complaint discovery tool; CLI-01-17, 54
NRC 25 (2001)
obligation of person who invokes the right to participate in NRC proceedings; CLI-01-17, 54 NRC 26
(2001)
obligation of petitioners to examine application and publicly available documents to uncover
information that could serve as a foundation for a contention; CLI-01-17, 54 NRC 25 (2001)
particularity required in supporting documents for contentions; CLI-01-24, 54 NRC 363 (2001)
purpose of stringent pleading requirements for contentions; LBP-01-35, 54 NRC 422 (2001)
use of Staff requests for additional information to support contentions; LBP-01-21, 54 NRC 63 (2001)
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 341-42 (1999)
pleading requirements for contention at admission stage; LBP-01-21, 54 NRC 49 (2001)
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 342 (1999)
methods for complying with contention pleading requirements; LBP-01-35, 54 NRC 445 (2001)
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 343-44 (1999)
litigability of issues related to onsite storage of spent fuel in license renewal proceeding; CLI-01-17,
54 NRC 21 (2001)
Duke Energy Corp.(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 388 (1999)
specificity requirement for contentions at admission stage; CLI-01-24, 54 NRC 359 (2001)
Duke Power Co.(Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 468 (1982),vacated
in part on other grounds,CLI-83-19, 17 NRC 1041 (1983)
obligation of intervention petitioner to examine publicly available, facility-specific documents that could
serve as foundation for its contentions; LBP-01-21, 54 NRC 48 (2001)
Duke Power Co.(Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790 (1985)
notice of hearing or referral order as determinants of scope of licensing proceedings; LBP-01-35, 54
NRC 418, 422 (2001)
Duke Power Co.(Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1048 (1983)
obligation of person who invokes the right to participate in NRC proceedings; CLI-01-17, 54 NRC 26
(2001)
Duke Power Co.(Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1049 (1983)
view of contention contesting applicant’s environmental report as challenge to Staff draft environmental
impact statement; LBP-01-22, 54 NRC 160 (2001)
Energy Fuels Nuclear Inc.(White Mesa Uranium Mill), LBP-97-10, 45 NRC 429 (1997)
showing necessary to demonstrate that a claimed violation of law creates a presumption of standing;
CLI-01-18, 54 NRC 30 (2001)
Energy Fuels Nuclear Inc.(White Mesa Uranium Mill), LBP-97-10, 45 NRC 429, 431 (1997)
presumption of standing where there is a law preventing a particular material from being stored
pursuant to a license amendment; CLI-01-18, 54 NRC 31 (2001)
Envirocare of Utah v. NRC,194 F.3d 72 (D.C. Cir. 1999)
economic interests of employees as basis for standing to intervene; CLI-01-23, 54 NRC 276 (2001);
DD-01-3, 54 NRC 310 (2001)
Exxon Nuclear Co.(Nuclear Fuel Recovery and Recycling Center), LBP-77-59, 6 NRC 518, 519-20 (1977)
speculative nature of claimed injury as basis for denial of standing; LBP-01-35, 54 NRC 420 (2001)
I-10
LEGAL CITATIONS INDEX
CASES
FDA v. Brown & Williams Tobacco Corp.,529 U.S. 120, 133 (2000)
deference given to interpretation of statute by agency charged with its administration; DD-01-3, 54
NRC 321 n.38 (2001)
FDA v. Brown and Williams Tobacco Co.,529 U.S. 120, 157 (2000)
agency authority to reevaluate its interpretations of regulatory guides; DD-01-3, 54 NRC 324 (2001);
DD-01-3, 54 NRC (2001)
Florida Power & Light Co.(Turkey Point Nuclear Generating Plant, Units 3 and 4), 4 AEC 9, 13 (1967),
aff’d sub nom. Siegel v. AEC,400 F.2d 778 (D.C. Cir. 1968)
basis for Commission exclusion from licensing consideration of need for applicants to provide special
design features or measures to protect against enemy attacks and destructive acts; LBP-01-37, 54
NRC 486 (2001)
Florida Power & Light Co.(Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3,
6-13 (2001)
scope of operating license renewal proceeding; CLI-01-20, 54 NRC 212 (2001); CLI-01-27, 54 NRC
391 (2001)
Florida Power & Light Co.(Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3,
15 (2001)
responsibility for licensing board misinterpretation or misapprehension of contentions; LBP-01-35, 54
NRC 448 (2001)
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,528 U.S. 167 (2000)
speculation about accidents along feed material’s transport routes as basis for standing to intervene in
materials license amendment proceeding; CLI-01-21, 54 NRC 253 (2001)
Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC
111, 115 (1995)
authorization by individual members necessary to establish standing of organizations to intervene;
LBP-01-35, 54 NRC 413 (2001)
judicial concepts of standing applied in NRC proceedings; LBP-01-21, 54 NRC 43-44 (2001)
licensing board obligation, in determining standing, to construe intervention petition in light most
favorable to petitioner; LBP-01-35, 54 NRC 414 (2001)
showing necessary to establish injury-in-fact; CLI-01-23, 54 NRC 272 (2001); DD-01-3, 54 NRC 308
(2001)
showing necessary for an organization to establish standing; LBP-01-21, 54 NRC 44 (2001);
LBP-01-35, 54 NRC 413 (2001)
Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC
111, 115-17 (1995)
standing to intervene on Part 76 matters; CLI-01-23, 54 NRC 272 (2001); DD-01-3, 54 NRC 308
(2001)
Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 116 (1995)
weight given by Commission to presiding officer’s determination regarding standing; CLI-01-18, 54
NRC 31 (2001); CLI-01-21, 54 NRC 252 (2001)
Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC
111, 117-18 (1995)
basis and specificity requirements for admission of contentions; LBP-01-21, 54 NRC 88 (2001)
Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC
111, 120 (1995)
standard for litigation of management character or integrity; CLI-01-24, 54 NRC 366 (2001)
Georgia Power Co.(Vogtle Electric Generating Plant, Units 1 and 2), CLI-93-16, 38 NRC 25, 32 (1993)
scope of litigable issues in operating license amendment proceeding; CLI-01-24, 54 NRC 366 (2001)
Georgia Power Co.(Vogtle Electric Generating Plant, Units 1 and 2), CLI-93-16, 38 NRC 25, 36 n.22
(1993)
standard for litigation of management character or integrity; CLI-01-24, 54 NRC 366 (2001)
Georgia Power Co.(Vogtle Electric Generating Plant, Units 1 and 2), CLI-95-9, 41 NRC 404, 405 (1995)
stay of proceedings pending completion of OI investigation; LBP-01-29, 54 NRC 228 (2001)
I-11
LEGAL CITATIONS INDEX
CASES
Georgia Power Co.(Vogtle Electric Generating Plant, Units 1 and 2), LBP-94-31, 40 NRC 137, 140 (1994)
proper support for motions for reconsideration; LBP-01-38, 54 NRC 493 (2001)
GPU Nuclear, Inc.(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 204 n.6 (2000)
rejection of issue on appeal as insufficiently developed; CLI-01-27, 54 NRC 389 n.2 (2001)
GPU Nuclear, Inc.(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 205 (2000)
showing necessary to demonstrate materiality of shortfall in revenue predictions to financial
qualifications for license transfer; CLI-01-19, 54 NRC 139 (2001)
GPU Nuclear, Inc.(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 207 (2000)
pleading requirements for issues in license transfer proceeding; CLI-01-19, 54 NRC 134 (2001)
GPU Nuclear, Inc.(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 207-08 (2000)
consideration of spent fuel storage issues in context of license transfer proceeding; CLI-01-19, 54 NRC
147 (2001)
GPU Nuclear, Inc.(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 213 (2000)
scope of environmental remediation issues that are litigable in license transfer proceeding; CLI-01-19,
54 NRC 145 (2001)
GPU Nuclear, Inc.(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 213-14 (2000)
litigability of safety and adequacy of storage or disposal of spent fuel in license transfer proceeding;
CLI-01-19, 54 NRC 147 (2001)
Greater Boston Television Corp. v. FCC,444 F.2d 841, 852 (D.C. Cir. 1971)
NRC authority to change its statutory interpretations by providing a reasoned analysis supporting its
new approach; DD-01-3, 54 NRC 324 n.48 (2001)
Gulf States Utilities Co.(River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 51 (1994)
limits on subject matter of contentions to scope of proceeding; LBP-01-35, 54 NRC 418 (2001)
Hatch v. FERC,654 F.2d 825, 834 (D.C. Cir. 1981)
NRC authority to change its statutory interpretations by providing a reasoned analysis supporting its
new approach; DD-01-3, 54 NRC 324 n.48 (2001)
Houston Lighting and Power Co.(Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC
542 (1980)
purposes of more stringent contention pleading rules; LBP-01-39, 54 NRC 505 (2001)
Houston Lighting and Power Co.(Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC
542, 552-53 (1980)
benefits of summary disposition; LBP-01-39, 54 NRC 510-11 (2001)
Hudson Riverkeeper Fund v. Atlantic Richfield Co.,138 F. Supp. 2d 482, 488-89 (S.D.N.Y. 2001)
grant of summary disposition when conflicting expert opinions are presented; LBP-01-39, 54 NRC 510
(2001)
Hughey v. JMS Development Corp.,78 F.3d 1523, 1529 (11th Cir. 1996)
avoidance of absurd, unjust, or unintended result in literal construction of statutes; DD-01-3, 54 NRC
321 n.36 (2001)
Hydro Resources, Inc.(2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-98-8, 47 NRC 314
(1998)
legal error as basis for interlocutory review; CLI-01-25, 54 NRC 373 (2001)
Hydro Resources, Inc.(2929 Coors Road, Suite 101, Albuquerque, NM 87120), LBP-98-5, 47 NRC 119,
121 n.1 (1998),interlocutory appeal dismissed,CLI-98-8, 47 NRC 314 (1998)
incorporation of petitioners’ hearing petition by reference in attempt to bypass page limitation;
CLI-01-19, 54 NRC 133 n.17 (2001)
Hydro Resources, Inc.(P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 34-35 (2001)
rejection of decision holding portions of proceeding in abeyance because of violation of case
management principles and burden placed on petitioners; CLI-01-26, 54 NRC 382 (2001)
Hydro Resources, Inc.(P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 38 (2001)
Commission obligation to achieve expeditious decisionmaking despite terrorist threats; CLI-01-27, 54
NRC 391 (2001)
Hydro Resources, Inc.(P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 39 (2001)
suspension of license transfer adjudication so that licensee can make market-driven business decisions;
CLI-01-27, 54 NRC 390 (2001)
I-12
LEGAL CITATIONS INDEX
CASES
Hydro Resources, Inc.(P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 40 (2001)
termination or postponement of license renewal adjudications as contravention of Commission interest
in regulatory finality and sound case management; CLI-01-27, 54 NRC 391 (2001)
Hydro Resources, Inc.(P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 46 (2001)
pleading requirements for appellate briefs; CLI-01-17, 54 NRC 15 (2001)
Hydro Resources, Inc.(P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 57-62 (2001)
need for environmental impact statement to consider cumulative effect of license extension together
with as-yet unfiled amendment permitting use of plutonium/MOX fuel; CLI-01-27, 54 NRC 392
(2001)
I-291 Why? Association v. Burns,372 F. Supp. 223, 253 (D. Conn. 1974),aff’d,517 F.2d 1077 (2d Cir.
1975)
NRC Staff responsibility to objectively consider reasonable alternatives to proposed action in draft
environmental impact statement; LBP-01-34, 54 NRC 302 (2001)
Independent Bankers Ass’n v. Board of Governors,516 F.2d 1206 (D.C. Cir. 1975)
support required for contentions at admission stage; LBP-01-21, 54 NRC 48 (2001)
International Uranium (USA) Corp.(Receipt of Material from Tonawanda, New York), LBP-98-21, 48 NRC
137, 142 n.7 (1998)
incorporation of petitioners’ hearing petition by reference in attempt to circumvent specificity
requirements; CLI-01-19, 54 NRC 133 n.18 (2001)
International Uranium (USA) Corp.(Request for Materials License Amendment), CLI-00-1, 51 NRC 9,
15-16 (2000)
definition of tailings from source material that is processed to extract uranium or thorium as 11e(2)
byproduct material; CLI-01-18, 54 NRC 31 (2001)
International Uranium (USA) Corp.(Request for Materials License Amendment) CLI-00-1, 51 NRC 9, 19
(2000)
agency authority to reevaluate its interpretations of regulatory guides; CLI-01-23, 54 NRC 280 n.37
(2001)
weight given to guidance documents in construing regulations; LBP-01-21, 54 NRC 60, 62 (2001);
LBP-01-25, 54 NRC 184 (2001)
weight given to regulatory guides; CLI-01-22, 54 NRC 264 (2001)
International Uranium (USA) Corp.(White Mesa Uranium Mill), CLI-98-6, 47 NRC 116, 118 (1998)
weight given, on appeal, to presiding officer’s standing determinations; CLI-01-18, 54 NRC 31 (2001);
CLI-01-21, 54 NRC 252 (2001)
International Uranium (USA) Corp.(White Mesa Uranium Mill), CLI-01-18, 54 NRC 27 (2001)
scope of litigable issues in materials license amendment proceeding limited to those that establish a
distinct new harm or threat apart from activities already licensed; CLI-01-21, 54 NRC 251 (2001)
International Uranium (USA) Corp.(White Mesa Uranium Mill), CLI-01-18, 54 NRC 27, 30 (2001)
injury-in-fact and redressability showing necessary to demonstrate standing in NRC proceedings;
LBP-01-35, 54 NRC 413 (2001)
International Uranium (USA) Corp.(White Mesa Uranium Mill), CLI-01-18, 54 NRC 27, 31-32 (2001)
speculation about accidents along feed material’s transport routes as basis for standing to intervene in
materials license amendment proceeding; CLI-01-21, 54 NRC 253 (2001)
Kannankeril v. Terminix International,128 F.3d 802, 807 (3d Cir. 1997)
grant of summary disposition when conflicting expert opinions are presented; LBP-01-39, 54 NRC 510
(2001)
Kansas Gas and Electric Co.(Wolf Creek Generating Station, Unit 1), CLI-99-19, 49 NRC 441 (1999)
precedential effect of draft standard review plan; CLI-01-23, 54 NRC 279-80 (2001); DD-01-3, 54
NRC 323-24 (2001)
Kansas Gas and Electric Co.(Wolf Creek Generating Station, Unit 1), CLI-99-19, 49 NRC 441, 460 (1999)
legitimacy of Commission interpretation of its regulatory guidance that departs from prior agency
views; DD-01-3, 54 NRC 324 (2001)
Kelley v. Selin,42 F.3d 1501, 1508 (6th Cir. 1995)
showing necessary to establish standing to intervene; LBP-01-21, 54 NRC 44 (2001)
I-13
LEGAL CITATIONS INDEX
CASES
Kelley v. Selin,42 F.3d 1501, 1511 (6th Cir.),cert. denied,515 U.S. 1159 (1995)
purpose of Commission reliance on its rulemaking authority to determine generic issues; CLI-01-17, 54
NRC 14-15 (2001)
Kelley v. Selin,42 F.3d 1501, 1512 (6th Cir.),cert. denied,515 U.S. 1159 (1995)
longstanding Commission practice to address specific environmental or safety issues generically through
rulemaking; CLI-01-17, 54 NRC 14 (2001)
Kelley v. Selin,42 F.3d 1501, 1516 (6th Cir.),cert. denied,515 U.S. 1159 (1995)
NRC discretion to determine information necessary to support factual findings of the agency during the
licensing process; CLI-01-17, 54 NRC 13 (2001)
Kleppe v. Sierra Club,427 U.S. 390, 410 (1976)
need for environmental impact statement to consider cumulative effect of license extension together
with as-yet unfiled amendment permitting use of plutonium/MOX fuel; CLI-01-27, 54 NRC 392
(2001)
Kumho Tire Co. v. Carmichael,526 U.S. 136, 151-52 (1999)
standards for acceptance of expert testimony; LBP-01-39, 54 NRC 510 n.19 (2001)
Limerick Ecology Action v. NRC,869 F.2d 719, 729-31 (3d Cir. 1989)
effect of Commission’s AEA review under Part 54 on NEPA review; CLI-01-17, 54 NRC 13 (2001)
Limerick Ecology Action, Inc. v. NRC,869 F.2d 719, 739 (3d Cir. 1989)
need to analyze environmental impacts of remote and speculative initiating events for fuel fabrication
facility; LBP-01-35, 54 NRC 446 (2001)
Limerick Ecology Action, Inc. v. NRC,869 F.2d 719, 743-44 (3d Cir. 1989)
need to consider sabotage risk in environmental impact statement if uncertainty in current risk
assessment techniques does not allow meaningful risk assessment; LBP-01-37, 54 NRC 487 (2001)
Long Island Lighting Co.(Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 851 (1973)
need to consider sabotage risk in environmental impact statement if uncertainty in current risk
assessment techniques does not allow meaningful risk assessment; LBP-01-37, 54 NRC 487 (2001)
NEPA requirement for assessment of environmental impacts of terrorism; LBP-01-35, 54 NRC 445
(2001)
Long Island Lighting Co.(Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 135 (1987)
effect on basic structure of ongoing adjudication of admission of important or novel issue for purpose
of interlocutory appeal; CLI-01-25, 54 NRC 374 n.13 (2001)
Long Island Lighting Co.(Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 138-39
(1987)
litigation burden as irreparable harm for purpose of interlocutory review; CLI-01-25, 54 NRC 374 n.14
(2001)
Long Island Lighting Co.(Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275, 288 (1988),
review declined,CLI-88-11, 28 NRC 603 (1988)
construction of regulation in absence of any specific definition in a rule; LBP-01-25, 54 NRC 184
(2001)
interpretation of regulations by looking at plain meaning of language of the provision in question;
LBP-01-21, 54 NRC 59, 60 (2001)
Long Island Lighting Co.(Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275, 290 (1988),
review declined,CLI-88-11, 28 NRC 603 (1988)
weight given to guidance documents in construing regulations; LBP-01-21, 54 NRC 47, 60, 62 (2001);
LBP-01-25, 54 NRC 184, 192, 196 (2001)
weight given to guidance documents that assist in compliance with applicable regulations; CLI-01-22,
54 NRC 264 (2001)
Long Island Lighting Co.(Shoreham Nuclear Power Station, Unit 1), CLI-87-12, 26 NRC 383, 395 (1987)
litigability of challenges to Commission rules or regulations; LBP-01-35, 54 NRC 422 (2001)
Louisiana Energy Services, L.P.(Claiborne Enrichment Center), CLI-97-2, 45 NRC 3, 4 & n.1 (1997)
proper support for motions for reconsideration; LBP-01-38, 54 NRC 493 (2001)
Louisiana Energy Services, L.P.(Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 84 (1998)
view of contention contesting applicant’s environmental report as challenge to Staff draft environmental
I-14
LEGAL CITATIONS INDEX
CASES
impact statement; LBP-01-22, 54 NRC 160 (2001); LBP-01-23, 54 NRC 172 n.3 (2001);
LBP-01-26, 54 NRC 205 (2001)
Louisiana Power and Light Co.(Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 55-56
(1985)
Staff performance as subject of contentions, litigability of; LBP-01-35, 54 NRC 433 (2001)
Metropolitan Edison Co.(Three Mile Island Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 1299
(1982) (rev’d in part on other grounds,CLI-83-22, 18 NRC 299 (1983)
litigability of challenges to Staff regulatory guidance documents; DD-01-3, 54 NRC 324 n.47 (2001)
Metropolitan Edison Co.(Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 330 (1983)
Commission consideration of petitions by entities who do not have formal party status; CLI-01-28, 54
NRC 398 (2001)
Metropolitan Edison Co.(Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 332 (1983)
injury-in-fact and zone-of-interests tests for standing to intervene on Part 76 certification decisions;
CLI-01-23, 54 NRC 272 (2001); DD-01-3, 54 NRC 308 (2001)
Metropolitan Edison Co.(Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 333 (1983)
generalized grievance as basis for standing to intervene, acceptability of; CLI-01-23, 54 NRC 272, 276
(2001); DD-01-3, 54 NRC 308 (2001)
Metropolitan Edison Co.(Three Mile Island Nuclear Station, Unit 2), ALAB-692, 16 NRC 921 (1982)
credibility of aircraft crash hazards for independent spent fuel storage installations; CLI-01-22, 54 NRC
259 n.10 (2001)
Minnesota v. NRC,602 F.2d 412 (D.C. Cir. 1979)
longstanding Commission practice to address specific environmental or safety issues generically through
rulemaking; CLI-01-17, 54 NRC 14 (2001)
Mississippi Power and Light Co.(Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426
(1973)
merits determinations at contention admission stage; LBP-01-35, 54 NRC 422 (2001)
Mullins Coal Co. v. Director, OWCP,484 U.S. 135, 158 n.30 (1987)
distinction among factual levels at which experts may disagree; LBP-01-39, 54 NRC 510 (2001)
National Credit Union Administration v. First National Bank,522 U.S. 479, 492 (1998)
method for discerning whether an interest is within the zone of interests of a particular statute;
CLI-01-23, 54 NRC 272-73 (2001)
National Credit Union Administration v. First National Bank,522 U.S. 479, 494 n.7 (1998)
protection of employment interests under Atomic Energy Act §193(f); CLI-01-23, 54 NRC 275 (2001);
DD-01-3, 54 NRC 310 n.9 (2001)
National Parks and Conservation Association v. Board of State Lands,869 P.2d 909, 920 (Utah 1993)
consideration of rail spur alignment that crosses state school trust land; LBP-01-34, 54 NRC 301
(2001)
National Whistleblower Center,208 F.3d 256 (D.C. Cir. 2001)
bar on anticipatory contentions that use Staff studies as a pre-complaint discovery tool; CLI-01-17, 54
NRC 25 (2001)
Niagara Mohawk Power Corp.(Nine Mile Point Nuclear Station, Units 1 and 2), CLI-99-30, 50 NRC 333
(1999)
grant of stay while co-owners decide whether to exercise right of first refusal but denial while public
utility commission proceedings pending; CLI-01-26, 54 NRC 382 n.21 (2001)
Niagara Mohawk Power Corp.(Nine Mile Point Nuclear Station, Units 1 and 2), CLI-99-30, 50 NRC 333,
343 (1999)
suspension of license transfer adjudication pending conclusion of public service commission proceeding;
CLI-01-27, 54 NRC 390 n.9 (2001)
Norfolk Southern Corp. v. Oberly,632 F. Supp. 1225, 1243 (D. Del. 1986),aff’d on other grounds,822
F.2d 388 (3d Cir. 1987)
grant of summary disposition when conflicting expert opinions are presented; LBP-01-39, 54 NRC 510
(2001)
I-15
LEGAL CITATIONS INDEX
CASES
North Atlantic Energy Service Corp.(Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 217 (1999)
showing necessary to demonstrate adequacy of decommissioning funding; CLI-01-19, 54 NRC 142
(2001)
North Atlantic Energy Service Corp.(Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 217 n.8 (1999)
litigability of challenges to generic decisions made in rulemakings; CLI-01-17, 54 NRC 16 (2001);
CLI-01-19, 54 NRC 143, 144 n.34 (2001)
litigability of generic NRC requirements or regulations; LBP-01-39, 54 NRC 506 (2001)
North Atlantic Energy Service Corp.(Seabrook Station, Unit 1), CLI-99-27, 50 NRC 257, 263 n.5 (1999)
generalized grievance as basis for standing to intervene, acceptability of; CLI-01-23, 54 NRC 272
(2001); DD-01-3, 54 NRC 309 (2001)
Northern States Power Co.(Pathfinder Atomic Plant) LBP-90-3, 31 NRC 40 (1990)
increase in traffic of low-level radioactive materials as injury-in-fact traceable to operating license
amendment for purpose of obtaining standing to intervene; CLI-01-18, 54 NRC 32 (2001)
Northern States Power Co.(Pathfinder Atomic Plant), LBP-90-3, 31 NRC 40, 42-43 (1990)
absence of link between proposed action and injury claimed, as cause for denial of standing;
LBP-01-35, 54 NRC 419-20 (2001)
Nuclear Engineering Co.(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC
1, 5 (1980)
proper support for motions for reconsideration; LBP-01-38, 54 NRC 493 (2001)
Oil, Chemical & Atomic Workers v. DOE,141 F. Supp.2d 1 (D.D.C. 2001)
prior participation in Freedom of Information Act litigation involving gaseous diffusion plants as basis
for standing to intervene under a different statute; CLI-01-23, 54 NRC 276 n.21 (2001)
Owen v. Magaw,122 F.3d 1350, 1354 (10th Cir. 1997)
use of aids in statutory construction of meaning of words, even when words appear clear on superficial
examination; CLI-01-23, 54 NRC 279 n.32 (2001)
Pacific Gas and Electric Co.(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC
777, 784-85 (1983)
temporary delay in licensing following serious events; CLI-01-26, 54 NRC 381-82 (2001)
Pacific Gas and Electric Co.(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC
777, 807 (1983)
Staff performance as subject of contentions, litigability of; LBP-01-35, 54 NRC 433 (2001)
Perry v. Commerce Loan Co.,383 U.S. 392, 400, 86 S. Ct. 852, 857 (1966)
avoidance of absurd, unjust, or unintended result in literal construction of statutes; DD-01-3, 54 NRC
321 n.36 (2001)
Petition To Suspend All Operating Licenses for Pressurized Water Reactors,DD-81-8, 13 NRC 767 (1981)
rejection of petition requesting shutdown of all similar reactors following Three Mile Island accident;
CLI-01-26, 54 NRC 382 n.19 (2001)
Philadelphia Electric Co.(Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 698-99
(1985),aff’d in part,CLI-86-5, 23 NRC 125 (1986),aff’d in part and rev’d on other grounds sub nom.
Limerick Ecology Action, Inc. v. NRC,869 F.2d 719 (3d Cir. 1989)
need to analyze terrorist-caused accidents in environmental report for fuel fabrication facility;
LBP-01-35, 54 NRC 446 (2001)
Philadelphia Electric Co.(Limerick Generating Station, Units 1 and 2), LBP-83-25, 17 NRC 681, 687,
rev’d and remanded on other grounds,ALAB-726, 17 NRC 755 (1983)
proper support for motions for reconsideration; LBP-01-38, 54 NRC 493 (2001)
Philadelphia Electric Co.(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13,
20-21 (1974)
litigability of generic NRC requirements or regulations; LBP-01-39, 54 NRC 506 (2001)
Portland General Electric Co.(Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979)
conditions or limitations that should be included in technical specifications; CLI-01-24, 54 NRC 361
(2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 290 (2000)
special-circumstances standard for rule waiver; CLI-01-19, 54 NRC 130 (2001)
I-16
LEGAL CITATIONS INDEX
CASES
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 290-91 (2000)
applicability of Subpart M procedures to all license transfer issues; CLI-01-19, 54 NRC 130 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 291 (2000)
proscription on motions by parties for special procedures or formal hearings on license transfers;
CLI-01-19, 54 NRC 130 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 303 (2000)
need for applicants to provide funding for decommissioning to Greenfield condition; CLI-01-19, 54
NRC 145 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 309 (2000)
admissibility of issues not linked directly to license transfers at issue in this proceeding; CLI-01-19, 54
NRC 141 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 309-10 (2000)
scope of challenges to technical qualifications of plant employees in license transfer proceeding;
CLI-01-19, 54 NRC 141 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 310-11 (2000)
scope of operational issues that are litigable in license transfer proceedings; CLI-01-19, 54 NRC 142
(2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 311 (2000)
scope of environmental remediation issues that are litigable in license transfer proceeding; CLI-01-19,
54 NRC 145 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 312 (2000)
specificity required of assertions that serve as basis for adjudication; CLI-01-19, 54 NRC 140 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 315 (2000)
unsupported hypothetical theories or projections as basis for invocation of hearing process; CLI-01-19,
54 NRC 141 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 317 (2000)
consideration of impact of license transfers on need for changes to emergency evacuation plans;
CLI-01-19, 54 NRC 146 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 318 (2000)
admissibility of request for independent evaluation of reactor unit before license transfer; CLI-01-19,
54 NRC 142 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-00-22, 52 NRC 266, 319 (2000)
applicability of late-filing standards to new issues or arguments or assertions related to admitted issues;
CLI-01-19, 54 NRC 132 n.13 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-01-14, 53 NRC 488, 510 (2001)
definition of capacity factor; CLI-01-19, 54 NRC 135 n.24 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-01-14, 53 NRC 488, 518-19 (2001)
capacity-factor considerations in determining financial qualifications for license transfer; CLI-01-19, 54
NRC 136 (2001)
I-17
LEGAL CITATIONS INDEX
CASES
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-01-14, 53 NRC 488, 520-21 (2001)
relevance of applicant’s operating experience in determining financial qualifications for license transfer;
CLI-01-19, 54 NRC 136 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-01-14, 53 NRC 488, 540 (2001)
germaneness of creditworthiness of guarantor to showing of financial qualifications for license transfer;
CLI-01-19, 54 NRC 139 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-01-14, 53 NRC 488, 552-53 (2001)
post-regulatory authority of Commission to ensure that previous owner satisfies decommissioning and
site remediation requirements; CLI-01-19, 54 NRC 148 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-01-14, 53 NRC 488, 554-55 (2001)
extent of Commission jurisdiction over unlicensed persons; CLI-01-19, 54 NRC 148 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-01-14, 53 NRC 488, 560-61 (2001)
authority of presiding officer to question any witness proffered by a party in a license transfer
proceeding; CLI-01-19, 54 NRC 151 (2001)
Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
LBP-00-34, 52 NRC 361, 363 (2000)
applicability of late-filing standards to further consideration of dismissed contention, should another
party seek to litigate it; CLI-01-19, 54 NRC 132 n.13 (2001)
entitlement of parties to submit statements of position and written testimony with supporting affidavits
on issues sponsored by other parties; CLI-01-19, 54 NRC 132 n.14 (2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-98-7, 47 NRC 307, 310
(1998)
criteria applied for review of certified or referred rulings; CLI-01-25, 54 NRC 372 (2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 30-31
(1998)
authorization by individual members necessary to establish standing of organizations to intervene;
LBP-01-35, 54 NRC 413 (2001)
germaneness of the interests that an organization seeks to protect to its purposes as prerequisite for
standing; LBP-01-35, 54 NRC 413-14 (2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-00-13, 52 NRC 23 (2000)
weight given to licensing board decisions about referral of novel rulings; CLI-01-25, 54 NRC 375
(2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 5 (2001)
legal error as basis for interlocutory review; CLI-01-25, 54 NRC 373 (2001)
NRC policy on interlocutory review; CLI-01-25, 54 NRC 372 (2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-12, 53 NRC 459 (2001)
weight given to licensing board decisions about referral of novel rulings; CLI-01-25, 54 NRC 375
(2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-12, 53 NRC 459, 466,
467 n.3 (2001)
Commission preference for licensing boards to develop a full record on fact-based issues before it
considers them in review; CLI-01-27, 54 NRC 392 (2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation) CLI-01-22, 54 NRC 255, 257 n.3
(2001)
abeyance of proceedings because of probable major changes in security and safeguards requirements at
nuclear power plants; CLI-01-27, 54 NRC 390 (2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376 (2001)
abeyance of proceedings pending Commission’s generic consideration of terrorism-related issues;
CLI-01-27, 54 NRC 389 (2001); CLI-01-28, 54 NRC 397 (2001)
I-18
LEGAL CITATIONS INDEX
CASES
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 380
(2001)
standard for suspension of proceedings; CLI-01-28, 54 NRC 399 (2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 381-83
(2001)
Commission precedent of not delaying proceedings to await extrinsic actions, absent special needs of
efficiency and fairness; CLI-01-28, 54 NRC 400 (2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 180-81
(1998)
particularity required of contentions at admission stage; LBP-01-21, 54 NRC 76 (2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 181
(1998)
pleading requirements for contention at admission stage; LBP-01-21, 54 NRC 49 (2001)
Private Fuel Storage, L.L.C.(Independent Spent Fuel Storage Installation), LBP-99-3, 49 NRC 40, 46-48,
aff’d,CLI-99-10, 49 NRC 318 (1999)
considerations in determining good cause for late filing of contention; LBP-01-39, 54 NRC 507 (2001)
Private Fuel Storage L.L.C.(Independent Spent Fuel Storage Installation), LBP-99-32, 50 NRC 155, 158
(1999)
burden on proponent of summary disposition motion; LBP-01-30, 54 NRC 235 (2001); LBP-01-39, 54
NRC 509 (2001)
Public Lands Council v. Babbit,167 F.3d 1287, 1302 (10th Cir. 1998)
NRC authority to change its statutory interpretations by providing a reasoned analysis supporting its
new approach; DD-01-3, 54 NRC 324 n.48 (2001)
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC
167, 170-71 (1976)
limits on subject matter of contentions to scope of proceeding; LBP-01-21, 54 NRC 49 (2001);
LBP-01-35, 54 NRC 418, 422 (2001)
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-731, 17 NRC 1073, 1074
(1983)
incorporation of other parties’ issues by reference; CLI-01-19, 54 NRC 132 n.15 (2001)
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-858, 25 NRC 17, 21-22
(1987)
litigation burden as irreparable harm for purpose of interlocutory review; CLI-01-25, 54 NRC 374 n.14
(2001)
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93 (1988)
proper use of motions to strike; LBP-01-39, 54 NRC 517 (2001)
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97
(1988)
examination of bases in construing contentions; LBP-01-23, 54 NRC 171 (2001); LBP-01-26, 54 NRC
207 (2001)
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-947, 33 NRC 299, 322 &
n.62 (1991)
speculation about accidents along feed material’s transport routes as basis for standing to intervene in
materials license amendment proceeding; CLI-01-21, 54 NRC 253 (2001)
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 516-17
(1977)
Commission authority to accept discretionary interlocutory review of novel issues at request of party
rather than licensing board; CLI-01-25, 54 NRC 374 (2001)
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-3, 29 NRC 234, 240-41
(1989),aff’d,ALAB-915, 29 NRC 427 (1989)
incorporation of petitioners’ hearing petition by reference in attempt to circumvent specificity
requirements; CLI-01-19, 54 NRC 133 n.18 (2001)
I-19
LEGAL CITATIONS INDEX
CASES
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-8, 29 NRC 399, 416-17
(1989)
litigability of challenges to Commission rules or regulations; LBP-01-35, 54 NRC 422 (2001)
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1656
(1982)
litigability of challenges to Commission rules or regulations; LBP-01-35, 54 NRC 422 (2001)
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86-22, 24 NRC 103, 106
(1986)
incorporation of other parties’ issues by reference; CLI-01-19, 54 NRC 132 n.15 (2001)
Quivira Mining Co.(Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, 48 NRC 1, 5-6 (1998)
injury-in-fact and redressability showing necessary to demonstrate standing in NRC proceedings;
LBP-01-35, 54 NRC 413 (2001)
judicial concepts of standing applied in NRC proceedings; LBP-01-21, 54 NRC 43, 44 (2001)
showing necessary to demonstrate standing in operating license amendment proceeding; CLI-01-24, 54
NRC 357 n.7 (2001)
showing necessary to establish standing in materials license amendment proceeding; CLI-01-21, 54
NRC 250 (2001)
Quivira Mining Co.(Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, 48 NRC 1, 8-17 (1998),
aff’d, Envirocare of Utah, Inc. v. NRC,194 F.3d 72 (D.C. Cir. 1999)
entity’s competitive interests as interest under AEA or NEPA for purpose of policing a competitor’s
compliance with licensing requirements; CLI-01-23, 54 NRC 276 n.19 (2001); DD-01-3, 54 NRC
310 n.9 (2001)
Rust v. Sullivan,500 U.S. 173, 186-87 (1991)
NRC authority to change its statutory interpretations by providing a reasoned analysis supporting its
new approach; DD-01-3, 54 NRC 324 n.48 (2001)
Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 NRC 47, 56
(1992)
loss of employment as interest protected by NEPA; CLI-01-23, 54 NRC 276 n.19 (2001); DD-01-3, 54
NRC 310 n.9 (2001)
Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 NRC 47,
59-61 (1992)
injury-in-fact showing necessary to establish organizational standing; CLI-01-21, 54 NRC 252 (2001)
Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135,
145-46 (1993)
need to consider speculative possibility of wilderness designation as alternative to proposed action
under NEPA; LBP-01-34, 54 NRC 300 (2001)
Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC 135,
147, 150 (1993)
Staff request for additional information as basis for contention, adequacy of; LBP-01-35, 54 NRC 472
(2001)
Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-94-2, 39 NRC 91, 94
(1994)
effect on basic structure of ongoing adjudication of admission of important or novel issue for purpose
of interlocutory appeal; CLI-01-25, 54 NRC 374 n.13 (2001)
Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200,
246 (1993)
basis and specificity requirements for admission of contentions; LBP-01-21, 54 NRC 89 (2001)
Sequoyah Fuels Corp.(Gore, Oklahoma Site Decommissioning), CLI-01-2, 53 NRC 9, 13 (2001)
injury-in-fact and redressability showing necessary to demonstrate standing in NRC proceedings;
LBP-01-35, 54 NRC 413 (2001)
showing necessary to demonstrate standing in a Subpart L materials licensing case; CLI-01-18, 54
NRC 30 (2001); CLI-01-21, 54 NRC 250 (2001)
Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-11, 40 NRC 55, 59 (1994)
NRC policy on interlocutory review; CLI-01-25, 54 NRC 372 (2001)
I-20
LEGAL CITATIONS INDEX
CASES
Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-11, 40 NRC 55, 61 (1994)
litigation burden as irreparable harm for purpose of interlocutory review; CLI-01-25, 54 NRC 374 n.14
(2001)
Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 74 (1994)
injury-in-fact showing of realistic threat of direct injury required to establish organizational standing to
intervene; CLI-01-21, 54 NRC 253 (2001)
Shieldalloy Metallurgical Corp.(Cambridge, Ohio Facility), CLI-99-12, 49 NRC 347, 354 & n.4 (1999)
need for individual’s authorization for representational standing to be in sworn affidavit form;
LBP-01-35, 54 NRC 415 n.8 (2001)
Siegel v. Atomic Energy Commission,400 F.2d 778, 780-84 (D.C. Cir. 1968)
practicality of having power reactors designed to protect against full range of modern weapons;
CLI-01-26, 54 NRC 379 (2001)
Siegel v. Atomic Energy Commission,400 F.2d 778, 783 (D.C. Cir. 1968)
scope of Commission discretion in determining how statutory objectives will be achieved; DD-01-3, 54
NRC 322 n.38 (2001)
Smiley v. Citibank,116 S. Ct. 1730, 1733 (1996)
deference given to interpretation of statute by agency charged with its administration; DD-01-3, 54
NRC 321 n.38 (2001)
Society Hill Towers Owners’ Association v. Rendell,210 F.3d 168, 180-82 (3d Cir. 2000)
need for environmental impact statement to consider cumulative effect of license extension together
with as-yet unfiled amendment permitting use of plutonium/MOX fuel; CLI-01-27, 54 NRC 392
(2001)
Southern California Edison Co.(San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-171, 7 AEC
37, 39 (1974)
postponement of adjudicatory matters where moving forward would clearly result in waste of
resources; CLI-01-26, 54 NRC 383 (2001)
Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18 (1998)
Commission obligation to achieve expeditious decisionmaking despite terrorist threats; CLI-01-26, 54
NRC 381 (2001)
management goals for NRC proceedings; LBP-01-39, 54 NRC 512 (2001)
NRC policy on expedition of Subpart K proceedings; LBP-01-29, 54 NRC 227 (2001)
Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 19 (1998)
Commission obligation to achieve expeditious decisionmaking despite terrorist threats; CLI-01-28, 54
NRC 400 (2001)
Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 20-21 (1998)
Commission position on use of summary disposition; LBP-01-39, 54 NRC 511 (2001)
Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 21 (1998)
standard for grant of extension of time for filing amended and supplemented petitions; LBP-01-31, 54
NRC (2001)
Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 21, 24 (1998)
discovery or evidentiary hearing on safety-related items before final Safety Evaluation Report is issued;
CLI-01-20, 54 NRC 215 (2001)
Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 22 (1998)
burden on proponents of contentions to meet pleading requirements; CLI-01-24, 54 NRC 363 n.10
(2001); LBP-01-21, 54 NRC 49 (2001); LBP-01-35, 54 NRC 422 (2001)
specificity requirement for contentions at admission stage; CLI-01-24, 54 NRC 359 (2001)
Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 23 (1998)
licensing board certification of novel issue to Commission unnecessary because intervenor has
opportunity to place the issue before the Commission on appeal; LBP-01-35, 54 NRC 447 (2001)
novel-issues standard for referral of rulings; CLI-01-25, 54 NRC 374 (2001)
Statement of Policy on Conduct of Adjudicatory Proceedings,CLI-98-12, 48 NRC 18, 24 (1998)
Commission obligation to achieve expeditious decisionmaking despite terrorist threats; CLI-01-27, 54
NRC 391 (2001)
I-21
LEGAL CITATIONS INDEX
CASES
Statement of Policy on Conduct of Licensing Proceedings,CLI-81-8, 13 NRC 452 (1981)
management goals for NRC proceedings; LBP-01-39, 54 NRC 512 (2001)
techniques for expeditious management of adjudicatory proceedings; CLI-01-20, 54 NRC 215 (2001)
Statement of Policy on Conduct of Licensing Proceedings,CLI-81-8, 13 NRC 452, 455 (1981)
Commission policy on settlement of licensing proceedings; LBP-01-27, 54 NRC 219 (2001)
Steel Co. v. Citizens for a Better Environment,523 U.S. 83 (1998)
showing necessary to demonstrate standing in operating license amendment proceeding; CLI-01-24, 54
NRC 357 n.7 (2001)
Steel Co. v. Citizens for a Better Environment,523 U.S. 83, 102-04 (1998)
showing necessary to establish standing to intervene; LBP-01-21, 54 NRC 44 (2001)
TAP Pharmaceuticals v. HHS,163 F.3d 199, 206, 208 (4th Cir. 1998)
satisfaction of zone-of-interests test if petitioners are more than merely incidential beneficiaries of a
statute; CLI-01-23, 54 NRC 275 n.17 (2001)
Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 and 2), LBP-76-10, 3 NRC 209, 216
(1976)
incorporation of petitioners’ hearing petition by reference in attempt to circumvent specificity
requirements; CLI-01-19, 54 NRC 133 n.18 (2001)
Texas Utilities Generating Co.(Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-714, 17 NRC
86, 93 (1983)
applicability of ‘‘case or controversy’’ clause in NRC jurisdiction; LBP-01-32, 54 NRC 287 n.2 (2001)
Train v. Colorado Public Interest Research Group, Inc.,426 U.S. 1, 10 (1976)
use of aids in statutory construction of meaning of words, even when words appear clear on superficial
examination; CLI-01-23, 54 NRC 279 n.32 (2001)
Train v. Colorado Public Interest Research Group, Inc.,426 U.S. 1, 24 (1976)
consideration of legislative intent when statute appears to depart from normal regulatory scheme;
CLI-01-23, 54 NRC 279 n.31 (2001)
Transnuclear, Inc.(Export of 93.15% Enriched Uranium), CLI-94-1, 39 NRC 1, 5 (1994)
injury-in-fact showing necessary to establish organizational standing; CLI-01-21, 54 NRC 252 (2001)
Union of Concerned Scientists v. NRC,920 F.2d 50, 55 (D.C. Cir. 1990)
standard for amendment of contentions; CLI-01-17, 54 NRC 25 (2001)
Union of Concerned Scientists v. NRC,920 F.2d 50, 56 (D.C. Cir. 1990)
bar on anticipatory contentions that use Staff studies as a pre-complaint discovery tool; CLI-01-17, 54
NRC 25 (2001)
U.S. Enrichment Corp.(Paducah, Kentucky, and Piketon, Ohio), CLI-96-12, 44 NRC 231, 236 (1996)
standing to intervene on Part 76 matters; CLI-01-23, 54 NRC 272 (2001); DD-01-3, 54 NRC 308
(2001)
United States Energy Research and Development Administration (Clinch River Breeder Reactor Plant)
CLI-76-13, 4 NRC 67, 75-76 (1976)
Commission authority to accept discretionary interlocutory review of novel issues at request of party
rather than licensing board; CLI-01-25, 54 NRC 374 (2001)
United States Department of Energy (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 421
(1982),rev’d and remanded per curiam on other grounds sub nom. Natural Resources Defense Council
v. NRC,695 F.2d 623 (D.C. Cir. 1982)
Commission preference for licensing boards to develop a full record on fact-based issues before the
Commission considers them in review; CLI-01-27, 54 NRC 392 (2001)
United States Department of Energy (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 424
(1982),rev’d and remanded per curiam on other grounds sub nom. Natural Resources Defense Council
v. NRC,695 F.2d 623 (D.C. Cir. 1982)
need for environmental impact statement to consider cumulative effect of license extension together
with as-yet unfiled amendment permitting use of plutonium/MOX fuel; CLI-01-27, 54 NRC 392
(2001)
United States v. American Trucking Association,310 U.S. 534, 542-44 (1940)
consideration of legislative intent when statute appears to depart from normal regulatory scheme;
CLI-01-23, 54 NRC 279 n.31 (2001); DD-01-3, 54 NRC 321 n.36 (2001)
I-22
LEGAL CITATIONS INDEX
CASES
United States v. Mead,U.S., 121 S. Ct. 2164, 2001 WL 672258 (June 18, 2001)
precedential effect of draft standard review plan; CLI-01-23, 54 NRC 279-80 (2001)
United States v. Mendoza,565 F.2d 1285, 1288 (5th Cir. 1978)
avoidance of absurd, unjust, or unintended result in literal construction of statutes; DD-01-3, 54 NRC
321 n.36 (2001)
Vermont Yankee Nuclear Power Corp.(Vermont Yankee Nuclear Power Station), CLI-90-4, 31 NRC 333,
334-35 (1990)
need to analyze environmental impacts of remote and speculative initiating events for fuel fabrication
facility; LBP-01-35, 54 NRC 446 (2001)
Vermont Yankee Nuclear Power Corp. and Amergen Vermont, LLC (Vermont Yankee Nuclear Power
Station), CLI-00-20, 52 NRC 151, 162 (2000)
use of Subpart G procedures for license transfer proceedings; CLI-01-19, 54 NRC 130 (2001)
Vermont Yankee Nuclear Power Corp. and Amergen Vermont, LLC (Vermont Yankee Nuclear Power
Station), CLI-00-20, 52 NRC 151, 169 (2000)
scope of environmental remediation issues that are litigable in license transfer proceeding; CLI-01-19,
54 NRC 145 (2001)
Vermont Yankee Nuclear Power Corp. and Amergen Vermont, LLC (Vermont Yankee Nuclear Power
Station), CLI-00-20, 52 NRC 151, 171 (2000)
admissibility of request for independent evaluation of reactor unit before license transfer; CLI-01-19,
54 NRC 142 (2001)
consideration of spent fuel storage issues in context of license transfer proceeding; CLI-01-19, 54 NRC
147 (2001)
Vermont Yankee Nuclear Power Corp. and Amergen Vermont, LLC (Vermont Yankee Nuclear Power
Station), CLI-00-20, 52 NRC 151, 173-74 (2000)
litigability of challenge to sufficiency of Subpart M regulations ‘‘to evaluate adequately the effects of
industry consolidation’’; CLI-01-27, 54 NRC 390 n.8 (2001)
refusal to suspend license transfer proceedings until Commission examines effects of industry
consolidation; CLI-01-26, 54 NRC 382 n.21 (2001)
Vermont Yankee Nuclear Power Corp. and Amergen Vermont, LLC (Vermont Yankee Nuclear Power
Station), CLI-00-20, 52 NRC 151, 177 (2000)
showing necessary to demonstrate materiality of shortfall in revenue predictions to financial
qualifications for license transfer; CLI-01-19, 54 NRC 139 (2001)
Vermont Yankee Nuclear Power Corp. v. NRC,435 U.S. 519 (1978)
support required for contentions at admission stage; LBP-01-21, 54 NRC 48 (2001)
Virginia Electric and Power Co.(North Anna Power Station, Units 1, 2, 3, and 4), ALAB-256, 1 NRC 10,
12-13 (1975)
seismic analysis considerations for independent spent fuel storage installations; LBP-01-39, 54 NRC
500 (2001)
Warth v. Seldin,422 U.S. 490, 508 (1975)
generalized grievance as basis for standing to intervene, acceptability of; CLI-01-23, 54 NRC 272
(2001); DD-01-3, 54 NRC 309 (2001)
West v. Kerr-McGee Corp.,765 F.2d 526, 530 (5th Cir. 1985)
use of a statute’s legislative history for guidance in interpreting latent ambiguities; DD-01-3, 54 NRC
321 n.37 (2001)
Wilderness Society v. Griles,824 F.2d 4, 11 (D.C. Cir. 1987)
types of injury applicable to standing determinations; LBP-01-21, 54 NRC 44 (2001)
Wisconsin Electric Power Co.(Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 339
(1983)
limits on subject matter of contentions to scope of proceeding; LBP-01-35, 54 NRC 422 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 9 (1996)
admissibility of contention calling for relief that would be a mere formalistic redraft of a plan;
LBP-01-21, 54 NRC 65 (2001)
admissibility of ‘‘cost estimate’’ type of contentions in license termination plan proceeding; LBP-01-21,
54 NRC 85, 86 (2001)
I-23
LEGAL CITATIONS INDEX
CASES
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 247-48 (1996)
injury-in-fact based on minor exposure to radiation, even within regulatory limits, as basis for standing
to intervene; LBP-01-35, 54 NRC 417 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 248 n.7 (1996)
rationale for toughening contention pleading rule; LBP-01-39, 54 NRC 506 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 248-49 (1996)
particularity required of contentions at admission stage; LBP-01-21, 54 NRC 76, 77 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 249 (1996)
admission of contention because it provides sufficient information to show a genuine dispute;
LBP-01-21, 54 NRC 69 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 255 & n.15 (1996)
use of late-filed contentions to address terrorism-related modification in safety, environmental, and
safeguards rules; CLI-01-27, 54 NRC 391 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 259-60 (1996)
pleading requirements for demonstrating materiality of a contention; LBP-01-21, 54 NRC 85, 86 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185 (1998)
licensing board authority to determine what a licensee may do after unrestricted release of a site;
LBP-01-21, 54 NRC 104 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 194 (1998)
interest requirement for intervention; LBP-01-21, 54 NRC 43 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998)
judicial concepts of standing applied in NRC proceedings; LBP-01-21, 54 NRC 43, 44 (2001)
showing necessary for an organization to establish standing; LBP-01-21, 54 NRC 44 (2001);
LBP-01-35, 54 NRC 413 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195-96 (1998)
zone of interests test for standing to intervene; LBP-01-21, 54 NRC 44 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 196 (1998)
obligation of a licensee who is decommissioning a plant to file a license termination plan; LBP-01-21,
54 NRC 45 (2001)
right of licensee to file a license termination plan either concurrently with or prior to license
termination request; LBP-01-21, 54 NRC 45 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 201, 203-05 (1998)
litigability of spent fuel management in license termination plan proceeding; LBP-01-21, 54 NRC 46
(2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 204 n.7 (1998)
limit on contentions to issues that are germane to application pending before the board; LBP-01-21, 54
NRC 49 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 201, 204-05 (1998)
scope of a license termination plan proceeding; LBP-01-21, 54 NRC 46 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 205 (1998)
importance of a license termination plan; LBP-01-21, 54 NRC 46 (2001)
litigability of spent fuel management issues in license termination plan proceeding; LBP-01-21, 54
NRC 53 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 206 n.9 (1998)
Commission determination necessary for license termination; LBP-01-21, 54 NRC 46 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 206-07 (1998)
important future consequence of license termination plan approval process; LBP-01-21, 54 NRC 46
(2001)
litigability of adequacy of survey methodology to demonstrate that site will be brought to a condition
suitable for license termination; LBP-01-21, 54 NRC 56 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 208 (1998)
affidavit support from members of organization seeking standing in license amendment proceeding;
LBP-01-21, 54 NRC 44 (2001)
purpose of license termination plan approval process; LBP-01-21, 54 NRC 46 (2001)
I-24
LEGAL CITATIONS INDEX
CASES
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 212 (1998)
licensing procedure for operating an independent spent fuel storage installation after a Part 50 license
has been terminated; LBP-01-21, 54 NRC 53 n.3 (2001)
Yankee Atomic Electric Co.(Yankee Nuclear Power Station), LBP-99-14, 49 NRC 238, 252 (1999)
litigability of instrumentation issues in license termination plan proceeding; LBP-01-21, 54 NRC 71
(2001)
I-25
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. 2.202
Commission authority to make modifications of regulations applicable to licensees and applicants;
CLI-01-28, 54 NRC 400 (2001)
forum for litigation of challenges to NRC regulations; DD-01-4, 54 NRC 337 (2001)
10 C.F.R. 2.206
conflict between regulations and licensee fitness-for-duty policies, request for action on; DD-01-5, 54
NRC 341-47 (2001)
forum for addressing operational problems not related to license transfer; CLI-01-19, 54 NRC 141 (2001)
forum for litigation of current safety problems; CLI-01-17, 54 NRC 23, 24 n.18 (2001)
petition from show-cause proceeding as support for issues in license transfer proceeding; CLI-01-19, 54
NRC 134 (2001)
request for action on management performance deficiencies and apparent material misrepresentations by
licensee; DD-01-4, 54 NRC 327-39 (2001)
request for suspension of license transfer proceeding pending completion of consideration of request for
enforcement action; CLI-01-19, 54 NRC 128 n.5 (2001)
10 C.F.R. 2.206(c)
finality of Director’s Decision for purpose of review; DD-01-4, 54 NRC 339 (2001); DD-01-5, 54 NRC
346-47 (2001)
10 C.F.R. Part 2, Subpart G
pleading requirements for contentions in Subpart L proceedings; LBP-01-35, 54 NRC 411 (2001)
10 C.F.R. 2.710
deadlines for response to filings served by expedited means; CLI-01-20, 54 NRC 216 (2001)
10 C.F.R. 2.713(b)
obligation for attorney or representative for each party to file notice of appearance; CLI-01-19, 54 NRC
150 (2001)
10 C.F.R. 2.714
burden of proof and of going forward on contentions at admission stage; LBP-01-21, 54 NRC 77 (2001)
interest requirement for intervention; LBP-01-21, 54 NRC 43, 44 (2001)
pleading requirements for contentions in operating license amendment proceeding; LBP-01-21, 54 NRC
45, 47, 75 (2001)
referral of intervention petitions and hearing requests to licensing board for ruling and conduct of
proceeding; CLI-01-20, 54 NRC 212 (2001)
10 C.F.R. 2.714(a)
criteria for consideration of late-filed contentions based on previously unavailable documents; LBP-01-31,
54 NRC 246 (2001)
date on document as evidence of good cause for not filing document with original contention;
LBP-01-21, 54 NRC 96 n.14 (2001)
flexibility to deal with new developments during pendency of proceeding; CLI-01-28, 54 NRC 400 n.12
(2001)
forum for litigation of current safety problems; CLI-01-17, 54 NRC 23, 24 n.18 (2001)
opportunity for late filing of contentions or motions to reopen because of revision of regulations;
CLI-01-26, 54 NRC 383 (2001)
standard for amendment of contentions; CLI-01-17, 54 NRC 25 (2001)
I-27
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. 2.714(a)(1)
balancing test applied to late-filed contentions; LBP-01-37, 54 NRC 479, 482, 483-84, 488 (2001);
LBP-01-39, 54 NRC 507 (2001)
denial of request for admission of amended contention for failure to address late-filing criteria of;
LBP-01-22, 54 NRC 157 n.1 (2001)
opportunity for petitioner to submit late-filed contentions based on new information in supplemental
environmental impact statement; CLI-01-17, 54 NRC 26 (2001)
submission of late-filed contentions based on RAI responses, Staff’s SER, and changes to the LTP;
LBP-01-21, 54 NRC 42, 52 n.2, 56, 105 (2001)
use of late-filed contentions to address terrorism-related modification in safety, environmental, and
safeguards rules; CLI-01-27, 54 NRC 391 (2001)
10 C.F.R. 2.714(a)(2)
interest requirement for intervention in NRC proceedings; CLI-01-24, 54 NRC 356-57 (2001)
particularity required of intervention petitions; LBP-01-21, 54 NRC 43 (2001)
responsibility of intervenors to demonstrate how their own interest may be affected by the results of the
proceeding; CLI-01-17, 54 NRC 26 (2001)
10 C.F.R. 2.714(b)
applicability to filing requirements for contentions in Subpart L proceeding; LBP-01-35, 54 NRC 421
(2001)
contention requirement for intervention in NRC proceedings; CLI-01-17, 54 NRC 26 (2001); CLI-01-24,
54 NRC 357 (2001)
criteria for consideration of late-filed contentions based on previously unavailable documents; LBP-01-31,
54 NRC 246 (2001)
limits on subject matter of contentions; LBP-01-35, 54 NRC 424 (2001)
specificity requirements for contentions; LBP-01-21, 54 NRC 54, 55 (2001)
10 C.F.R. 2.714(b)(1)
contention requirement for participation in Subpart L proceeding; LBP-01-35, 54 NRC 421 (2001)
10 C.F.R. 2.714(b)(2)
applicability to contentions in Subpart L proceeding; LBP-01-35, 54 NRC 411 (2001)
applicability to late-filed contentions; LBP-01-39, 54 NRC 507 (2001)
burden on proponents of contentions to meet pleading requirements; LBP-01-35, 54 NRC 422, 431, 434,
438, 441, 442, 444, 450, 458, 459, 463, 469 (2001)
extension of time for filing of amended and supplemented petitions because of unavailability of NRC
Web site; LBP-01-31, 54 NRC 245 (2001)
inadmissibility of contention because of lack of foundation; CLI-01-17, 54 NRC 16 (2001)
litigation of contentions that have national security implications; LBP-01-35, 54 NRC 429 (2001)
pleading requirements for contentions; CLI-01-24, 54 NRC 358 (2001); LBP-01-39, 54 NRC 505 (2001)
relevance of NUREG in determining whether petitioner has submitted an admissible contention;
LBP-01-21, 54 NRC 62 (2001)
specificity required of contentions in Subpart L proceeding; LBP-01-35, 54 NRC 421, 455 (2001)
standards applicable to late-filed contentions other than lateness factors; LBP-01-37, 54 NRC 484 (2001)
submission of late-filed contentions based on RAI responses, Staff’s SER, and changes to the LTP;
LBP-01-21, 54 NRC 42, 52 n.2, 56, 105 (2001)
10 C.F.R. 2.714(b)(2)(i)-(iii)
basis and evidentiary support required for contention admission in Subpart L proceeding; LBP-01-35, 54
NRC 421, 444-45, 453, 457, 466, 467, 470, 471 (2001)
10 C.F.R. 2.714(b)(2)(i)
purpose of pleading requirement for brief explanation of basis for contention; LBP-01-39, 54 NRC 508
(2001)
standards applied in ruling on admissibility of contentions in license termination plan proceeding;
LBP-01-21, 54 NRC 47 (2001)
10 C.F.R. 2.714(b)(2)(ii)
expert affidavit support required for contentions at admission stage; LBP-01-35, 54 NRC 456, 458,
463-64 (2001)
I-28
LEGAL CITATIONS INDEX
REGULATIONS
intervenor obligation to clearly reference and summarize information being relied upon in support of
contention; LBP-01-35, 54 NRC 465, 467 (2001)
showing necessary to trigger full evidentiary hearing on license renewal; CLI-01-17, 54 NRC 19 (2001)
support required for contentions at admission stage; LBP-01-21, 54 NRC 47-48, 52, 55, 56, 64 (2001)
10 C.F.R. 2.714(b)(2)(iii)
admissibility of contention for which relief sought is inadequately supported by the facts submitted;
LBP-01-21, 54 NRC 65 (2001)
admissibility of environmental contentions in operating license renewal proceeding; CLI-01-20, 54 NRC
213 (2001)
contention formulation modes; LBP-01-26, 54 NRC 207, 208 (2001)
denial of contention for failure to provide references to specific portions of the contested application;
LBP-01-21, 54 NRC 78, 79 (2001)
failure of contention to raise genuine issue of law or fact; LBP-01-35, 54 NRC 449, 453, 454, 456, 460
(2001)
formulation modes for contentions; LBP-01-23, 54 NRC 171 (2001)
need for intervention petitioners to provide a specific allegation or citation of a regulatory violation in
pleading their contentions; CLI-01-24, 54 NRC 361-62 (2001)
particularity required of contentions at admission stage; LBP-01-21, 54 NRC 76 (2001)
pleading requirements for asserting information deficiencies in licensee applications; LBP-01-21, 54 NRC
64, 66 (2001)
pleading requirements for issues in license transfer proceeding compared to Subpart G requirements;
CLI-01-19, 54 NRC 134 n.20 (2001)
redressability requirement for contention admission in Subpart L proceeding; LBP-01-35, 54 NRC 421
(2001)
reference citations to disputed portions of application required for pleading contentions at admission stage;
CLI-01-24, 54 NRC 361 (2001)
showing necessary for admission of contention; CLI-01-17, 54 NRC 19 (2001); CLI-01-24, 54 NRC 358
(2001)
standard for admission of late-filed contentions based on new information in supplemental environmental
impact statement; CLI-01-17, 54 NRC 25 (2001)
standard for amendment of contentions; LBP-01-22, 54 NRC 161-62 (2001)
use of late-filed petitions to challenge significant changes in environmental documents; LBP-01-34, 54
NRC 303 n.9 (2001)
10 C.F.R. 2.714(d)(1)(i)-(iii)
factors considered in deciding whether to grant standing to a petitioner; LBP-01-21, 54 NRC 43 (2001)
10 C.F.R. 2.714(d)(2)
applicability to late-filed contentions; LBP-01-39, 54 NRC 507 (2001)
extension of time for filing of amended and supplemented petitions because of unavailability of NRC
Web site; LBP-01-31, 54 NRC 245 (2001)
standards applicable to late-filed contentions other than lateness factors; LBP-01-37, 54 NRC 484 (2001)
standards applied in ruling on admissibility of contentions in license termination plan proceeding;
LBP-01-21, 54 NRC 47 (2001)
submission of late-filed contentions based on RAI responses, Staff’s SER, and changes to the LTP;
LBP-01-21, 54 NRC 42, 52 n.2, 56, 105 (2001)
10 C.F.R. 2.714(d)(2)(i)
licensing board authority to dismiss contentions for failure to meet pleading requirements; LBP-01-39, 54
NRC 505 (2001)
10 C.F.R. 2.714(d)(2)(ii)
redressability considerations at contention admission stage; LBP-01-21, 54 NRC 69 (2001)
10 C.F.R. 2.714(f)(3)
scope of board authority in efficient conduct of proceedings; LBP-01-21, 54 NRC 106 (2001)
10 C.F.R. 2.714a
appeal of denial of intervention; CLI-01-17, 54 NRC 5 (2001); CLI-01-24, 54 NRC 350-51 (2001)
I-29
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. 2.714a(a)
appealability of order ruling on standing and contentions; LBP-01-21, 54 NRC 107 (2001)
10 C.F.R. 2.715(c)
change in status of state utility department from full party status to interested state; LBP-01-36, 54 NRC
474 (2001)
opportunity for governmental organizations to participate in a proceeding; LBP-01-21, 54 NRC 44 (2001)
10 C.F.R. 2.720(h)
suspension of formal discovery against Staff pending issuance of safety and environmental review
documents; CLI-01-20, 54 NRC 214 (2001)
10 C.F.R. 2.730(f)
referral of ruling on admissibility of late-filed contention; LBP-01-37, 54 NRC 479, 489 (2001)
10 C.F.R. 2.734
flexibility to deal with new developments during pendency of proceeding; CLI-01-28, 54 NRC 400 n.12
(2001)
opportunity for late filing of contentions or motions to reopen because of revision of regulations;
CLI-01-26, 54 NRC 383 (2001)
10 C.F.R. 2.740, 2.742, 2.744
suspension of formal discovery against Staff pending issuance of safety and environmental review
documents; CLI-01-20, 54 NRC 214 (2001)
10 C.F.R. 2.749
standard for consideration of summary disposition motions; CLI-01-20, 54 NRC 216 (2001); LBP-01-23,
54 NRC 165, 167 (2001)
10 C.F.R. 2.749(a)
burden on opponent of summary disposition motion; LBP-01-34, 54 NRC 302 (2001)
Commission position on use of summary disposition; LBP-01-39, 54 NRC 511 (2001)
denial of summary disposition for failure to provide statement of material facts in dispute controverting
statement of material facts not at issue; LBP-01-38, 54 NRC 491 (2001)
right of opponent of summary disposition to reply to Staff’s response supporting summary disposition
motion; LBP-01-30, 54 NRC 234 n.4 (2001)
standard for grant of summary disposition; LBP-01-22, 54 NRC 159 (2001); LBP-01-23, 54 NRC 167
(2001); LBP-01-26, 54 NRC 203 (2001); LBP-01-34, 54 NRC 296 (2001); LBP-01-40, 54 NRC 530
(2001)
treatment of summary disposition motions where schedule does not allow for such motions; LBP-01-38,
54 NRC 495 n.3 (2001)
10 C.F.R. 2.749(b)
burden on opponent of summary disposition motion; LBP-01-30, 54 NRC 235 (2001); LBP-01-39, 54
NRC 509 (2001)
10 C.F.R. 2.749(d)
standard for grant of summary disposition; LBP-01-22, 54 NRC 159 (2001); LBP-01-23, 54 NRC 167
(2001); LBP-01-26, 54 NRC 203 (2001); LBP-01-30, 54 NRC 235 (2001); LBP-01-34, 54 NRC 296
(2001); LBP-01-39, 54 NRC 509 (2001); LBP-01-40, 54 NRC 530 (2001)
10 C.F.R. 2.758
failure of intervenor to address applicability of regulation to late-filed contention; LBP-01-37, 54 NRC
487 n.2 (2001)
litigability of attacks on generic NRC requirements or regulations or generalized grievances about NRC
policies; CLI-01-24, 54 NRC 364 (2001)
litigability of challenges to Commission rules or regulations; LBP-01-35, 54 NRC 422 (2001)
standard for grant of waiver of generic rule; CLI-01-17, 54 NRC 12 (2001)
10 C.F.R. 2.758(a)
litigability of challenges to Commission rules; LBP-01-37, 54 NRC 482 (2001)
10 C.F.R. 2.758(b)
special-circumstances standard for waiver of application of license renewal rules; CLI-01-17, 54 NRC 10
n.3 (2001)
I-30
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. 2.759
Commission policy on settlements; LBP-01-21, 54 NRC 106 (2001)
need for public interest finding on settlement agreements by licensing board; LBP-01-36, 54 NRC 475
(2001)
10 C.F.R. 2.764(c)
need for Commission to authorize issuance of license for independent spent fuel storage installation;
CLI-01-26, 54 NRC 380 (2001)
10 C.F.R. 2.786
applicability to appeals of decisions wholly denying intervention; CLI-01-24, 54 NRC 351 n.1 (2001)
need for party appealing initial decision denying hearing request in its entirety to meet standards for
discretionary Commission review; CLI-01-18, 54 NRC 130 n.1 (2001)
threat of future widespread harm as basis for interlocutory review; CLI-01-25, 54 NRC 373 (2001)
10 C.F.R. 2.786(g)
criteria applied for review of certified or referred rulings; CLI-01-25, 54 NRC 372 (2001)
increased litigation burden of adding a new contention as ‘‘immediate and serious irreparable impact’’ for
purpose of interlocutory review; LBP-01-39, 54 NRC 521 (2001)
10 C.F.R. 2.790
public availability of licensee reports on radioactive releases; CLI-01-24, 54 NRC 355 (2001)
10 C.F.R. 2.802
forum for litigation of challenges to NRC regulations; CLI-01-17, 54 NRC 12 (2001); DD-01-4, 54 NRC
337 (2001)
10 C.F.R. Part 2, Subpart I
litigation of contentions that have national security implications; LBP-01-35, 54 NRC 429 (2001)
10 C.F.R. Part 2, Subpart K
NRC policy on expedition of proceedings under; LBP-01-29, 54 NRC 227 (2001)
10 C.F.R. Part 2, Subpart L
applicability of Subpart I procedures in informal proceedings; LBP-01-35, 54 NRC 429 (2001)
hearing procedures applicable to construction application request; LBP-01-35, 54 NRC 411 (2001)
10 C.F.R. 2.1205
Commission consideration of petitions by entities who do not have formal party status; CLI-01-28, 54
NRC 398 (2001)
10 C.F.R. 2.1205(h)
judicial standards for standing applied in Subpart L proceedings; CLI-01-21, 54 NRC 250 (2001);
LBP-01-32, 54 NRC 285 (2001); LBP-01-35, 54 NRC 413 (2001)
10 C.F.R. 2.1205(o)
appealability of initial decision denying hearing request in its entirety; CLI-01-18, 54 NRC 30 n.1 (2001)
deadline for appeal of denial of intervention; LBP-01-35, 54 NRC 472 (2001)
10 C.F.R. 2.1209(d)
licensing board certification of novel issue to Commission unnecessary because intervenor has opportunity
to place the issue before the Commission on appeal; LBP-01-35, 54 NRC 447 (2001)
10 C.F.R. 2.1213
Staff discretion to decline to participate in Subpart L proceedings; CLI-01-21, 54 NRC 250 n.1 (2001);
LBP-01-35, 54 NRC 412 (2001)
10 C.F.R. 2.1235
restrictions on expert testimony to affidavit form; LBP-01-35, 54 NRC 411 (2001)
10 C.F.R. 2.1253
need for party appealing initial decision denying hearing request in its entirety to meet standards for
discretionary Commission review; CLI-01-18, 54 NRC 130 n.1 (2001)
10 C.F.R. 2.1300-2.1331
procedures applicable to license transfer proceedings; CLI-01-19, 54 NRC 128 (2001)
10 C.F.R. 2.1306
admissibility of vague, unsupported issues in license transfer proceeding; CLI-01-19, 54 NRC 146 (2001)
interest and issue requirements for intervention in license transfer proceeding; CLI-01-19, 54 NRC 133
(2001)
I-31
LEGAL CITATIONS INDEX
REGULATIONS
pleading requirements for issues in license transfer proceeding; CLI-01-19, 54 NRC 134 (2001)
showing necessary to demonstrate that issues are admissible in a Subpart M proceeding; CLI-01-19, 54
NRC 134-35 (2001)
10 C.F.R. 2.1306(b)(2)
treatment of ‘‘contentions’’ as ‘‘issues’’; CLI-01-19, 54 NRC 128 n.6 (2001)
10 C.F.R. 2.1308(b)
applicability of late-filing standards to new issues or arguments or assertions related to admitted issues;
CLI-01-19, 54 NRC 132 n.13 (2001)
standard for consideration of new issues or arguments related to admitted issues at hearing; CLI-01-19,
54 NRC 150 (2001)
10 C.F.R. 2.1308(d)(2)
deadline for filing joint motion for hearing consisting of written comments; CLI-01-19, 54 NRC 150-51
(2001)
10 C.F.R. 2.1309
authority of presiding officer to question any witness proffered by a party in a license transfer
proceeding; CLI-01-19, 54 NRC 151 (2001)
10 C.F.R. 2.1309(a)(4)
deadline for filing initial written statements of position and written direct testimony; CLI-01-19, 54 NRC
151 (2001)
deadline for filing proposed questions directed to written rebuttal testimony; CLI-01-19, 54 NRC 151
(2001)
deadline for filing written responses to direct testimony, rebuttal testimony, and proposed questions
directed to written rebuttal testimony; CLI-01-19, 54 NRC 151 (2001)
10 C.F.R. 2.1310(a)
authority of presiding officer to question any witness proffered by a party in a license transfer
proceeding; CLI-01-19, 54 NRC 151 (2001)
10 C.F.R. 2.1310(c)
deadline for filing initial written statements of position and written direct testimony; CLI-01-19, 54 NRC
151 (2001)
deadline for filing proposed questions directed to written rebuttal testimony; CLI-01-19, 54 NRC 151
(2001)
deadline for filing written responses to direct testimony, rebuttal testimony, and proposed questions
directed to written rebuttal testimony; CLI-01-19, 54 NRC 151 (2001)
10 C.F.R. 2.1313(c)
options for service of filings in license transfer proceeding; CLI-01-19, 54 NRC 153 (2001)
10 C.F.R. 2.1314(a)
extension of filing time because deadline falls on a Sunday; CLI-01-19, 54 NRC 151 (2001)
10 C.F.R. 2.1314(b), (c)
extension of filing time because period includes a Saturday or Sunday or ends on a Sunday; CLI-01-19,
54 NRC 151 n.36 (2001)
10 C.F.R. 2.1316(b)
Staff responsibilities for submittals in license transfer proceeding when it declines to participate as a
party; CLI-01-19, 54 NRC 152 (2001)
10 C.F.R. 2.1316(b)-(c)
Staff discretion to decline to participate as a party in a license transfer proceeding; CLI-01-19, 54 NRC
128, 152 (2001)
10 C.F.R. 2.1320(a)(9)
disposition of redundant, duplicative, or irrelevant submissions; CLI-01-19, 54 NRC 150 (2001)
10 C.F.R. 2.1321(a)
deadline for filing initial written statements of position and written direct testimony; CLI-01-19, 54 NRC
151 (2001)
entitlement of parties to submit statements of position and written testimony with supporting affidavits on
issues sponsored by other parties; CLI-01-19, 54 NRC 132 (2001)
I-32
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. 2.1321(b)
deadline for filing proposed questions directed to written rebuttal testimony; CLI-01-19, 54 NRC 151
(2001)
deadline for filing written responses to direct testimony, rebuttal testimony, and proposed questions
directed to written rebuttal testimony; CLI-01-19, 54 NRC 151 (2001)
10 C.F.R. 2.1322(a)(1)
deadline for filing initial written statements of position and written direct testimony; CLI-01-19, 54 NRC
151 (2001)
entitlement of parties to submit statements of position and written testimony with supporting affidavits on
issues sponsored by other parties; CLI-01-19, 54 NRC 132 (2001)
10 C.F.R. 2.1322(a)(2)-(3)
deadline for filing written responses to direct testimony, rebuttal testimony, and proposed questions
directed to written rebuttal testimony; CLI-01-19, 54 NRC 151 (2001)
10 C.F.R. 2.1322(a)(4)
deadline for filing proposed questions directed to written rebuttal testimony; CLI-01-19, 54 NRC 151
(2001)
10 C.F.R. 2.1322(b)
authority of presiding officer to question any witness proffered by a party in license transfer proceeding;
CLI-01-19, 54 NRC 151 (2001)
10 C.F.R. 2.1322(c)
deadline for filing written post-hearing statements of position; CLI-01-19, 54 NRC 151 (2001)
10 C.F.R. 2.1322(d)
Commission discretion to use or authorize additional procedures in license transfer proceedings;
CLI-01-19, 54 NRC 130 (2001)
use of Subpart G procedures for license transfer proceedings; CLI-01-19, 54 NRC 130 (2001)
10 C.F.R. 2.1329
Commission authority to waive a rule; CLI-01-19, 54 NRC 130 (2001)
‘‘special circumstances’’ standard for grant of rule waiver; CLI-01-19, 54 NRC 143 (2001)
10 C.F.R. 2.1329(b)
special-circumstances standard for rule waiver; CLI-01-19, 54 NRC 130 (2001)
10 C.F.R. Part 20
adequacy of characterization of foundation in which rubble will be buried to meet limits for unrestricted
release; LBP-01-21, 54 NRC 102 (2001)
effect of alterations in REMODCM on regulatory requirements for radioactive effluents and radiological
environmental monitoring; CLI-01-24, 54 NRC 354 (2001)
potential for radioactive releases from rubblization to go undetected; LBP-01-21, 54 NRC 102 (2001)
remediation of contamination within discharge canal; LBP-01-21, 54 NRC 100 (2001)
scope of issues considered in generic environmental impact statement; CLI-01-17, 54 NRC 16 (2001)
sources used in promulgating basic radiation protection standards; LBP-01-25, 54 NRC 188, 194 (2001)
10 C.F.R. 20.1003
definition of ‘‘critical group’’ in relation to dose modeling calculation methodology employed in license
termination plan; CLI-01-25, 54 NRC 371 (2001); LBP-01-25, 54 NRC 182, 183, 185, 186, 194-95
(2001)
need for controlled area around fuel fabrication facility to be in control of licensees; LBP-01-35, 54 NRC
434 (2001)
public dose relative to control area for fuel fabrication facility; LBP-01-35, 54 NRC 461-62 (2001)
10 C.F.R. 20.1302
effect of alterations in REMODCM on regulatory requirements for radioactive effluents and radiological
environmental monitoring; CLI-01-24, 54 NRC 354 (2001)
10 C.F.R. Part 20, Subpart E
adequacy of dose modeling calculation methodology; LBP-01-21, 54 NRC 94 (2001)
adequacy of instruments used to determine background radiation levels; LBP-01-21, 54 NRC 92 (2001)
adequacy of methodology for identification of subsurface contamination relative to unrestricted release of
site; LBP-01-21, 54 NRC 82 (2001)
I-33
LEGAL CITATIONS INDEX
REGULATIONS
adequacy of monitoring of contaminated groundwater; LBP-01-21, 54 NRC 95, 96 (2001)
adequacy of phased-release approach to decommissioning to prevent recontamination of released property;
LBP-01-21, 54 NRC 53, 54, 56 (2001)
exclusion of gross alpha and beta concentrations from dose modeling calculations; LBP-01-21, 54 NRC
99, 100 (2001)
use of rubblized concrete dismantlement to address radiological criteria for license termination;
LBP-01-21, 54 NRC 102 (2001)
10 C.F.R. 20.1401(d)
use of average member of critical group to determine dose; LBP-01-21, 54 NRC 104 (2001)
10 C.F.R. 20.1402
interpretation of ‘‘average member of critical group’’; LBP-01-25, 54 NRC 180, 183, 190, 194, 196-97,
198 (2001)
limits on residual radiation at decommissioned site; CLI-01-25, 54 NRC 371 (2001)
need to consider children as average members of critical population; LBP-01-21, 54 NRC 93 (2001)
10 C.F.R. 20.1501
effect of alterations in REMODCM on requirement to demonstrate the accuracy of surveys of effluent
concentrations and offsite dose levels, to assure compliance with applicable dose limits; CLI-01-24, 54
NRC 354 (2001)
10 C.F.R. 20.2001
creation of unlicensed waste facility by transfer of high-alpha-activity waste to DOE tank farm;
LBP-01-35, 54 NRC 449 (2001)
10 C.F.R. 20.2001(a)(1)
licensee authority to transfer radioactive waste to DOE; LBP-01-35, 54 NRC 468 (2001)
10 C.F.R. Part 20, Appendix B, Table 2
effect of alterations in REMODCM on regulatory requirements for radioactive effluents and radiological
environmental monitoring; CLI-01-24, 54 NRC 354 (2001)
10 C.F.R. 26.2
applicability of fitness-for-duty requirements to contract security workers; DD-01-5, 54 NRC 342 (2001)
10 C.F.R. 26.10
licensee responsibility to provide measures for detection of personnel who are not fit to perform their
duties, scope of; DD-01-5, 54 NRC 341 (2001)
10 C.F.R. 26.10(a)
conflict between contractual rights and federal regulations in fitness-for-duty policies; DD-01-5, 54 NRC
342 (2001)
10 C.F.R. 26.10(b)
conflict between contractual rights and federal regulations in fitness-for-duty policies; DD-01-5, 54 NRC
342 (2001)
sanctions for reporting fitness-for-duty concerns; DD-01-5, 54 NRC 345 (2001)
10 C.F.R. 26.20
consideration of fatigue in determining a worker’s fitness for duty; DD-01-5, 54 NRC 341, 342 (2001)
10 C.F.R. 26.27(b)(1)
licensee responsibility to determine whether an employee is fit for duty before returning that individual to
duty; DD-01-5, 54 NRC 344 (2001)
10 C.F.R. Part 50
analysis of safety and environmental impacts of design basis and design-basis accidents for fuel
fabrication facility; LBP-01-35, 54 NRC 439 (2001)
requirement for license termination plan to be site-specific rather than generic; LBP-01-21, 54 NRC 78
(2001)
10 C.F.R. 50.7
scope of actions comprising discrimination; DD-01-5, 54 NRC 344 (2001)
10 C.F.R. 50.9
need for investigation of steam generator tube rupture event; DD-01-4, 54 NRC 336 (2001)
10 C.F.R. 50.13
applicability to NEPA responsibilities; LBP-01-37, 54 NRC 487 (2001)
I-34
LEGAL CITATIONS INDEX
REGULATIONS
need for nuclear facilities to protect against attacks by foreign enemy governments or individuals;
CLI-01-26, 54 NRC 379 (2001); LBP-01-35, 54 NRC 445 (2001)
overall Commission approach regarding sabotage/terrorism events relating to power reactors; LBP-01-37,
54 NRC 486 (2001)
10 C.F.R. 50.33
financial qualifications information to be included in license transfer application; DD-01-4, 54 NRC 338
(2001)
10 C.F.R. 50.33(f)
financial qualifications requirements for new plant owners and operators who are not electric utilities;
CLI-01-19, 54 NRC 129 (2001)
showing necessary to demonstrate materiality of shortfall in revenue predictions to financial qualifications
for license transfer; CLI-01-19, 54 NRC 139 (2001)
10 C.F.R. 50.33(f)(2)
financial qualifications for transfer of license to owner and operator that is not an electric utility;
CLI-01-19, 54 NRC 135 (2001)
scope of annual operating cost data to be submitted to establish financial qualifications for license
transfer; CLI-01-19, 54 NRC 131 (2001)
10 C.F.R. 50.33(g)
emergency planning requirements for license transfer; CLI-01-19, 54 NRC 146 (2001)
10 C.F.R. 50.33(k)(1)
content of license transfer application regarding decommissioning funding; CLI-01-19, 54 NRC 142
(2001)
10 C.F.R. 50.36
contents of technical specifications; CLI-01-24, 54 NRC 351-52, 361-62 (2001)
criteria to be used to determine items to be included in technical specifications; CLI-01-24, 54 NRC 352
(2001)
10 C.F.R. 50.36(c)(1)(ii)(A)
removal of effluent monitoring procedures from technical specifications; CLI-01-24, 54 NRC 362 (2001)
10 C.F.R. 50.36a
requirements that should be included in technical specifications; CLI-01-24, 54 NRC 361 (2001)
scope of issues considered in generic environmental impact statement; CLI-01-17, 54 NRC 16-17 (2001)
10 C.F.R. 50.36a(a)
effect of alterations in REMODCM on requirement to maintain radioactive effluents as low as reasonably
achievable; CLI-01-24, 54 NRC 355 (2001)
10 C.F.R. 50.36a(a)(2)
effect of alterations in REMODCM on reporting requirements for radioactive releases; CLI-01-24, 54
NRC 355, 365 (2001)
10 C.F.R. 50.46
rejection of petition requesting shutdown of all similar reactors following Three Mile Island accident;
CLI-01-26, 54 NRC 382 n.19 (2001)
10 C.F.R. 50.47
emergency planning standards for license renewals; CLI-01-17, 54 NRC 9 (2001)
10 C.F.R. 50.51
length of reactor operating license with renewal; CLI-01-17, 54 NRC 7 (2001)
10 C.F.R. 50.54(s)-(u)
emergency planning standards for license renewals; CLI-01-17, 54 NRC 9 (2001)
10 C.F.R. 50.59
hearing rights on licensee actions or changes in procedures relating to technical specifications; CLI-01-24,
54 NRC 354 (2001)
10 C.F.R. 50.73
documentation of plant performance problems, licensee responsibility for; DD-01-4, 54 NRC 330 (2001)
10 C.F.R. 50.75
litigability of challenge to adequacy of decommissioning funding approach; CLI-01-19, 54 NRC 143 n.33
(2001)
I-35
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. 50.75(a)
showing necessary to demonstrate adequacy of decommissioning funding; CLI-01-19, 54 NRC 142 (2001)
10 C.F.R. 50.75(c)
rejection of use of site-specific estimates for determining decommissioning funding; CLI-01-19, 54 NRC
144 (2001)
10 C.F.R. 50.75(e)
showing necessary to demonstrate adequacy of decommissioning funding; CLI-01-19, 54 NRC 142 (2001)
10 C.F.R. 50.75(e)(1)(i)
calculation of prepayment amount for demonstrating assurance of adequate decommissioning funding;
CLI-01-19, 54 NRC 142 (2001)
litigability of challenge to generic decision made by the Commission in its decommissioning rulemaking;
CLI-01-19, 54 NRC 143 (2001)
10 C.F.R. 50.75(g)
adequacy of supporting documentation for site characterization; LBP-01-21, 54 NRC 79 (2001)
NRC Staff review of site characterization plan; LBP-01-21, 54 NRC 61 (2001)
10 C.F.R. 50.80
Commission consent in writing required for transfer of NRC licenses; CLI-01-19, 54 NRC 127 (2001)
processing of license transfer request as license amendment; DD-01-4, 54 NRC 337 (2001)
10 C.F.R. 50.82
adequacy of dose modeling calculation methodology; LBP-01-21, 54 NRC 92 (2001)
adequacy of methodology for identification of subsurface contamination; LBP-01-21, 54 NRC 81 (2001)
adequacy of methodology to determine background radiation; LBP-01-21, 54 NRC 90, 91, 92 (2001)
adequacy of phased-release approach to decommissioning to prevent recontamination of released property;
LBP-01-21, 54 NRC 53 (2001)
adequacy of site characterization, methodology for detection, and cleanup of transuranic, HTDN, and
hot-particle contamination; LBP-01-21, 54 NRC 80 (2001)
admissibility of contention that fails to show that omissions would cause license termination plan to be in
violation of; LBP-01-21, 54 NRC 65 (2001)
consideration of deep pockets and potential concentrations of subsoil contamination; LBP-01-21, 54 NRC
83 (2001)
dose modeling calculation methodology employed in license termination plan, challenges to; LBP-01-25,
54 NRC 180 (2001)
effect of inadequacy in site characterization on final status survey; LBP-01-21, 54 NRC 79 (2001)
failure to demonstrate that intentional burial of contaminated building debris in foundations onsite is
ALARA; LBP-01-21, 54 NRC 102 (2001)
10 C.F.R. 50.82(a)
applicability of historical site assessment plans to license termination plan; LBP-01-21, 54 NRC 58 (2001)
10 C.F.R. 50.82(a)(9)
challenges to approval of license termination plan; LBP-01-25, 54 NRC 178 (2001)
creation of presumptive violation of subsection (a)(10)through violation of this regulation; LBP-01-21, 54
NRC 66 (2001)
definition of ‘‘site characterization’’ in context of license termination plan; LBP-01-21, 54 NRC 60
(2001)
failure of petitioner to tie ‘‘prudent’’ activities to adequacy of final site survey; LBP-01-21, 54 NRC 97
(2001)
identification of unmonitored leaks that will cause groundwater contamination, adequacy of methods for;
LBP-01-21, 54 NRC 98 (2001)
licensing board authority to determine what a licensee may do after unrestricted release of a site;
LBP-01-21, 54 NRC 104 (2001)
obligation of a licensee who is decommissioning a plant to file a license termination plan; LBP-01-21, 54
NRC 41, 45 (2001)
scope of a license termination plan proceeding; LBP-01-21, 54 NRC 46 (2001)
I-36
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. 50.82(a)(9)(ii)
right of licensee to file a license termination plan either concurrently with or prior to license termination
request; LBP-01-21, 54 NRC 45 (2001)
10 C.F.R. 50.82(a)(9)(ii)(A)
adequacy of characterization of piping and drains to meet requirements of; LBP-01-21, 54 NRC 77
(2001)
adequacy of license termination plan with respect to radiological monitoring; LBP-01-21, 54 NRC 70
(2001)
adequacy of supporting documentation for site characterization; LBP-01-21, 54 NRC 79 (2001)
guidance on what constitutes an adequate site characterization plan; LBP-01-21, 54 NRC 62, 63, 64, 67
(2001)
NRC Staff review of site characterization plan; LBP-01-21, 54 NRC 61 (2001)
weight given to guidance documents in resolving ambiguities in a regulation’s language; LBP-01-21, 54
NRC 60 (2001)
10 C.F.R. 50.82(a)(9)(ii)(A)-(G)
filing requirements for license termination plan proceeding; LBP-01-21, 54 NRC 46 (2001)
10 C.F.R. 50.82(a)(9)(ii)(D)
detail required on final radiation survey in license termination plan; LBP-01-21, 54 NRC 50, 52, 55, 56,
82 (2001)
10 C.F.R. 50.82(a)(10)
challenges to approval of license termination plan; LBP-01-25, 54 NRC 178 (2001)
creation of presumptive violation of, by violation of subsection (a)(9); LBP-01-21, 54 NRC 66-67 (2001)
definition of ‘‘site characterization’’ in context of license termination plan; LBP-01-21, 54 NRC 60
(2001)
litigability of adequacy of survey methodology to demonstrate that site will be brought to a condition
suitable for license termination; LBP-01-21, 54 NRC 56 (2001)
failure of petitioner to tie ‘‘prudent’’ activities to adequacy of final site survey; LBP-01-21, 54 NRC 97
(2001)
identification of unmonitored leaks that will cause groundwater contamination, adequacy of methods for;
LBP-01-21, 54 NRC 98 (2001)
licensing board authority to determine what a licensee may do after unrestricted release of a site;
LBP-01-21, 54 NRC 104 (2001)
obligation of a licensee who is decommissioning a plant to file a license termination plan; LBP-01-21, 54
NRC 41, 45 (2001)
scope of a license termination plan proceeding; LBP-01-21, 54 NRC 46 (2001)
standard for Commission approval of a license termination plan; LBP-01-21, 54 NRC 45-46 (2001)
10 C.F.R. 50.82(a)(11)
Commission determination necessary for license termination; LBP-01-21, 54 NRC 46 (2001)
10 C.F.R. 50.82(a)(11)(ii)
Commission finding necessary for termination of license; LBP-01-21, 54 NRC 54, 55 (2001)
10 C.F.R. 50.82(b)
applicability of historical site assessment plans to license termination plan; LBP-01-21, 54 NRC 58 (2001)
10 C.F.R. 50.92(c)
Staff finding of no significant hazards in license amendment approving license termination plan;
LBP-01-21, 54 NRC 41 (2001)
10 C.F.R. Part 50, Appendix A, General Design Criterion 2
seismic analysis considerations for independent spent fuel storage installations; LBP-01-39, 54 NRC 500
(2001)
10 C.F.R. Part 50, Appendix B
compliance of quality assurance/quality control plan with requirements for license termination plan;
LBP-01-21, 54 NRC 50 (2001)
10 C.F.R. Part 50, Appendix E
emergency planning standards for license renewals; CLI-01-17, 54 NRC 9 (2001)
I-37
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. Part 50, Appendix I
calculation of setpoints to conform with ALARA requirement; CLI-01-24, 54 NRC 355 n.6 (2001)
effect of alterations in REMODCM on design criteria for equipment to process and maintain radioactive
effluents as low as reasonably achievable; CLI-01-24, 54 NRC 354 (2001)
scope of issues considered in generic environmental impact statement; CLI-01-17, 54 NRC 16-17 (2001)
10 C.F.R. Part 51
failure of environmental report to discuss potential for overflow of sewer/wastewater system as a violation
of; LBP-01-40, 54 NRC 528 (2001)
requirement for license termination plan to be site-specific rather than generic; LBP-01-21, 54 NRC 78
(2001)
scope of environmental review for license renewal; CLI-01-17, 54 NRC 6, 13 (2001)
10 C.F.R. Part 51, Subpart A
timing for commencement of an environmental impact statement; LBP-01-35, 54 NRC 454 (2001)
10 C.F.R. 51.10(a)
need for preparation of probabilistic risk assessment in environmental report; LBP-01-35, 54 NRC 448
(2001)
10 C.F.R. 51.15(a)
publication of notice of intent to prepare an environmental impact statement; LBP-01-35, 54 NRC 452
(2001)
right of Staff to begin a NEPA investigation before publication of a schedule; LBP-01-35, 54 NRC 454
(2001)
10 C.F.R. 51.22(c)(9)(ii)
trigger for environmental review for license amendment; CLI-01-24, 54 NRC 365 (2001)
10 C.F.R. 51.23(a)
litigability of issues related to onsite storage of spent fuel in license renewal proceeding; CLI-01-17, 54
NRC 23 n.14 (2001)
10 C.F.R. 51.25
publication of notice of intent to prepare an environmental impact statement; LBP-01-35, 54 NRC 452
(2001)
10 C.F.R. 51.26(a)
litigability of change in environmental justice criteria; LBP-01-35, 54 NRC 454 (2001)
publication of notice of intent to prepare an environmental impact statement; LBP-01-35, 54 NRC 452,
453 (2001)
10 C.F.R. 51.28(a)(3)
need for Defense Nuclear Facilities Safety Board to be consulted in NRC’s NEPA scoping process;
LBP-01-35, 54 NRC 453 (2001)
10 C.F.R. 51.40(a)
right of applicant to confer with NRC Staff before environmental report is submitted; LBP-01-35, 54
NRC 453-54 (2001)
10 C.F.R. 51.45
need to consider environmental effects of terrorist attacks in environmental impact statement; LBP-01-37,
54 NRC 479, 480 (2001)
scope of environmental report for independent spent fuel storage installation; LBP-01-23, 54 NRC 165
(2001)
10 C.F.R. 51.45(b)
foundation document for environmental impact statement; LBP-01-35, 54 NRC 424 (2001)
litigability of DOE’s general management of radioactive waste; LBP-01-35, 54 NRC 450 (2001)
litigability of inaccuracies in DOE’s environmental documents; LBP-01-35, 54 NRC 451 (2001)
need for environmental report to contain information about effluent characteristics and environmental
impacts of seepage from pond; LBP-01-40, 54 NRC 528 (2001)
10 C.F.R. 51.45(c)
need to include economic benefits of proposed action in environmental report for fuel fabrication facility;
LBP-01-35, 54 NRC 440-41 (2001)
I-38
LEGAL CITATIONS INDEX
REGULATIONS
need to quantify probability of accidents or explain why it is not practical to quantify them in
environmental report for fuel fabrication facility; LBP-01-35, 54 NRC 447-48 (2001)
10 C.F.R. 51.45(d)
need for disclosure of environmental, safety, and health compliance records of all of licensee’s major and
minor partners; LBP-01-35, 54 NRC 459-60 (2001)
parties’ agreement to record their disagreement regarding permits, licenses, and approvals in connection
with license application for independent spent fuel storage installation in applicant’s environmental
report; LBP-01-24, 54 NRC 175 (2001)
10 C.F.R. 51.45(e)
litigability of inaccuracies in DOE’s environmental documents; LBP-01-35, 54 NRC 451 (2001)
need to consider costs and benefits of proposed action in environmental report for fuel fabrication facility;
LBP-01-35, 54 NRC 441 (2001)
10 C.F.R. 51.52(a)
threshold condition for weight of loaded shipping cask for transport of spent nuclear fuel; LBP-01-22, 54
NRC 157 (2001)
10 C.F.R. 51.52(a), Table S-4
basis for environmental report analysis of transportation-related environmental impacts of spent fuel
transport, validity of; LBP-01-22, 54 NRC 159 (2001)
10 C.F.R. 51.52(b)
content of environmental report concerning analysis of environmental effects of transportation of spent
fuel and wastes to and from reactor; LBP-01-22, 54 NRC 157, 161 (2001)
10 C.F.R. 51.52(c), Table S-4
applicability to weight of loaded shipping cask for transport of spent nuclear fuel; LBP-01-22, 54 NRC
157 (2001)
scope of environmental impacts considered relative to weight of loaded shipping cask; LBP-01-22, 54
NRC 157 (2001)
10 C.F.R. 51.53(c)(3)(i)
need for license renewal applicants to submit an analysis of Category 1 issues in their site-specific
environmental reports; CLI-01-17, 54 NRC 11 (2001)
10 C.F.R. 51.60(b)(iii)
scope of environmental report for independent spent fuel storage installation; LBP-01-23, 54 NRC 165
(2001)
10 C.F.R. 51.61
need to consider environmental effects of terrorist attacks in environmental impact statement; LBP-01-37,
54 NRC 479 (2001)
10 C.F.R. 51.70, 51.73-.74
scope of NRC Staff environmental review process; CLI-01-17, 54 NRC 12 (2001)
10 C.F.R. 51.70(b)
NRC Staff responsibility to independently evaluate reliability of information used in draft environmental
impact statement; LBP-01-34, 54 NRC 302-03 (2001)
responsibility of Staff to independently evaluate and be responsible for all information used in DEIS;
LBP-01-38, 54 NRC 492, 494 (2001)
10 C.F.R. 51.71
need to consider environmental effects of terrorist attacks in environmental impact statement; LBP-01-37,
54 NRC 479 (2001)
10 C.F.R. 51.71(d)
adoption of applicable Category 1 environmental impact findings from generic environmental impact
statement in supplemental environmental impact statement; CLI-01-17, 54 NRC 12 (2001)
environmental issues litigable in operating license renewal proceeding; CLI-01-20, 54 NRC 213 (2001)
10 C.F.R. 51.95
scope of environmental review for license transfer; CLI-01-17, 54 NRC 12 (2001)
10 C.F.R. 51.95(c)
adoption of applicable Category 1 environmental impact findings from generic environmental impact
statement in supplemental environmental impact statement; CLI-01-17, 54 NRC 12 (2001)
I-39
LEGAL CITATIONS INDEX
REGULATIONS
environmental issues litigable in operating license renewal proceeding; CLI-01-20, 54 NRC 213 (2001)
scope of environmental review for license renewal proceeding; CLI-01-17, 54 NRC 5, 15 (2001)
10 C.F.R. 51.103(a)(5)
NRC determination of cumulative environmental impacts for license renewal; CLI-01-17, 54 NRC 15
(2001)
10 C.F.R. Part 51, Subpart A, Appendix A.1(b)
tiering, adoption, or incorporation of other federal agencies’ environmental impact statements into
Commission’s EIS; LBP-01-35, 54 NRC 424 (2001)
10 C.F.R. Part 51, Appendix B
definition of Category 2 issues; CLI-01-17, 54 NRC 11 (2001)
10 C.F.R. Part 51, Appendix B, Table B-1
litigability of Category 1 issues in license renewal proceeding; CLI-01-17, 54 NRC 11, 17, 21 (2001)
litigability of Category 2 issues in license renewal proceeding; CLI-01-17, 54 NRC 18 (2001)
10 C.F.R. Part 54
scope of technical review for license renewal; CLI-01-17, 54 NRC 6, 13, 16 (2001)
10 C.F.R. 54.3
scope of current licensing basis; CLI-01-17, 54 NRC 9 (2001)
10 C.F.R. 54.4
scope of safety review for license renewal proceeding; CLI-01-17, 54 NRC 5 (2001)
structures, systems, and components subject to time-limited aging analysis for operating license renewal;
CLI-01-20, 54 NRC 212 (2001)
10 C.F.R. 54.21(a)
need for license renewal applicants to address how they will manage the effects of aging during proposed
period of extended operation; CLI-01-17, 54 NRC 8 (2001)
scope of aging management review for operating license renewal; CLI-01-20, 54 NRC 212 (2001)
10 C.F.R. 54.21(a)(1)(i)
components and structures affected by age-related degradation relevant to license renewal; CLI-01-17, 54
NRC 8 (2001)
10 C.F.R. 54.21(c)
reassessment of time-limited aging analyses in light of license renewal request; CLI-01-17, 54 NRC 8
(2001)
scope of aging management review for operating license renewal; CLI-01-20, 54 NRC 212 (2001)
10 C.F.R. 54.29(a)(2)
reassessment of time-limited aging analyses in light of license renewal request; CLI-01-17, 54 NRC 8
(2001)
10 C.F.R. 54.31
length of reactor operating license with renewal; CLI-01-17, 54 NRC 7 (2001)
10 C.F.R. Part 60
risk standard for design-basis event at geologic repository; CLI-01-22, 54 NRC 263, 264 (2001)
10 C.F.R. Part 70
hearing procedures applicable to construction application request; LBP-01-35, 54 NRC 411 (2001)
litigability of financial assurance of DOE funding of facility; LBP-01-35, 54 NRC 457, 458 (2001)
10 C.F.R. 70.4
definition of ‘‘contiguous site’’; LBP-01-35, 54 NRC 449 (2001)
10 C.F.R. 70.9
litigability of accuracy and completeness of information in environmental report; LBP-01-35, 54 NRC
449, 450, 451 (2001)
10 C.F.R. 70.9(a)
litigability of accuracy and completeness of information in license application; LBP-01-35, 54 NRC 463
(2001)
10 C.F.R. 70.22(f)
litigability of challenge to; LBP-01-35, 54 NRC 451 (2001)
standard for judging adequacy of safety analysis; LBP-01-35, 54 NRC 436 (2001)
I-40
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. 70.22(i)(1)(ii)
emergency planning requirements for fuel fabrication facility at construction application review stage;
LBP-01-35, 54 NRC 463, 471 (2001)
10 C.F.R. 70.23(a)(7) and (b)
bounds on scope of a materials license proceeding; LBP-01-35, 54 NRC 423 (2001)
10 C.F.R. 70.23(b)
definition of ‘‘principal systems’’; LBP-01-35, 54 NRC 427 (2001)
limits on scope of construction authorization proceeding; LBP-01-35, 54 NRC 427-28 (2001)
standard for judging adequacy of safety analysis; LBP-01-35, 54 NRC 436 (2001)
10 C.F.R. 70.32(b)
Commission authority to make modifications of regulations applicable to licensees and applicants;
CLI-01-28, 54 NRC 400 (2001)
10 C.F.R. 70.42(b)(1)
condition under which special nuclear material can be transferred to DOE; LBP-01-35, 54 NRC 449
(2001)
licensee authority to transfer radioactive waste to DOE; LBP-01-35, 54 NRC 468 (2001)
10 C.F.R. 70.61
consideration of workers within controlled area for purpose of dose assessment; LBP-01-35, 54 NRC 434
(2001)
standard for judging adequacy of safety analysis; LBP-01-35, 54 NRC 436, 437 (2001)
10 C.F.R. 70.61(f)
licensee designation of controlled area; LBP-01-35, 54 NRC 435 (2001)
occupational dose relative to control area for fuel fabrication facility; LBP-01-35, 54 NRC 461-62 (2001)
10 C.F.R. 70.64(b)
standard for judging adequacy of safety analysis; LBP-01-35, 54 NRC 436 (2001)
10 C.F.R. 70.76, 70.81(a)
Commission authority to make modifications of regulations applicable to licensees and applicants;
CLI-01-28, 54 NRC 400 (2001)
10 C.F.R. Part 71
forum for litigation of concerns about spent fuel shipping casks; LBP-01-37, 54 NRC 482 (2001)
10 C.F.R. Part 72
comparability of design bases of geologic repositories and independent spent fuel storage installations;
CLI-01-22, 54 NRC 262, 264 (2001)
definition of ‘‘design basis’’; CLI-01-22, 54 NRC 259 n.7 (2001)
design features for physical security of independent spent fuel storage installation; CLI-01-26, 54 NRC
378 (2001)
10 C.F.R. 72.3
definition of ‘‘design basis’’; CLI-01-22, 54 NRC 259 n.7 (2001)
10 C.F.R. 72.24(d)
adequacy of assessment of contaminant pathways from independent spent fuel storage installation;
LBP-01-40, 54 NRC 528 (2001)
10 C.F.R. 72.34
need to consider environmental effects of terrorist attacks in environmental impact statement; LBP-01-37,
54 NRC 479, 480 (2001)
10 C.F.R. 72.40
licensing procedure for operating an independent spent fuel storage installation after a Part 50 license has
been terminated; LBP-01-21, 54 NRC 53 n.3 (2001)
10 C.F.R. 72.40(a)(13)
need for Commission to consider terrorist events of 9/11 to make requisite public health and safety
reasonable assurance finding under; LBP-01-37, 54 NRC 482 (2001)
10 C.F.R. 72.62
NRC authority to order backfitting of facilities; CLI-01-26, 54 NRC 384 (2001)
I-41
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. 72.66(a)(5)
applicability to site selection for independent spent fuel storage installation; LBP-01-26, 54 NRC 208 n.4
(2001)
10 C.F.R. Part 72, Subpart E
applicability to a site being evaluated to determine whether it will be chosen as the proposed site for an
independent spent fuel storage installation; LBP-01-26, 54 NRC 208 (2001)
application to site evaluation factors for independent spent fuel storage installation; LBP-01-26, 54 NRC
202 (2001)
10 C.F.R. 72.90(c)
scope of accident analysis for independent spent fuel storage installation; CLI-01-22, 54 NRC 258 n.6
(2001)
10 C.F.R. 72.90(d)
denial of applications for proposed facilities that cannot be designed to withstand credible accidents;
CLI-01-22, 54 NRC 259 (2001)
10 C.F.R. 72.92
scope of accident analysis for independent spent fuel storage installation; CLI-01-22, 54 NRC 258 n.6
(2001)
10 C.F.R. 72.94
applicability to terrorist events that have happened in a region other than where the facility will be sited;
LBP-01-37, 54 NRC 482 (2001)
need to consider suicide mission terrorism and sabotage in design basis for independent spent fuel storage
installation; LBP-01-37, 54 NRC 479, 480 (2001)
scope of accident analysis for independent spent fuel storage installation; CLI-01-22, 54 NRC 258 n.6
(2001)
10 C.F.R. 72.100(b)
adequacy of assessment of contaminant pathways from independent spent fuel storage installation;
LBP-01-40, 54 NRC 528 (2001)
adequacy of discussion of ecological and species impacts of spent fuel storage facility in environmental
report and draft environmental impact statement; LBP-01-30, 54 NRC 233 (2001)
10 C.F.R. 72.102
seismic analysis considerations for independent spent fuel storage installations; LBP-01-39, 54 NRC 500
(2001)
10 C.F.R. 72.102(c), (d)
scope of seismic design analyses for independent spent fuel storage installations; LBP-01-39, 54 NRC 517
(2001)
10 C.F.R. 72.102(e)
applicability to a site being evaluated to determine whether it will be chosen as the proposed site for an
independent spent fuel storage installation; LBP-01-26, 54 NRC 208 n.4 (2001)
10 C.F.R. 72.102(f)(1)
use of deterministic seismic analysis methodology for independent spent fuel storage installations;
LBP-01-39, 54 NRC 514 (2001)
10 C.F.R. 72.106
design basis for physical protection system for independent spent fuel storage installations; LBP-01-37, 54
NRC 485 (2001)
vulnerability of spent fuel shipping casks to terrorist casks; LBP-01-37, 54 NRC 481 (2001)
10 C.F.R. 72.106(b)
protective measures for events that do not exceed the design basis; CLI-01-22, 54 NRC 259 (2001)
10 C.F.R. 72.108
adequacy of assessment of contaminant pathways from independent spent fuel storage installation;
LBP-01-40, 54 NRC 528 (2001)
adequacy of discussion of ecological and species impacts of spent fuel storage facility in environmental
report and draft environmental impact statement; LBP-01-30, 54 NRC 233 (2001)
I-42
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. 72.122(b)
scope of seismic design analyses for independent spent fuel storage installations; LBP-01-39, 54 NRC 517
(2001)
10 C.F.R. 72.122(b)(1)
design basis for independent spent fuel storage installations; CLI-01-22, 54 NRC 259 (2001)
10 C.F.R. 72.122(c)
types of hazards considered in design basis for independent spent fuel storage installations; CLI-01-22, 54
NRC 259 (2001)
10 C.F.R. 72.126(c) & (d)
need for environmental report to contain information about effluent characteristics and environmental
impacts of seepage from pond; LBP-01-40, 54 NRC 528 (2001)
10 C.F.R. 72.180
physical security requirements applicable to independent spent fuel storage installations; LBP-01-37, 54
NRC 485 (2001)
10 C.F.R. 72.182
referral of ruling denying late-filed contention concerning risk of terrorists attacking independent spent
fuel storage installation; CLI-01-26, 54 NRC 378 (2001)
10 C.F.R. 72.184
safeguards contingency plan applicable to independent spent fuel storage installations; LBP-01-37, 54
NRC 485 (2001)
10 C.F.R. Part 73
design features for physical security of independent spent fuel storage installation; CLI-01-26, 54 NRC
378 (2001)
10 C.F.R. 73.51
exclusion of use of airborne vehicle as part of terrorist/sabotage threat evaluation for independent spent
fuel storage installations; LBP-01-37, 54 NRC 485-86 (2001)
litigability of challenge to; LBP-01-37, 54 NRC 481 (2001)
10 C.F.R. 73.51(b)(1)
design features for protection of independent spent fuel storage installation against radiological sabotage;
CLI-01-26, 54 NRC 378 (2001)
objective of physical protection system for independent spent fuel storage installations; LBP-01-37, 54
NRC 485 (2001)
10 C.F.R. 73.51(b)(2)(i)-(iv)
performance capabilities of physical protection system for independent spent fuel storage installations;
LBP-01-37, 54 NRC 485 (2001)
10 C.F.R. 73.51(b)(3)
design basis for physical protection system for independent spent fuel storage installations; LBP-01-37, 54
NRC 485 (2001)
10 C.F.R. 73.51(d)
methods for meeting performance capabilities of physical protection system for independent spent fuel
storage installations; LBP-01-37, 54 NRC 485 (2001)
performance objective for physical protection of an independent spent fuel storage installation; CLI-01-26,
54 NRC 378 (2001)
10 C.F.R. 73.55
design-basis threats for independent spent fuel storage installation; CLI-01-26, 54 NRC 379 (2001)
10 C.F.R. Part 76
review requirements for amendment to certificate for gaseous diffusion plant, scope of; CLI-01-23, 54
NRC 270, 271 (2001)
10 C.F.R. 76.6
weight given to standard review plans; DD-01-3, 54 NRC 324 n.47 (2001)
10 C.F.R. 76.22
consideration of ability to maintain a reliable and economic source of enrichment services when
certificates of compliance are issued, need for; DD-01-3, 54 NRC 310 n.11, 317 n.27, 322 (2001)
I-43
LEGAL CITATIONS INDEX
REGULATIONS
10 C.F.R. 76.33(a)(2)
focus of inquiries on certificate of compliance for enrichment facilities; DD-01-3, 54 NRC 322 (2001)
10 C.F.R. 76.45
consideration of ability to maintain a reliable and economic source of enrichment services when
amendments to certificates of compliance are issued, need for; DD-01-3, 54 NRC 310 n.11 (2001)
response to reply to requests for review of Director’s Decision under Part 76, Commission acceptance of;
CLI-01-23, 54 NRC 270 (2001)
submission of comments that Staff has said it will consider as means for establishing interest requirement
under; CLI-01-23, 54 NRC 273 (2001)
10 C.F.R. 76.45(a)
applicability of criteria for initial certificate to an amendment; DD-01-3, 54 NRC 318 (2001)
10 C.F.R. 76.45(d)
eligibility for review of certificate amendment for gaseous diffusion plant; CLI-01-23, 54 NRC 269,
271-72, 276 (2001); DD-01-3, 54 NRC 307 (2001)
interest requirement for seeking review of certificate amendment for gaseous diffusion plant; CLI-01-23,
54 NRC 269 (2001)
10 C.F.R. 76.45(e)
deadline for filing petition for Commission review; DD-01-3, 54 NRC 325 (2001)
interest requirement for review of certificate amendment for gaseous diffusion plant; CLI-01-23, 54 NRC
269, 272, 276 (2001)
10 C.F.R. 76.45(e)(2)
reply to request for review of Director’s Decision under Part 76; CLI-01-23, 54 NRC 269 (2001)
10 C.F.R. 76.62(c)
comparability to section 76.45(d) and (e) regarding eligibility to seek review; CLI-01-23, 54 NRC 272
n.8 (2001); DD-01-3, 54 NRC 308 (2001)
10 C.F.R. 76.65
NRC authority to approve a transfer of a certificate of compliance; DD-01-3, 54 NRC 311 n.13 (2001)
review requirements for amendment to certificate for gaseous diffusion plant, scope of; CLI-01-23, 54
NRC 271 (2001)
10 C.F.R. 76.70
recurring obligation to apply the direction of AEA §193(f) to amendments of certificates of compliance;
DD-01-3, 54 NRC 319 (2001)
10 C.F.R. 76.70(b)
enforcement actions against certificate holders; DD-01-3, 54 NRC 318 (2001)
10 C.F.R. Part 100, Appendix A
seismic analysis considerations for independent spent fuel storage installations; LBP-01-39, 54 NRC 500,
514 (2001)
40 C.F.R. Part 190
effect of alterations in REMODCM on regulatory requirements for radioactive effluents and radiological
environmental monitoring; CLI-01-24, 54 NRC 354 (2001)
40 C.F.R. 230.10(a)
permit requirements for rail spur alignment that crosses wetlands area; LBP-01-34, 54 NRC 298 (2001)
40 C.F.R. Part 261
definition of ‘‘listed’’ hazardous waste; CLI-01-21, 54 NRC 252 (2001)
40 C.F.R. 1506.5(c)
NRC receipt of funding from DOE alleged to be conflict of interest; LBP-01-35, 54 NRC 455 (2001)
40 C.F.R. 1508.28
‘‘tiering’’ of NEPA documents; CLI-01-17, 54 NRC 14 (2001)
I-44
LEGAL CITATIONS INDEX
STATUTES
42 U.S.C. §6921
definition of ‘‘listed’’ hazardous waste; CLI-01-21, 54 NRC 252 (2001)
Administrative Procedure Act, 5 U.S.C. §501 et seq.
rubblization as low-level waste burial; LBP-01-21, 54 NRC 102 (2001)
Administrative Procedure Act, 5 U.S.C. 558(c)
Commission obligation to achieve expeditious decisionmaking; CLI-01-26, 54 NRC 381 (2001)
Atomic Energy Act, 11e(2), 42 U.S.C. §2014(e)(2)
definition of ‘‘byproduct material’’; CLI-01-18, 54 NRC 30 n.2 (2001)
Atomic Energy Act, 53
Commission determination necessary for issuance of amendment to certificate of compliance for gaseous
diffusion plant; CLI-01-23, 54 NRC 270 (2001)
limitations on ownership of U.S. gaseous diffusion plants; DD-01-3, 54 NRC 314 (2001)
Atomic Energy Act, 63
Commission determination necessary for issuance of amendment to certificate of compliance for gaseous
diffusion plant; CLI-01-23, 54 NRC 270 (2001)
limitations on ownership of U.S. gaseous diffusion plants; DD-01-3, 54 NRC 314 (2001)
Atomic Energy Act, 103, 42 U.S.C. §2133
length of reactor operating license with renewal; CLI-01-17, 54 NRC 7 (2001)
grounds for denial of license or certificate of compliance; CLI-01-23, 54 NRC 279 n.30 (2001)
limitations on ownership of U.S. gaseous diffusion plants; DD-01-3, 54 NRC 316 (2001)
NRC authority to require licensee to continue operating a plant; CLI-01-23, 54 NRC 275 n.16 (2001)
Atomic Energy Act, 104
grounds for denial of license or certificate of compliance; CLI-01-23, 54 NRC 279 n.30 (2001)
limitations on ownership of U.S. gaseous diffusion plants; DD-01-3, 54 NRC 316 (2001)
NRC authority to require licensee to continue operating a plant; CLI-01-23, 54 NRC 275 n.16 (2001)
Atomic Energy Act, 104(d)
contextual analysis approach in construing; DD-01-3, 54 NRC 322 n.39 (2001)
Atomic Energy Act, 108
NRC authority to require licensee to continue operating a plant; CLI-01-23, 54 NRC 275 n.16 (2001)
scope of Commission authority to require enrichment facilities to continue operation of gaseous diffusion
plants; DD-01-3, 54 NRC 319 (2001)
Atomic Energy Act, 123-129
provision for independent review or finding by the Commission in conjunction with other Executive
Branch action; DD-01-3, 54 NRC 319 (2001)
Atomic Energy Act, 161b, 42 U.S.C. 2201(b)
Commission authority to require backfitting of facilities; CLI-01-28, 54 NRC 400 (2001)
Atomic Energy Act, 182, 42 U.S.C. 2232
content of technical specifications; CLI-01-24, 54 NRC 351 (2001)
Atomic Energy Act, 184, 42 U.S.C. §2234
Commission consent in writing required for transfer of NRC licenses; CLI-01-19, 54 NRC 127 (2001)
Atomic Energy Act, 186
enforcement actions against certificate holders; DD-01-3, 54 NRC 318 (2001)
Atomic Energy Act, 189
litigability of changes in a plant’s licensing basis; CLI-01-17, 54 NRC 10 (2001)
I-45
LEGAL CITATIONS INDEX
STATUTES
Atomic Energy Act, 189a, 42 U.S.C. §2239(a)
hearing rights on licensee actions or changes in procedures relating to technical specifications; CLI-01-24,
54 NRC 360, 362 n.10 (2001)
interest and issue requirements for intervention in license transfer proceeding; CLI-01-19, 54 NRC 133
(2001)
interest requirement for intervention; LBP-01-21, 54 NRC 43 (2001)
pleading requirements for contention at admission stage; LBP-01-21, 54 NRC 48 (2001)
Atomic Energy Act, 193
limitations on ownership of U.S. gaseous diffusion plants; DD-01-3, 54 NRC 314 (2001)
Atomic Energy Act, 193(f)
interest intended to be protected by; CLI-01-23, 54 NRC 274, 275-76 (2001)
interpretation of; CLI-01-23, 54 NRC 276-80 (2001)
legislative history of; DD-01-3, 54 NRC 314-16 (2001)
review requirements for amendment to certificate for gaseous diffusion plant, scope of; CLI-01-23, 54
NRC 270, 271, 273 (2001); DD-01-3, 54 NRC 311, 317-19 (2001)
Atomic Energy Act, 193(f)(2)(B)
applicability to amendments; CLI-01-23, 54 NRC 277 (2001)
interest requirement for seeking review of certificate amendment for gaseous diffusion plant, scope of;
CLI-01-23, 54 NRC 271 (2001); DD-01-3, 54 NRC 309, 319-22 (2001)
Atomic Energy Act, 1501, 1502
authority of U.S. Enrichment Corp. to develop and implement a strategic plan for privatization of
operation of gaseous diffusion plants; DD-01-3, 54 NRC 312 (2001)
Atomic Energy Act, 1502
construction of section 193(f) in tandem with; DD-01-3, 54 NRC 319 (2001)
Atomic Energy Act, 42 U.S.C. 2286, 2286g (1994)
purpose of Defense Nuclear Facilities Safety Board; LBP-01-35, 54 NRC 452 n.15 (2001)
Atomic Energy Act, 42 U.S.C. 2286a(1)
mandate of Defense Nuclear Facilities Safety Board; LBP-01-35, 54 NRC 453 (2001)
Atomic Energy Act, 1502(a)
grounds for denial of license or certificate of compliance; CLI-01-23, 54 NRC 279 n.30 (2001)
standard for implementation of privatization plan; DD-01-3, 54 NRC 312 (2001)
Atomic Energy Act, 1701
Commission determination necessary for issuance of amendment to certificate of compliance for gaseous
diffusion plant; CLI-01-23, 54 NRC 270 (2001)
framework for NRC oversight of enrichment facilities; DD-01-3, 54 NRC 312 (2001)
limitations on ownership of U.S. gaseous diffusion plants; DD-01-3, 54 NRC 314 (2001)
Atomic Energy Act, 1701(a)
NRC responsibilities regarding gaseous diffusion plants; DD-01-3, 54 NRC 312 (2001)
Atomic Energy Act, 1701(b)
NRC reporting requirements regarding status of gaseous diffusion plants; DD-01-3, 54 NRC 313 (2001)
Atomic Energy Act, 1701(b)(2)
frequency of recertification of gaseous diffusion plants; CLI-01-23, 54 NRC 278 n.26 (2001); DD-01-3,
54 NRC 319 n.31 (2001)
Atomic Energy Act, 1701(c)(4)
requirement for NRC to make periodic findings on status of operation of gaseous diffusion plants;
CLI-01-23, 54 NRC 278 (2001); DD-01-3, 54 NRC 319 (2001)
Atomic Energy Act, 1701(c)(4)(C)
limits on findings to be made by NRC on status of operation of gaseous diffusion plants; DD-01-3, 54
NRC 312 (2001)
Atomic Energy Act, 1701(d)
NRC determination necessary for operation of gaseous diffusion plants; DD-01-3, 54 NRC 313 (2001)
Atomic Energy Act, 1704
limitations on ownership of U.S. gaseous diffusion plants; DD-01-3, 54 NRC 314 (2001)
I-46
LEGAL CITATIONS INDEX
STATUTES
Energy Policy Act, 1312(a)
authority of U.S. Enrichment Corporation to transfer interest of the United States to the private sector;
DD-01-3, 54 NRC 313 (2001)
Energy Reorganization Act of 1974, 2(a)
purpose of establishing the Nuclear Regulatory Commission; CLI-01-23, 54 NRC 278 n.28 (2001)
Energy Reorganization Act of 1974, 201, 42 U.S.C. 5841
NRC responsibility for all licensing and regulatory functions set forth in the Atomic Energy Act;
DD-01-3, 54 NRC 321 n.38 (2001)
Executive Order 13085, §6
information collection responsibilities of Enrichment Oversight Committee; DD-01-3, 54 NRC 311 n.15
(2001)
Federal Land Policy and Management Act of 1976, 43 U.S.C. 1701-1784
consideration of alternatives when wilderness designation of area used for rail spur alignment is
speculative; LBP-01-34, 54 NRC 296 (2001)
Floyd D. Spence National Defense Authorization Act (Pub. L. No. 106-398)
transfer of site jurisdiction to Department of Energy; LBP-02-33, 54 NRC 292 (2001)
National Environmental Policy Act, 101, 102(1)
NRC Staff responsibility to objectively consider reasonable alternatives to proposed action in draft
environmental impact statement; LBP-01-34, 54 NRC 303 n.5 (2001)
National Environmental Policy Act, 42 U.S.C. 4321 et seq.
need for agency to take ‘‘hard look’’ into security risks inherent in operating centralized energy sources
that can function as radiological weaponry; CLI-01-27, 54 NRC 390 (2001)
rubblization as low-level waste burial; LBP-01-21, 54 NRC 102 (2001)
National Environmental Policy Act, 42 U.S.C. §4322 et seq.
support required for summary disposition motions; LBP-01-40, 54 NRC 533 (2001)
Pub. L. No. 104-134 (Apr. 26, 1996)
legislative history of AEA §193(f); DD-01-3, 54 NRC 316 (2001)
Pub. L. No. 104-134, 3116(b)(3)
frequency of recertification of gaseous diffusion plants; CLI-01-23, 54 NRC 278 n.26 (2001); DD-01-3,
54 NRC 319 n.31 (2001)
Pub. L. No. 107-40, 115 Stat. 224 (Sept. 20, 2001)
definition of 9/11 terrorist attacks as constituted by enemies of the United States; LBP-01-37, 54 NRC
486 (2001)
Strom Thurmond Defense Authorization Act for Fiscal Year 1999, 3134, 42 U.S.C. §5842 (Supp. V 1999)
authorization for DOE’s contractor to be licensed by the NRC; LBP-01-35, 54 NRC 457 (2001)
NRC jurisdiction over DOE facilities; LBP-01-35, 54 NRC 423, 428 (2001)
United States Constitution, art. III
applicability of ‘‘case or controversy’’ clause in NRC jurisdiction; LBP-01-32, 54 NRC 287 n.2 (2001)
USEC Privatization Act, 3103, 42 U.S.C. 2297h-1
public-interest considerations in providing reliable and economic domestic enrichment services; CLI-01-23,
54 NRC 274 n.12 (2001)
USEC Privatization Act, 3103(a) and 3104(b), 42 U.S.C. 2297h-1 and -2
reasons for privatizing domestic enrichment services; CLI-01-23, 54 NRC 274 n.15 (2001)
USEC Privatization Act, 3110, 42 U.S.C. 2297h-8
employee interests protected in privatization of domestic enrichment services; CLI-01-23, 54 NRC 274
n.13 (2001)
USEC Privatization Act, 3110(a)(5), 42 U.S.C. 2297h-8(a)(5)
treatment of employees in event of plant closure as a result of privatization; CLI-01-23, 54 NRC 274
n.14 (2001); DD-01-3, 54 NRC 309 (2001)
USEC Privatization Act, 3112
federal laws applicable to U.S. Enrichment Corporation; DD-01-3, 54 NRC 313 n.17 (2001)
I-47
LEGAL CITATIONS INDEX
STATUTES
USEC Privatization Act, 3116
findings to be made by NRC about whether issuance of a certificate would be inimical to a reliable and
economical domestic source of enrichment services; DD-01-3, 54 NRC 313 (2001)
frequency of NRC recertification of gaseous diffusion plants; DD-01-3, 54 NRC 312 n.16 (2001)
Wilderness Act of 1964, 16 U.S.C. 1131-1136
consideration of alternatives when wilderness designation of area used for rail spur alignment is
speculative; LBP-01-34, 54 NRC 296 (2001)
I-48
LEGAL CITATIONS INDEX
OTHERS
5 Charles A. Wright & Arthur R. Miller,Federal Practice and Procedure: Civil §1326
incorporation of other parties’ issues by reference; CLI-01-19, 54 NRC 132 n.16 (2001)
Cotter, Nuclear Licensing: Innovation Through Evolution in Administrative Hearings, 34 Admin. L. Rev.
497, 505, 508 (1982)
rationale for toughening contention pleading rule; LBP-01-39, 54 NRC 506 (2001)
Fed. R. Civ. P. 10(c)
incorporation of other parties’ issues by reference; CLI-01-19, 54 NRC 132 n.16 (2001)
Fed. R. Civ. P. 56
pre-discovery information to be provided by parties; CLI-01-20, 54 NRC 213 (2001)
standard for grant of summary disposition; LBP-01-30, 54 NRC 235 (2001)
H.R. Rep. No. 93-707, at 4 (1973)
purpose of establishing the Nuclear Regulatory Commission; CLI-01-23, 54 NRC 278 n.28 (2001)
H.R. Rep. No. 97-177, at 151 (1981)
basis and specificity requirements for contentions; CLI-01-24, 54 NRC 358 (2001)
foundation requirements for contentions; CLI-01-17, 54 NRC 19 (2001)
rationale for toughening contention pleading rule; LBP-01-39, 54 NRC 506 (2001)
H.R. Rep. No. 104-86, at 18 (1995)
purpose of establishing a private corporation for uranium enrichment services; DD-01-3, 54 NRC 316
n.25 (2001)
H.R. Rep. No. 104-86, at 20 (1995)
grounds for denial of license or certificate of compliance; CLI-01-23, 54 NRC 279 n.30 (2001)
limitations on ownership of U.S. gaseous diffusion plants; DD-01-3, 54 NRC 316 n.25 (2001)
H.R. Rep. No. 104-350, at 1015 (1995)
legislative history of AEA §193(f); DD-01-3, 54 NRC 316, 320 (2001)
S. Rep. No. 93-980, at 2 (1974)
purpose of establishing the Nuclear Regulatory Commission; CLI-01-23, 54 NRC 278 n.28 (2001)
S. Rep. No. 104-173 on S. 755 (1995)
use of a statute’s legislative history for guidance in interpreting latent ambiguities; DD-01-3, 54 NRC 322
(2001)
S. Rep. No. 104-173, at 20 (1995)
grounds for denial of license or certificate of compliance; CLI-01-23, 54 NRC 279 n.30 (2001)
interest intended to be protected by Atomic Energy Act §193(f); CLI-01-23, 54 NRC 274 n 11 (2001)
S. Rep. No. 104-173, at 50 (1995)
limitations on ownership of U.S. gaseous diffusion plants; DD-01-3, 54 NRC 314 (2001)
Sutherland Statutory Construction (5th ed.) 46.07 (1992 Supp.)
avoidance of absurd, unjust, or unintended result in literal construction of statutes; DD-01-3, 54 NRC 321
n.36 (2001)
Webster’s New Collegiate Dictionary (1977)
definition of reliable,’’ ‘‘economical,’’ and ‘‘inimical’’; DD-01-3, 54 NRC 320 (2001)
Webster’s Third New International Dictionary of the English Language 150 (4th ed. 1976)
definition of ‘‘average’’ member of critical group; LBP-01-25, 54 NRC 184 (2001)
Webster’s Third New International Dictionary of the English Language 376 (4th ed. 1976)
interpretation of ‘‘site characterization’’; LBP-01-21, 54 NRC 59 (2001)
I-49
LEGAL CITATIONS INDEX
OTHERS
Webster’s Third New International Dictionary 1802 (1993)
definition of ‘‘principal systems’’; LBP-01-35, 54 NRC 427-28 (2001)
I-50
SUBJECT INDEX
ABEYANCE OF PROCEEDINGS
health and safety considerations in; CLI-01-26, 54 NRC 376 (2001); CLI-01-27, 54 NRC 385 (2001);
CLI-01-28, 54 NRC 393 (2001)
pending review of terrorism-related standards; CLI-01-26, 54 NRC 376 (2001); CLI-01-27, 54 NRC 385
(2001); CLI-01-28, 54 NRC 393 (2001)
ACCIDENTS
along feed material’s transport routes as basis for standing to intervene in materials license amendment
proceeding; CLI-01-21, 54 NRC 247 (2001)
design-basis, threshold probability for independent spent fuel storage installation; CLI-01-22, 54 NRC 255
(2001)
See also Aircraft Crashes
AFFIDAVITS
establishing membership in organization for purpose of standing, need for; LBP-01-35, 54 NRC 403
(2001)
prepared for another license transfer proceeding, admissibility of issues in; CLI-01-19, 54 NRC 109
(2001)
AFFIDAVITS, EXPERT
in support of contentions; LBP-01-35, 54 NRC 403 (2001)
summary disposition as a tool for choosing between opposing views; LBP-01-39, 54 NRC 497 (2001)
AGING ANALYSIS
time-limited, structures, systems, and components subject to, for operating license renewal; CLI-01-20, 54
NRC 211 (2001)
AGING MANAGEMENT REVIEW
scope for operating license renewal; CLI-01-20, 54 NRC 211 (2001)
AIRCRAFT CRASHES
calculation of probability in Standard Review Plan; CLI-01-22, 54 NRC 255 (2001)
AMENDED PETITIONS
extension of time for filing; LBP-01-31, 54 NRC 242 (2001)
AMENDMENT
of contentions challenging environmental documents; LBP-01-22, 54 NRC 155 (2001); LBP-01-23, 54
NRC 163 (2001); LBP-01-26, 54 NRC 199 (2001)
of environmental impact statement, licensing board decision as; LBP-01-34, 54 NRC 293 (2001)
See also Materials License Amendment Proceeding; Operating License Amendment
APPELLATE REVIEW
abandonment of issues; CLI-01-21, 54 NRC 247 (2001)
Commission preference to consider fact-sensitive questions after development of full record by licensing
board; CLI-01-27, 54 NRC 385 (2001)
weight given to presiding officer’s standing determinations; CLI-01-21, 54 NRC 247 (2001)
See also Interlocutory Review; CLI-01-25, 54 NRC 368 (2001)
ATOMIC ENERGY ACT
Commission discretion in interpreting its obligations under; DD-01-3, 54 NRC 305 (2001)
definition of tailings from source material that is processed to extract uranium or thorium as 11e(2)
byproduct material; CLI-01-18, 54 NRC 27 (2001)
I-51
SUBJECT INDEX
interpretation of section 193(f); CLI-01-23,54 NRC 267 (2001); DD-01-3, 54 NRC 305 (2001)
interpretation of section 193(f)(2)(B); DD-01-3, 54 NRC 305 (2001)
interpretation of section 1701(c); CLI-01-23, 54 NRC 267 (2001)
review requirements for recertification of gaseous diffusion plant; CLI-01-23, 54 NRC 267 (2001)
BURDEN OF PERSUASION
on summary disposition motions; LBP-01-26, 54 NRC 199 (2001); LBP-01-30, 54 NRC 231 (2001);
LBP-01-34, 54 NRC 293 (2001)
BURDEN OF PROOF
on contentions; LBP-01-35, 54 NRC 403 (2001)
on summary disposition motions; LBP-01-22, 54 NRC 155 (2001); LBP-01-23, 54 NRC 163 (2001);
LBP-01-26, 54 NRC 199 (2001); LBP-01-30, 54 NRC 231 (2001); LBP-01-34, 54 NRC 293 (2001)
BYPRODUCT MATERIAL
11e(2), definition of tailings from source material that is processed to extract uranium or thorium as;
CLI-01-18, 54 NRC 27 (2001)
CAPACITY FACTOR
considerations in determining financial qualifications for license transfer; CLI-01-19, 54 NRC 109 (2001)
CERTIFICATE OF COMPLIANCE
eligibility for review of amendment under Part 76; CLI-01-23, 54 NRC 267 (2001); DD-01-3, 54 NRC
305 (2001)
COMMISSION
authority to use additional procedures in license transfer proceeding; CLI-01-19, 54 NRC 109 (2001)
statutory responsibility for licensing and regulation of nuclear facility in a timely and efficient manner;
CLI-01-28, 54 NRC 393 (2001)
CONFIDENTIAL INFORMATION
withholding of order from public release to review for; CLI-01-16, 54 NRC 1 (2001)
CONFLICT OF INTEREST
NRC receipt of funding from DOE alleged to be; LBP-01-35, 54 NRC 403 (2001)
CONSTRUCTION APPLICATION REQUEST
hearing procedures applicable to; LBP-01-35, 54 NRC 403 (2001)
CONTENTIONS
alleging lack of information in license application, pleading requirements for; LBP-01-21, 54 NRC 33
(2001)
amendment to question adequacy of draft environment impact statement; LBP-01-23, 54 NRC 163 (2001)
amendment to reflect changed circumstances between applicant’s environmental report and draft
environment impact statement; LBP-01-22, 54 NRC 155 (2001)
basis and specificity requirements; CLI-01-24, 54 NRC 349 (2001); LBP-01-35, 54 NRC 403 (2001)
burden of proof on; LBP-01-35, 54 NRC 403 (2001)
challenging applicant’s environmental report, amendment of; LBP-01-26, 54 NRC 199 (2001)
challenging Commission rules or regulations, litigability of; LBP-01-35, 54 NRC 403 (2001); LBP-01-37,
54 NRC 476 (2001)
construing with basis to determine scope of; LBP-01-26, 54 NRC 199 (2001)
contesting applicant’s environmental report viewed as challenge to Staff draft environmental impact
statement; LBP-01-23, 54 NRC 163 (2001)
dismissal with prejudice based on parties’ agreement to record their disagreement in applicant’s
environmental report; LBP-01-24, 54 NRC 174 (2001)
examination of bases in construction of; LBP-01-23, 54 NRC 163 (2001)
expert affidavit support for; LBP-01-35, 54 NRC 403 (2001)
fact-based arguments as means for complying with pleading requirements of section 2.714(b)(2);
LBP-01-35, 54 NRC 403 (2001)
findings of administrative law judge from another agency as expert opinion in support of; LBP-01-21, 54
NRC 33 (2001)
formulation modes for; LBP-01-23, 54 NRC 163 (2001); LBP-01-26, 54 NRC 199 (2001)
incorporation of other petitioners’ issues by reference in license transfer proceeding; CLI-01-19, 54 NRC
109 (2001)
I-52
SUBJECT INDEX
limits on licensing board authority to supply missing information or draw factual inferences on
petitioner’s behalf; LBP-01-35, 54 NRC 403 (2001)
limits on subject matter of; LBP-01-35, 54 NRC 403 (2001)
litigability of attacks on generic NRC requirements or generalized grievances about NRC policies;
CLI-01-24, 54 NRC 349 (2001)
merits determinations at admission stage; LBP-01-35, 54 NRC 403 (2001)
pleading requirements at admission stage; LBP-01-21, 54 NRC 33 (2001); LBP-01-35, 54 NRC 403
(2001)
pleading requirements on appeal; CLI-01-17, 54 NRC 3 (2001)
purpose of pleading criteria of section 2.714; LBP-01-35, 54 NRC 403 (2001)
reference to a document, without more, as basis for; LBP-01-35, 54 NRC 403 (2001)
responsibility for licensing board misinterpretation or misapprehension of; LBP-01-35, 54 NRC 403
(2001)
specificity required in citing documents in response to; LBP-01-35, 54 NRC 403 (2001)
Staff performance as subject of; LBP-01-35, 54 NRC 403 (2001)
Staff requests for additional information as support for; LBP-01-21, 54 NRC 33 (2001); LBP-01-35, 54
NRC 403 (2001)
use of supplementary information filed by applicant in response to Staff request for additional information
at initial pleading stage to defeat; LBP-01-35, 54 NRC 403 (2001)
CONTENTIONS, LATE-FILED
as means of addressing possible changes in terrorism-related standards; CLI-01-26, 54 NRC 376 (2001);
CLI-01-27, 54 NRC 385 (2001)
assistance in development of sound record; LBP-01-37, 54 NRC 476 (2001)
availability of other means or parties to protect a petitioner’s interests; LBP-01-37, 54 NRC 476 (2001)
balancing of five factors for admission of; LBP-01-37, 54 NRC 476 (2001)
based on safety evaluation report, deadline for submission; LBP-01-21, 54 NRC 33 (2001)
broadening the issues and delaying the proceeding; LBP-01-37, 54 NRC 476 (2001)
good cause for delay, test for determining; LBP-01-37, 54 NRC 476 (2001)
CRITICAL GROUP
calculation of arithmetic mean for dose to average member of; LBP-01-25, 54 NRC 177 (2001)
definition of; CLI-01-25, 54 NRC 368 (2001)
CUMULATIVE IMPACT ISSUE
need to consider, in environmental impact statement, cumulative effect of license extension together with
as-yet unfiled amendment permitting use of plutonium/MOX fuel; CLI-01-27, 54 NRC 385 (2001)
DEADLINES
for response to filings served by expedited means; CLI-01-20, 54 NRC 211 (2001)
DECISIONS
licensing board, as amendment of environmental impact statement; LBP-01-34, 54 NRC 293 (2001)
DECOMISSIONING
to Greenfield conditions, financial qualifications considerations; CLI-01-19, 54 NRC 109 (2001)
DECOMMISSIONING FUNDING
calculation of prepayment amount; CLI-01-19, 54 NRC 109 (2001)
interpretation of 10 C.F.R. 50.75; CLI-01-19, 54 NRC 109 (2001)
showing necessary to demonstrate compliance with requirements for license transfer; CLI-01-19, 54 NRC
109 (2001)
DEFINITION
of ‘‘critical group’’; CLI-01-25, 54 NRC 368 (2001)
DESIGN BASIS
credible events; CLI-01-22, 54 NRC 255 (2001)
for independent spent fuel storage installation; CLI-01-22, 54 NRC 255 (2001)
DISCOVERY
against NRC Staff; CLI-01-20, 54 NRC 211 (2001); LBP-01-21, 54 NRC 33 (2001)
proper use of; LBP-01-39, 54 NRC 497 (2001)
I-53
SUBJECT INDEX
DISCRIMINATION
against contract security employee for refusal to work because of fatigue; DD-01-5, 54 NRC 340 (2001)
DISMISSAL
of contentions with prejudice based on parties’ agreement to record their disagreement in applicant’s
environmental report; LBP-01-24, 54 NRC 174 (2001)
DOCUMENTATION
of plant performance problems, licensee responsibility for; DD-01-4, 54 NRC 326 (2001)
DOSE MODELING
calculation methodologies for license termination plan; LBP-01-21, 54 NRC 33 (2001)
calculation of arithmetic mean for average member of critical group; LBP-01-25, 54 NRC 177 (2001)
critical group for; CLI-01-25, 54 NRC 368 (2001)
DRAFT ENVIRONMENT IMPACT STATEMENT
amendment of contentions challenging environmental report to question adequacy of analysis in;
LBP-01-22, 54 NRC 155 (2001); LBP-01-23, 54 NRC 163 (2001)
impacts of fuel storage facility on local wildlife, adequacy of discussion in; LBP-01-30, 54 NRC 231
(2001)
NRC Staff responsibility to independently evaluate and be responsible for all information used in;
LBP-01-34, 54 NRC 293 (2001); LBP-01-38, 54 NRC 490 (2001)
EMERGENCY RESPONSE PLANS
appropriateness for license transfers; CLI-01-19, 54 NRC 109 (2001)
EMPLOYMENT CONDITIONS
conflict between NRC regulations and; DD-01-5, 54 NRC 340 (2001)
ENVIRONMENTAL IMPACT STATEMENT
consideration of alternatives in; LBP-01-34, 54 NRC 293 (2001)
licensing board decision as amendment of; LBP-01-34, 54 NRC 293 (2001)
need to consider cumulative effect of license extension together with as-yet unfiled amendment permitting
use of plutonium/MOX fuel; CLI-01-27, 54 NRC 385 (2001)
of other federal agencies, tiering, adoption, or incorporation into Commission’s EIS; LBP-01-35, 54 NRC
403 (2001)
See also Draft Environmental Impact Statement
ENVIRONMENTAL IMPACTS
of proposed action, legal standard under NEPA to determine which should be analyzed; LBP-01-35, 54
NRC 403 (2001)
of transportation of plutonium to fuel fabrication facility; LBP-01-35, 54 NRC 403 (2001)
of waste stream from aqueous polishing process to remove gallium; LBP-01-35, 54 NRC 403 (2001)
ENVIRONMENTAL ISSUES
litigable in operating license renewal proceeding; CLI-01-20, 54 NRC 211 (2001)
ENVIRONMENTAL REPORT
amendment of contention to reflect changed circumstances in draft environmental impact statement;
LBP-01-22, 54 NRC 155 (2001)
amendment of contentions challenging adequacy of; LBP-01-23, 54 NRC 163 (2001); LBP-01-26, 54
NRC 199 (2001)
impacts of fuel storage facility on local wildlife, adequacy of discussion in; LBP-01-30, 54 NRC 231
(2001)
need for analysis of foreseeable impacts of malevolent acts of terrorism in; LBP-01-35, 54 NRC 403
(2001)
parties’ agreement to record their disagreement regarding permits, licenses, and approvals in connection
with license application for independent spent fuel storage installation in; LBP-01-24, 54 NRC 174
(2001)
ENVIRONMENTAL REVIEW
for license renewal, scope of; CLI-01-17, 54 NRC 3 (2001)
EPA STANDARDS
licensing board authority to enforce; LBP-01-21, 54 NRC 33 (2001)
I-54
SUBJECT INDEX
EXPERT TESTIMONY
summary disposition as a tool for choosing between opposing views; LBP-01-39, 54 NRC 497 (2001)
See also Affidavits, Expert
EXTENSION OF TIME
for filing amended and supplemented petitions, standard for grant of; LBP-01-31, 54 NRC 242 (2001)
FATIGUE
worker, discrimination for self-reporting of; DD-01-5, 54 NRC 340 (2001)
FINANCIAL ASSURANCE
of DOE funding of facility, litigability of; LBP-01-35, 54 NRC 403 (2001)
FINANCIAL QUALIFICATIONS
capacity-factor considerations in revenue projections for license transfer; CLI-01-19, 54 NRC 109 (2001)
cost considerations for license transfer; CLI-01-19, 54 NRC 109 (2001)
creditworthiness of guarantor, consideration for license transfer; CLI-01-19, 54 NRC 109 (2001)
effect of extended shutdown on retained earnings, consideration for license transfer; CLI-01-19, 54 NRC
109 (2001)
for decommissioning to Greenfield conditions; CLI-01-19, 54 NRC 109 (2001)
for disposal of spent fuel, need for license transfer application to address; CLI-01-19, 54 NRC 109
(2001)
information to be included in license transfer application; DD-01-4, 54 NRC 326 (2001)
reasonableness and reliability of revenue projections for license transfer; CLI-01-19, 54 NRC 109 (2001)
requirements for license transfer to owner and operator that is not an electric utility; CLI-01-19, 54 NRC
109 (2001)
FITNESS-FOR-DUTY PROGRAMS
licensee policies for addressing self-reported mental stress, fatigue, and illness; DD-01-5, 54 NRC 340
(2001)
FUEL FABRICATION FACILITIES
controlled areas of; LBP-01-35, 54 NRC 403 (2001)
national security interests in licensing of; CLI-01-28, 54 NRC 393 (2001)
safeguards and physical protection considerations in design of; LBP-01-35, 54 NRC 403 (2001)
seismic design considerations; LBP-01-35, 54 NRC 403 (2001)
GASEOUS DIFFUSION PLANT
certificate amendment, eligibility for review under Part 76; CLI-01-23, 54 NRC 267 (2001); DD-01-3, 54
NRC 305 (2001)
standing to intervene on closure of; CLI-01-23, 54 NRC 267 (2001)
GENERIC POLICY ISSUES
NRC process for addressing concerns about fitness-for-duty programs; DD-01-5, 54 NRC 340 (2001)
GEOLOGIC REPOSITORY
operations area, design-basis events at; CLI-01-22, 54 NRC 255 (2001)
HEARING RIGHTS
on licensee actions or changes in procedures relating to technical specifications; CLI-01-24, 54 NRC 349
(2001)
HISTORICAL SITE ASSESSMENT
requirement in license termination plan; LBP-01-21, 54 NRC 33 (2001)
INDEPENDENT SPENT FUEL STORAGE INSTALLATION
design basis for; CLI-01-22, 54 NRC 255 (2001)
physical security considerations in light of 9/11 terrorist attacks; CLI-01-26, 54 NRC 376 (2001);
LBP-01-37, 54 NRC 476 (2001)
public health and safety risks posed by; CLI-01-22, 54 NRC 255 (2001)
seismic analysis for; LBP-01-39, 54 NRC 497 (2001)
site selection criteria applicable to; LBP-01-26, 54 NRC 199 (2001)
INJURY-IN-FACT
minor exposure to radiation within regulatory limits as; LBP-01-35, 54 NRC 403 (2001)
traceable to operating license amendment, increase in traffic of low-level radioactive materials as;
CLI-01-18, 54 NRC 27 (2001)
I-55
SUBJECT INDEX
INTERVENTION
in license transfer proceeding, standard for grant of; CLI-01-19, 54 NRC 109 (2001)
INTERESTED STATE
change in status of state utility department from full party status to; LBP-01-36, 54 NRC 474 (2001)
INTERLOCUTORY REVIEW
legal error as basis for; CLI-01-25, 54 NRC 368 (2001)
NRC policy on; CLI-01-25, 54 NRC 368 (2001)
standard for grant of; CLI-01-25, 54 NRC 368 (2001)
INTERVENTION PETITIONER
right to seek relief from Commission without formal party status; CLI-01-28, 54 NRC 393 (2001)
INTERVENTION PETITIONS
construction in light most favorable to petitioner; LBP-01-35, 54 NRC 403 (2001)
pleading requirements for; CLI-01-21, 54 NRC 247 (2001)
IRREPARABLE HARM
burden of litigation as; CLI-01-25, 54 NRC 368 (2001)
standard for grant of interlocutory review; CLI-01-25, 54 NRC 368 (2001)
JURISDICTION
NRC, over DOE facilities; LBP-01-35, 54 NRC 403 (2001)
over power purchase contracts between private parties; CLI-01-19, 54 NRC 109 (2001)
transfer to Department of Energy; LBP-02-33, 54 NRC 291 (2001)
LATE-FILING STANDARDS
applicability to requests to incorporate another petitioner’s issues in license transfer proceeding;
CLI-01-19, 54 NRC 109 (2001)
LEGAL ERROR
as basis for interlocutory review; CLI-01-25, 54 NRC 368 (2001)
LIABILITY
for radiological materials deposited offsite, effect of license transfer on; CLI-01-19, 54 NRC 109 (2001)
LICENSE RENEWAL
NEPA review, scope of; CLI-01-17, 54 NRC 3 (2001)
safety review, scope of; CLI-01-17, 54 NRC 3 (2001)
See also Operating License Renewal Proceeding
LICENSE TERMINATION PLAN
contents of; LBP-01-21, 54 NRC 33 (2001)
mootness of proceeding based on withdrawal of; LBP-01-32, 54 NRC 283 (2001)
purpose of process; LBP-01-21, 54 NRC 33 (2001)
scope of proceeding; LBP-01-21, 54 NRC 33 (2001)
scope of work under; LBP-01-21, 54 NRC 33 (2001)
use of guidance documents to interpret what constitutes adequate site characterization; LBP-01-21, 54
NRC 33 (2001)
LICENSE TRANSFER
decommissioning funding requirements for; CLI-01-19, 54 NRC 109 (2001)
effect on liability for radiological materials deposited offsite; CLI-01-19, 54 NRC 109 (2001)
emergency planning requirements for; CLI-01-19, 54 NRC 109 (2001)
incorporation of other petitioners’ issues by reference; CLI-01-19, 54 NRC 109 (2001)
NRC authority to ensure adequate protection of health and safety and the environment irrespective of
contract provisions between parties; CLI-01-19, 54 NRC 109 (2001)
processing as license amendment; DD-01-4, 54 NRC 326 (2001)
public interest considerations, litigability of; CLI-01-19, 54 NRC 109 (2001)
request for denial because of performance problems; DD-01-4, 54 NRC 326 (2001)
technical qualifications for; CLI-01-19, 54 NRC 109 (2001)
time period encompassed by financial data; CLI-01-19, 54 NRC 109 (2001)
to owner and operator that is not an electric utility, financial qualification requirements for; CLI-01-19,
54 NRC 109 (2001)
I-56
SUBJECT INDEX
verification of Final Safety Analysis Report and design basis documentation to meet requirements for;
CLI-01-19, 54 NRC 109 (2001)
LICENSE TRANSFER APPLICATIONS
effect of omissions or errors in financial data; CLI-01-19, 54 NRC 109 (2001)
financial qualifications information to be included in; DD-01-4, 54 NRC 326 (2001)
LICENSE TRANSFER PROCEEDINGS
applicability of formal hearing procedures in; CLI-01-19, 54 NRC 109 (2001)
applicability of late-filing standards to requests to incorporate another petitioner’s issues in; CLI-01-19, 54
NRC 109 (2001)
Commission authority to use additional procedures in; CLI-01-19, 54 NRC 109 (2001)
litigability of Staff performance in plant oversight; CLI-01-19, 54 NRC 109 (2001)
pleading requirements for admission of issues in; CLI-01-19, 54 NRC 109 (2001)
standard for grant of intervention in; CLI-01-19, 54 NRC 109 (2001)
waiver of regulations to allow Subpart G procedures in; CLI-01-19, 54 NRC 109 (2001)
LICENSEE EVENT REPORTS
documentation of plant performance problems in; DD-01-4, 54 NRC 326 (2001)
LICENSEE PERFORMANCE
need for enforcement action and advanced oversight of plant because of deficiencies in; DD-01-4, 54
NRC 326 (2001)
LICENSING BOARDS
authority to direct Staff in performance of nonadjudicatory functions; LBP-01-29, 54 NRC 223 (2001)
authority to enforce EPA standards; LBP-01-21, 54 NRC 33 (2001)
authority to supply missing information or draw factual inferences on intervention petitioner’s behalf,
limits on; LBP-01-35, 54 NRC 403 (2001)
public interest finding on settlement agreements; LBP-01-27, 54 NRC 219 (2001); LBP-01-36, 54 NRC
474 (2001)
responsibility for development of a full record; CLI-01-27, 54 NRC 385 (2001)
role in summary disposition; LBP-01-39, 54 NRC 497 (2001)
weight given to views on rulings that will benefit from early review; CLI-01-25, 54 NRC 368 (2001)
LIST OF UNPLANNED RESIDUES
comprehensiveness for license termination plan; LBP-01-21, 54 NRC 33 (2001)
MANAGEMENT CHARACTER
appropriate basis for adjudication in a licensing proceeding; CLI-01-24, 54 NRC 349 (2001)
MATERIALS LICENSE AMENDMENT PROCEEDING
judicial concepts of standing applied in; CLI-01-21, 54 NRC 247 (2001)
litigable issues limited to those that establish a distinct new harm or threat apart from activities already
licensed; CLI-01-21, 54 NRC 247 (2001)
standing to intervene in; CLI-01-18, 54 NRC 27 (2001)
MATERIALS LICENSE PROCEEDING
scope of litigable issues; LBP-01-35, 54 NRC 403 (2001)
MISREPRESENTATION OF MATERIAL FACTS
on steam generator analysis and electric bus analysis; DD-01-4, 54 NRC 326 (2001)
MOOTNESS
of proceeding based on withdrawal of license termination plan; LBP-01-32, 54 NRC 283 (2001)
MOTIONS TO STRIKE
circumstances appropriate for; LBP-01-39, 54 NRC 497 (2001)
NATIONAL ENVIRONMENTAL POLICY ACT
amendment of contentions addressing deficiencies in environmental report and draft environmental impact
statement; LBP-01-23, 54 NRC 163 (2001)
consideration of alternatives; LBP-01-34, 54 NRC 293 (2001)
environmental siting alternatives analysis applicable to independent spent fuel storage installation;
LBP-01-26, 54 NRC 199 (2001)
rule of reason in determining which environmental impacts to consider for a proposed action; LBP-01-35,
54 NRC 403 (2001)
I-57
SUBJECT INDEX
scope of contentions challenging substance of analysis in applicant’s environmental report; LBP-01-26, 54
NRC 199 (2001)
tiering of environmental impact statements; LBP-01-35, 54 NRC 403 (2001)
NATIONAL SECURITY
interests in licensing of mixed oxide fuel fabrication facility; CLI-01-28, 54 NRC 393 (2001)
NEPA REVIEW
Category 1 and Category 2 issues addressed for license renewal; CLI-01-17, 54 NRC 3 (2001)
NOTICE OF HEARING
limits on scope of proceeding in; LBP-01-35, 54 NRC 403 (2001)
NRC AUTHORITY
to ensure adequate protection of health and safety and the environment irrespective of contract provisions
between license transfer parties; CLI-01-19, 54 NRC 109 (2001)
NRC FOCUS PLANTS
request that Indian Point Unit 2 remain on list of; DD-01-4, 54 NRC 326 (2001)
NRC POLICY
litigability of generalized grievances about; CLI-01-24, 54 NRC 349 (2001)
on interlocutory review; CLI-01-25, 54 NRC 368 (2001)
on stay of proceedings pending completion of OI investigation; LBP-01-29, 54 NRC 223 (2001)
See also Generic Policy Issues
NRC STAFF
discovery against; CLI-01-20, 54 NRC 211 (2001); LBP-01-21, 54 NRC 33 (2001)
licensing board authority over performance of nonadjudicatory functions; LBP-01-29, 54 NRC 223 (2001)
litigability of qualifications of; LBP-01-35, 54 NRC 403 (2001)
performance of analyses as subject of contention; LBP-01-35, 54 NRC 403 (2001)
responsibility to independently evaluate and be responsible for all information used in DEIS; LBP-01-34,
54 NRC 293 (2001); LBP-01-38, 54 NRC 490 (2001)
NRC STAFF REVIEW
experience to regulate plutonium fuel processing activities, litigability of contention alleging inadequacies
in; LBP-01-35, 54 NRC 403 (2001)
for license renewals, scope of; CLI-01-17, 54 NRC 3 (2001)
NUCLEAR REGULATORY COMMISSION
discretion in interpreting its obligations under Atomic Energy Act; DD-01-3, 54 NRC 305 (2001)
See also Commission
OI INVESTIGATIONS
stay of proceedings pending completion of; LBP-01-29, 54 NRC 223 (2001)
OPERATING LICENSE AMENDMENT
processing of license transfer as; DD-01-4, 54 NRC 326 (2001)
showing necessary to demonstrate injury-in-fact; CLI-01-18, 54 NRC 27 (2001)
OPERATING LICENSE RENEWAL PROCEEDING
scope of litigable issues; CLI-01-20, 54 NRC 211 (2001)
ORDERS
withholding from public release to review for confidential information; CLI-01-16, 54 NRC 1 (2001)
See also Decisions; Referral Order
PARTY STATUS
seeking relief from Commission without; CLI-01-28, 54 NRC 393 (2001)
PEREGRINE FALCONS
impacts of fuel storage facility on local nests; LBP-01-30, 54 NRC 231 (2001)
PERVASIVE EFFECT
standard for grant of interlocutory review; CLI-01-25, 54 NRC 368 (2001)
PHYSICAL SECURITY
considerations for independent spent fuel storage installation in light of 9/11 terrorist attacks; CLI-01-26,
54 NRC 376 (2001)
considerations in design of fuel fabrication facilities; LBP-01-35, 54 NRC 403 (2001)
for independent spent fuel storage installation; LBP-01-37, 54 NRC 476 (2001)
I-58
SUBJECT INDEX
PLUTONIUM
transportation to fuel fabrication facility, need to consider environmental impacts of; LBP-01-35, 54 NRC
403 (2001)
POCKET GOPHERS
impacts of fuel storage facility on; LBP-01-30, 54 NRC 231 (2001)
POHL’S MILKVETCH
impacts of fuel storage facility on; LBP-01-30, 54 NRC 231 (2001)
POWER PURCHASE AGREEMENTS
jurisdiction to consider legality under state law; CLI-01-19, 54 NRC 109 (2001)
PRECEDENTIAL EFFECT
of NRC guidance documents; CLI-01-23, 54 NRC 267 (2001); DD-01-3, 54 NRC 305 (2001)
PRESIDING OFFICER
weight given, on appeal, to standing determinations of; CLI-01-21, 54 NRC 247 (2001)
PUBLIC INTEREST GROUP
standard for grant of standing to intervene; LBP-01-21, 54 NRC 33 (2001)
PUBLIC INTEREST ISSUES
litigability in license transfer proceedings; CLI-01-19, 54 NRC 109 (2001)
QUALIFICATIONS
of NRC Staff, litigability of; LBP-01-35, 54 NRC 403 (2001)
See also Financial Qualifications; Technical Qualifications
RADIOACTIVE MATERIALS TRANSPORT
increase in traffic of low-level materials as injury traceable to license amendment; CLI-01-18, 54 NRC 27
(2001)
RADIOACTIVE WASTE
from aqueous polishing process to remove gallium; LBP-01-35, 54 NRC 403 (2001)
RADIOLOGICAL CONTAMINATION
of wells and aquifer, potential from independent spent fuel storage installation; LBP-01-40, 54 NRC 526
(2001)
recontamination of released areas; LBP-01-21, 54 NRC 33 (2001)
RECONSIDERATION
support for motions for; LBP-01-38, 54 NRC 490 (2001)
REFERENCE MAN
average member of critical group compared to; LBP-01-25, 54 NRC 177 (2001)
REFERRAL OF RULING
criteria applied for review of; CLI-01-25, 54 NRC 368 (2001)
novel issues that will benefit from early review; CLI-01-25, 54 NRC 368 (2001)
on admissibility of late-filed contention on terrorism-related security concerns; LBP-01-37, 54 NRC 476
(2001)
REFERRAL ORDER
limits on scope of proceeding in; LBP-01-35, 54 NRC 403 (2001)
REGULATIONS
challenge to 10 C.F.R. 50.33(k)(1), litigability of; CLI-01-19, 54 NRC 109 (2001)
construction using guidance documents; LBP-01-21, 54 NRC 33 (2001)
flexibility to deal with new developments during pendency of proceeding; CLI-01-28, 54 NRC 393 (2001)
forum for litigation of challenges to; DD-01-4, 54 NRC 326 (2001)
interpretation of ‘‘average member’’ in 10 C.F.R. 20.1402; LBP-01-25, 54 NRC 177 (2001)
interpretation of 10 C.F.R. 2.714(b)(2), (d)(2); LBP-01-21, 54 NRC 33 (2001)
interpretation of 10 C.F.R. 2.714(b)(2)(ii); LBP-01-21, 54 NRC 33 (2001)
interpretation of 10 C.F.R. 50.36; CLI-01-24, 54 NRC 349 (2001)
interpretation of 10 C.F.R. 50.75; CLI-01-19, 54 NRC 109 (2001)
interpretation of 10 C.F.R. 50.82(a)(9)(ii)(A); LBP-01-21, 54 NRC 33 (2001)
interpretation of 10 C.F.R. 50.82(a)(9)(ii)(D); LBP-01-21, 54 NRC 33 (2001)
interpretation of 10 C.F.R. 50.82(a)(9), (10); LBP-01-21, 54 NRC 33 (2001)
interpretation of 10 C.F.R. 72.102(e); LBP-01-26, 54 NRC 199 (2001)
I-59
SUBJECT INDEX
interpretation of 10 C.F.R. Part 76; CLI-01-23, 54 NRC 267 (2001)
interpretation of 10 C.F.R. 76.45(a); DD-01-3, 54 NRC 305 (2001)
interpretation of 10 C.F.R. 76.70(b); DD-01-3, 54 NRC 305 (2001)
litigability of challenges to; CLI-01-19, 54 NRC 109 (2001); CLI-01-24, 54 NRC 349 (2001); LBP-01-35,
54 NRC 403 (2001)
weight given to guidance documents in construing; LBP-01-25, 54 NRC 177 (2001)
REGULATORY GUIDES
precedential effect of; CLI-01-23, 54 NRC 267 (2001); DD-01-3, 54 NRC 305 (2001)
weight given documents that assist in compliance with applicable regulations; CLI-01-22, 54 NRC 255
(2001)
REOPENING A RECORD
as means of addressing possible changes in terrorism-related standards; CLI-01-26, 54 NRC 376 (2001)
REQUESTS FOR ADDITIONAL INFORMATION
as basis for contention, adequacy for admission; LBP-01-35, 54 NRC 403 (2001)
REVIEW
under Part 76 for gaseous diffusion plant certificate amendment, eligibility for; CLI-01-23, 54 NRC 267
(2001); DD-01-3, 54 NRC 305 (2001)
See also Aging Management Review; Appellate Review; Environmental Review; Interlocutory Review;
NEPA Review; NRC Staff Review; Safety Review
RULES OF PRACTICE
abandonment of issues on appeal; CLI-01-21, 54 NRC 247 (2001)
abeyance of proceeding pending review of terrorism-related standards; CLI-01-26, 54 NRC 376 (2001);
CLI-01-27, 54 NRC 385 (2001); CLI-01-28, 54 NRC 393 (2001)
admissibility of contentions challenging NRC regulations; LBP-01-37, 54 NRC 476 (2001)
affidavit support for representational standing to intervene, need for; LBP-01-35, 54 NRC 403 (2001)
amendment of contentions; LBP-01-22, 54 NRC 155 (2001); LBP-01-23, 54 NRC 163 (2001)
authorization of member for representational standing to intervene; LBP-01-35, 54 NRC 403 (2001)
availability of means or parties other than late-filed contention to protect a petitioner’s interests;
LBP-01-37, 54 NRC 476 (2001)
balancing of five factors for admission of late-filed contention; LBP-01-37, 54 NRC 476 (2001)
basis for adjudication of management character in a licensing proceeding; CLI-01-24, 54 NRC 349 (2001)
burden of persuasion and proof on summary disposition motions; LBP-01-22, 54 NRC 155 (2001);
LBP-01-23, 54 NRC 163 (2001)
burden of proof on contentions; LBP-01-35, 54 NRC 403 (2001)
burden on proponents and opponents of summary disposition; LBP-01-26, 54 NRC 199 (2001);
LBP-01-30, 54 NRC 231 (2001); LBP-01-34, 54 NRC 293 (2001); LBP-01-40, 54 NRC 526 (2001)
Commission obligation to achieve expeditious decisionmaking; CLI-01-26, 54 NRC 376 (2001);
CLI-01-27, 54 NRC 385 (2001)
Commission position on summary disposition motions; LBP-01-39, 54 NRC 497 (2001)
Commission preference to consider fact-sensitive questions after development of full record by licensing
board; CLI-01-27, 54 NRC 385 (2001)
construing contentions; LBP-01-26, 54 NRC 199 (2001)
construing intervention petition in light most favorable to petitioner; LBP-01-35, 54 NRC 403 (2001)
contention formulation modes; LBP-01-26, 54 NRC 199 (2001)
contentions alleging lack of information in license application, pleading requirements for; LBP-01-21, 54
NRC 33 (2001)
contribution of late-filed contention to development of sound record; LBP-01-37, 54 NRC 476 (2001)
discovery against NRC Staff; LBP-01-21, 54 NRC 33 (2001)
discovery, proper use of; LBP-01-39, 54 NRC 497 (2001)
examination of bases in construing contentions; LBP-01-23, 54 NRC 163 (2001)
expert affidavit support for contentions; LBP-01-35, 54 NRC 403 (2001)
extension of time for filing amended and supplemented petitions; LBP-01-31, 54 NRC 242 (2001)
fact-based arguments as means for complying with section 2.714(b)(2); LBP-01-35, 54 NRC 403 (2001)
flexibility to deal with new developments during pendency of proceeding; CLI-01-28, 54 NRC 393 (2001)
I-60
SUBJECT INDEX
formal hearing procedures in Subpart M proceedings; CLI-01-19, 54 NRC 109 (2001)
formulation modes for contentions; LBP-01-23, 54 NRC 163 (2001)
good cause for late filing of contentions; LBP-01-37, 54 NRC 476 (2001)
injury-in-fact standard for standing to intervene; CLI-01-21, 54 NRC 247 (2001)
judicial concepts of standing applied in NRC proceedings; LBP-01-21, 54 NRC 33 (2001)
late-filing standards applied to requests to incorporate another petitioner’s issues in license transfer
proceeding; CLI-01-19, 54 NRC 109 (2001)
licensing board authority to supply missing information or draw factual inferences on intervention
petitioner’s behalf, limits on; LBP-01-35, 54 NRC 403 (2001)
licensing board misinterpretation or misapprehension of petitioner’s contentions, responsibility for;
LBP-01-35, 54 NRC 403 (2001)
licensing board role in summary disposition; LBP-01-39, 54 NRC 497 (2001)
litigability of attacks on generic NRC requirements or generalized grievances about NRC policies;
CLI-01-24, 54 NRC 349 (2001)
litigability of challenge to 10 C.F.R. 50.33(k)(1); CLI-01-19, 54 NRC 109 (2001)
litigability of challenges to Commission rules; LBP-01-35, 54 NRC 403 (2001)
litigation burden as irreparable harm for purpose of obtaining stay of proceeding; CLI-01-28, 54 NRC
393 (2001)
merits determinations on contentions at admission stage; LBP-01-35, 54 NRC 403 (2001)
mootness of proceeding based on withdrawal of license termination plan; LBP-01-32, 54 NRC 283 (2001)
motions to strike; LBP-01-39, 54 NRC 497 (2001)
petitions for review under Part 76; CLI-01-23,54 NRC 267 (2001); DD-01-3, 54 NRC 305 (2001)
pleading requirements for contentions; CLI-01-17, 54 NRC 3 (2001); CLI-01-24, 54 NRC 349 (2001);
LBP-01-21, 54 NRC 33 (2001; LBP-01-35, 54 NRC 403 (2001)
pleading requirements for intervention petitions; CLI-01-21, 54 NRC 247 (2001)
precedential effect of NRC guidance documents; CLI-01-23, 54 NRC 267 (2001); DD-01-3, 54 NRC 305
(2001)
purpose of section 2.714; LBP-01-35, 54 NRC 403 (2001)
reference to a document, without more, as basis for contention; LBP-01-35, 54 NRC 403 (2001)
referral of ruling to Commission; LBP-01-37, 54 NRC 476 (2001)
right of petitioners to submit position statements and written statements on contentions other than their
own; CLI-01-19, 54 NRC 109 (2001)
scope of contentions challenging applicant’s environmental report; LBP-01-26, 54 NRC 199 (2001)
scope of issues litigable under Subpart M; CLI-01-19, 54 NRC 109 (2001)
scope of license termination plan proceeding; LBP-01-21, 54 NRC 33 (2001)
scope of materials license proceeding; LBP-01-35, 54 NRC 403 (2001)
scope of operating license renewal proceeding; CLI-01-20, 54 NRC 211 (2001)
seeking relief without formal party status; CLI-01-28, 54 NRC 393 (2001)
significance versus delay of proceeding in admitting late-filed contention; LBP-01-37, 54 NRC 476 (2001)
specificity and basis requirements for admission of contentions; LBP-01-35, 54 NRC 403 (2001)
specificity required in citing documents in response to contentions; LBP-01-35, 54 NRC 403 (2001)
Staff authority; LBP-01-29, 54 NRC 223 (2001)
Staff performance as subject of contentions; LBP-01-35, 54 NRC 403 (2001)
Staff request for additional information as basis for contention, adequacy of; LBP-01-35, 54 NRC 403
(2001)
standing to intervene in materials licensing proceedings; CLI-01-21, 54 NRC 247 (2001); LBP-01-35, 54
NRC 403 (2001)
standing to intervene in Subpart L proceeding; CLI-01-18, 54 NRC 27 (2001); LBP-01-35, 54 NRC 403
(2001)
standing to intervene on a revised application; LBP-01-32, 54 NRC 283 (2001)
standing to intervene on Part 76 certificate amendment for gaseous diffusion plant; CLI-01-23, 54 NRC
267 (2001); DD-01-3, 54 NRC 305 (2001)
stay of adjudicatory proceedings; LBP-01-29, 54 NRC 223 (2001)
subject matter of contentions, limits on; LBP-01-35, 54 NRC 403 (2001)
I-61
SUBJECT INDEX
summary disposition as a tool for choosing between opposing expert affidavits; LBP-01-39, 54 NRC 497
(2001)
support for contentions; LBP-01-21, 54 NRC 33 (2001)
support for motions for reconsideration; LBP-01-38, 54 NRC 490 (2001)
use of supplementary information filed by applicant in response to Staff request for additional information
to defeat contention at initial pleading stage; LBP-01-35, 54 NRC 403 (2001)
view of contention contesting applicant’s environmental report as challenge to Staff draft environmental
impact statement; LBP-01-23, 54 NRC 163 (2001)
waiver of Commission rules; CLI-01-19, 54 NRC 109 (2001)
waiver of regulations to allow Subpart G procedures in license transfer proceedings; CLI-01-19, 54 NRC
109 (2001)
weight given, on appeal, to presiding officer’s standing determinations; CLI-01-21, 54 NRC 247 (2001)
SAFEGUARDS
considerations in design of fuel fabrication facilities; LBP-01-35, 54 NRC 403 (2001)
SAFETY EVALUATION REPORT
deadline for submission of late-filed contentions based on; LBP-01-21, 54 NRC 33 (2001)
SAFETY REVIEW
re-analysis of current licensing basis during license renewal process; CLI-01-17, 54 NRC 3 (2001)
SCHEDULING
milestones for operating license renewal proceedings; CLI-01-20, 54 NRC 211 (2001)
SECURITY PERSONNEL
fitness-for-duty considerations; DD-01-5, 54 NRC 340 (2001)
SEISMIC ANALYSIS
for independent spent fuel storage installation, scope of; LBP-01-39, 54 NRC 497 (2001)
SEISMIC DESIGN
of fuel fabrication facility, adequacy of; LBP-01-35, 54 NRC 403 (2001)
SERVICE OF DOCUMENTS
by expedited means, deadlines for responses to; CLI-01-20, 54 NRC 211 (2001)
SETTLEMENT AGREEMENTS
Commission position on; LBP-01-27, 54 NRC 219 (2001)
public interest finding by licensing board, need for; LBP-01-36, 54 NRC 474 (2001)
SITE CHARACTERIZATION
contents of; LBP-01-21, 54 NRC 33 (2001)
use of guidance documents to interpret standard of adequacy; LBP-01-21, 54 NRC 33 (2001)
SITE SELECTION CRITERIA
applicable to independent spent fuel storage installation; LBP-01-26, 54 NRC 199 (2001)
SPENT FUEL DISPOSAL
financial qualifications issues in license transfer applications; CLI-01-19, 54 NRC 109 (2001)
SPRING PARSLEY
impacts of fuel storage facility on; LBP-01-30, 54 NRC 231 (2001)
STANDARD REVIEW PLANS
weight given to probability calculations for hazards; CLI-01-22, 54 NRC 255 (2001)
STANDING TO INTERVENE
economic interests of employees as basis for; CLI-01-23, 54 NRC 267 (2001); DD-01-3, 54 NRC 305
(2001)
in materials licensing proceedings; CLI-01-21, 54 NRC 247 (2001); LBP-01-35, 54 NRC 403 (2001)
in Subpart L proceeding; CLI-01-18, 54 NRC 27 (2001); LBP-01-35, 54 NRC 403 (2001)
injury-in-fact standard for; CLI-01-21, 54 NRC 247 (2001)
judicial concepts applied in NRC proceedings; LBP-01-21, 54 NRC 33 (2001); LBP-01-35, 54 NRC 403
(2001)
minor exposure to radiation within regulatory limits as injury-in-fact for purpose of; LBP-01-35, 54 NRC
403 (2001)
on a revised application when standing has been established on an earlier version of the application;
LBP-01-32, 54 NRC 283 (2001)
I-62
SUBJECT INDEX
on Part 76 certificate amendment for gaseous diffusion plant; CLI-01-23, 54 NRC 267 (2001); DD-01-3,
54 NRC 305 (2001)
public interest group, standard for grant of; LBP-01-21, 54 NRC 33 (2001)
residence near property or growth of food on property that could become contaminated during major
accident as injury for purpose of; LBP-01-35, 54 NRC 403 (2001)
showing based on claim that applicant has violated or will violate the law; CLI-01-18, 54 NRC 27
(2001)
showing necessary for grant of; LBP-01-21, 54 NRC 33 (2001); LBP-01-35, 54 NRC 403 (2001)
speculation about accidents along feed material’s transport routes as basis for; CLI-01-21, 54 NRC 247
(2001)
state agency petition, standard for grant of; LBP-01-21, 54 NRC 33 (2001)
weight given on appeal to presiding officer’s determination regarding; CLI-01-18, 54 NRC 27 (2001);
CLI-01-21, 54 NRC 247 (2001)
zone of interests protected by Atomic Energy Act §193(f); CLI-01-23, 54 NRC 267 (2001); DD-01-3, 54
NRC 305 (2001)
STANDING TO INTERVENE, REPRESENTATIONAL
affidavit support for member’s authorization, need for; LBP-01-35, 54 NRC 403 (2001)
individual authorization required for; LBP-01-35, 54 NRC 403 (2001)
member authorization required to establish; CLI-01-21, 54 NRC 247 (2001)
STATE AGENCY
standing to intervene; LBP-01-21, 54 NRC 33 (2001)
STATUTORY CONSTRUCTION
Commission discretion in interpreting its obligations under the Atomic Energy Act; DD-01-3, 54 NRC
305 (2001)
STAY OF PROCEEDING
litigation burden as irreparable harm for purpose of obtaining; CLI-01-28, 54 NRC 393 (2001)
pending completion of OI investigations; LBP-01-29, 54 NRC 223 (2001)
to permit Staff to analyze licensee reports; LBP-01-29, 54 NRC 223 (2001)
where proceeding is moot because of rejection of license termination plan by Staff; LBP-01-32, 54 NRC
283 (2001)
STEAM GENERATOR TUBE RUPTURE EVENT
need for investigation of; DD-01-4, 54 NRC 326 (2001)
SUBPART L PROCEEDING
standing to intervene in; CLI-01-18, 54 NRC 27 (2001)
SUBPART M PROCEEDINGS
applicability of formal hearing procedures in; CLI-01-19, 54 NRC 109 (2001)
right of petitioners to submit position statements and written statements on contentions other than their
own; CLI-01-19, 54 NRC 109 (2001)
scope of issues litigable under; CLI-01-19, 54 NRC 109 (2001)
SUMMARY DISPOSITION
as a tool for choosing between opposing expert affidavits; LBP-01-39, 54 NRC 497 (2001)
burden on proponents and opponents of; LBP-01-22, 54 NRC 155 (2001); LBP-01-23, 54 NRC 163
(2001); LBP-01-26, 54 NRC 199 (2001); LBP-01-30, 54 NRC 231 (2001); LBP-01-34, 54 NRC 293
(2001); LBP-01-40, 54 NRC 526 (2001)
Commission position on motions that have no chance of success; LBP-01-39, 54 NRC 497 (2001)
deficiency in agency’s NEPA process that precludes presiding officer from making a merits determination;
LBP-01-34, 54 NRC 293 (2001)
denial for failure to provide statement of material facts in dispute controverting statement of material
facts not at issue; LBP-01-38, 54 NRC 490 (2001)
licensing board role in; LBP-01-39, 54 NRC 497 (2001)
showing necessary for grant of; LBP-01-22, 54 NRC 155 (2001); LBP-01-23, 54 NRC 163 (2001)
use of supplementary information filed by applicant in response to Staff request for additional information
to defeat contention; LBP-01-35, 54 NRC 403 (2001)
I-63
SUBJECT INDEX
SUSPENSION OF PROCEEDING
frustration of national security interests by; CLI-01-28, 54 NRC 393 (2001)
health and safety considerations in; CLI-01-26, 54 NRC 376 (2001); CLI-01-27, 54 NRC 385 (2001);
CLI-01-28, 54 NRC 393 (2001)
pending review of terrorism-related standards; CLI-01-28, 54 NRC 393 (2001)
TECHNICAL QUALIFICATIONS
admissible issues in license transfer proceedings; CLI-01-19, 54 NRC 109 (2001)
TECHNICAL SPECIFICATIONS
required contents of; CLI-01-24, 54 NRC 349 (2001)
transfer to licensee-controlled documents; CLI-01-24, 54 NRC 349 (2001)
TERMINATION OF PROCEEDING
because of transfer of jurisdiction to Department of Energy; LBP-02-33, 54 NRC 291 (2001)
settlement agreement as basis for; LBP-01-27,54 NRC 219 (2001); LBP-01-28, 54 NRC 221 (2001)
TERRORISM
abeyance of proceeding pending review of standards related to; CLI-01-26, 54 NRC 376 (2001);
CLI-01-27, 54 NRC 385 (2001); CLI-01-28, 54 NRC 393 (2001)
need for environmental report to analyze foreseeable impacts of malevolent acts of; LBP-01-35, 54 NRC
403 (2001)
physical security changes in light of 9/11 attacks; LBP-01-37, 54 NRC 476 (2001)
TOTAL EFFECTIVE DOSE EQUIVALENT
interpretation of ‘‘critical group’’; CLI-01-25, 54 NRC 368 (2001)
TRANSPORTATION
of feed material, speculation about accidents as basis for standing to intervene in materials license
amendment proceeding; CLI-01-21, 54 NRC 247 (2001)
of plutonium to fuel fabrication facility, need to consider environmental impacts of; LBP-01-35, 54 NRC
403 (2001)
See also Radioactive Materials Transport
TRANSPORTATION ANALYSIS
in draft environment impact statement, amendment of contention to reflect changed circumstances between
environmental report and draft environment impact statement; LBP-01-22, 54 NRC 155 (2001)
U.S. DEPARTMENT OF ENERGY
NRC jurisdiction over facilities of; LBP-01-35, 54 NRC 403 (2001)
transfer of jurisdiction to; LBP-02-33, 54 NRC 291 (2001)
URANIUM ENRICHMENT
NRC obligation to consider whether a stable and economic source of domestic services will be
maintained; CLI-01-23, 54 NRC 267 (2001)
WAIVER OF REGULATIONS
special-circumstances showing necessary to support request for; CLI-01-19, 54 NRC 109 (2001)
to allow Subpart G procedures in license transfer proceedings; CLI-01-19, 54 NRC 109 (2001)
WATER CONTAMINATION
issues related to license termination plan; LBP-01-21, 54 NRC 33 (2001)
WITHDRAWAL
of intervenor, termination of proceeding because of; LBP-01-28, 54 NRC 221 (2001)
of license termination plan, mootness of proceeding based on; LBP-01-32, 54 NRC 283 (2001)
I-64
FACILITY INDEX
CATAWBA NUCLEAR STATION, Units 1 and 2; Docket Nos. 50-413, 50-414
OPERATING LICENSE RENEWAL; October 4, 2001; ORDER (Referring Petitions for Intervention
and Requests for Hearing to the Atomic Safety and Licensing Board Panel); CLI-01-20, 54 NRC
211 (2001)
OPERATING LICENSE RENEWAL; October 31, 2001; MEMORANDUM AND ORDER (Granting
Motion To Extend Time and Resetting Deadlines and Schedule for Proceedings); LBP-01-31, 54
NRC 242 (2001)
OPERATING LICENSE RENEWAL; December 28, 2001; MEMORANDUM AND ORDER;
CLI-01-27, 54 NRC 385 (2001)
HADDAM NECK PLANT; Docket No. 50-213-OLA
OPERATING LICENSE AMENDMENT; December 5, 2001; MEMORANDUM AND ORDER;
CLI-01-25, 54 NRC 368 (2001)
OPERATING LICENSE AMENDMENT; December 10, 2001; ORDER (Approving Stipulation and
Settlement Agreement, and Granting Motion To Participate as Interested State); LBP-01-36, 54
NRC 474 (2001)
INDIAN POINT, Unit 2; Docket No. 50-247
REQUEST FOR ACTION; November 21, 2001; DIRECTOR’S DECISION UNDER 10 C.F.R.
§2.206; DD-01-4, 54 NRC 326 (2001)
REQUEST FOR ACTION; November 26, 2001; DIRECTOR’S DECISION UNDER 10 C.F.R.
§2.206; DD-01-5, 54 NRC 340 (2001)
INDIAN POINT, Unit 3; Docket No. 50-286-LT
LICENSE TRANSFER; July 19, 2001; MEMORANDUM AND ORDER; CLI-01-16, 54 NRC 1
(2001)
INDIAN POINT, Units 1 and 2; Docket Nos. 50-003-LT, 50-247-LT
LICENSE TRANSFER; August 22, 2001; MEMORANDUM AND ORDER; CLI-01-19, 54 NRC 109
(2001)
LICENSE TRANSFER; October 4, 2001; ORDER (Terminating Proceeding); LBP-01-28, 54 NRC
221 (2001)
JAMES A. FITZPATRICK NUCLEAR POWER PLANT; Docket No. 50-333-LT
LICENSE TRANSFER; July 19, 2001; MEMORANDUM AND ORDER; CLI-01-16, 54 NRC 1
(2001)
JEFFERSON PROVING GROUND SITE; Docket No. 40-8838-MLA
MATERIALS LICENSE AMENDMENT; November 7, 2001; MEMORANDUM AND ORDER
(Granting Request to Hold Proceeding in Abeyance); LBP-01-32, 54 NRC 283 (2001)
MAINE YANKEE ATOMIC POWER STATION; Docket No. 50-309-OLA
OPERATING LICENSE AMENDMENT; October 2, 2001; ORDER (Approving Settlement Agreement
and Terminating Proceeding); LBP-01-27, 54 NRC 219 (2001)
MCGUIRE NUCLEAR STATION, Units 1 and 2; Docket Nos. 50-369, 50-370
OPERATING LICENSE RENEWAL; October 4, 2001; ORDER (Referring Petitions for Intervention
and Requests for Hearing to the Atomic Safety and Licensing Board Panel); CLI-01-20, 54 NRC
211 (2001)
I-65
FACILITY INDEX
OPERATING LICENSE RENEWAL; October 31, 2001; MEMORANDUM AND ORDER (Granting
Motion To Extend Time and Resetting Deadlines and Schedule for Proceedings); LBP-01-31, 54
NRC 242 (2001)
OPERATING LICENSE RENEWAL; December 28, 2001; MEMORANDUM AND ORDER;
CLI-01-27, 54 NRC 385 (2001)
MILLSTONE NUCLEAR POWER STATION, Unit 3; Docket No. 50-423-LA-3
OPERATING LICENSE AMENDMENT; October 5, 2001; MEMORANDUM AND ORDER (Staff
Motion To Continue To Hold Proceeding in Abeyance); LBP-01-29, 54 NRC 223 (2001)
MILLSTONE NUCLEAR POWER STATION, Units 2 and 3; Docket Nos. 50-336-LA, 50-423-LA
OPERATING LICENSE AMENDMENT; December 5, 2001; MEMORANDUM AND ORDER;
CLI-01-24, 54 NRC 349 (2001)
MOAB, UTAH FACILITY; Docket Nos. 40-3453-MLA-4, 40-3453-MLA-5
MATERIALS LICENSE AMENDMENT; November 15, 2001; MEMORANDUM AND ORDER
(Terminating Proceedings); LBP-01-33, 54 NRC 291 (2001)
PADUCAH, KENTUCKY GASEOUS DIFFUSION PLANT; Docket No. 70-7001
CERTIFICATE AMENDMENT; June 14, 2001; DIRECTOR’S DECISION UNDER 10 C.F.R.
§76.45(d); DD-01-3, 54 NRC 305 (2001)
CERTIFICATE AMENDMENT; November 14, 2001; MEMORANDUM AND ORDER; CLI-01-23,
54 NRC 267 (2001)
SAVANNAH RIVER MIXED OXIDE FUEL FABRICATION FACILITY; Docket No. 070-03098-ML
CONSTRUCTION AUTHORIZATION REQUEST; December 6, 2001; MEMORANDUM AND
ORDER (Ruling on Standing and Admissibility of Contentions); LBP-01-35, 54 NRC 403 (2001)
CONSTRUCTION AUTHORIZATION REQUEST; December 28, 2001; MEMORANDUM AND
ORDER; CLI-01-28, 54 NRC 393 (2001)
TURKEY POINT NUCLEAR GENERATING PLANT, Units 3 and 4; Docket Nos. 50-250-LR, 50-251-LR
LICENSE RENEWAL; July 19, 2001; MEMORANDUM AND ORDER; CLI-01-17, 54 NRC 3
(2001)
WHITE MESA URANIUM MILL; Docket No. 40-8681-MLA
MATERIALS LICENSE AMENDMENT; July 30, 2001; MEMORANDUM AND ORDER; CLI-01-18,
54 NRC 27 (2001)
MATERIALS LICENSE AMENDMENT; November 14, 2001; MEMORANDUM AND ORDER;
CLI-01-21, 54 NRC 247 (2001)
I-66