[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Notices]
[Pages 7825-7832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4683]



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NUCLEAR REGULATORY COMMISSION
[Docket No. 50-029]


Yankee Atomic Electric Company (License No. DPR-3); Issuance of 
Director's Decision Under 10 CFR 2.206

    Notice is hereby given that the Director, Office of Nuclear Reactor 
Regulation, has taken action with respect to a Petition, dated January 
17, 1996, by Citizens Awareness Network and New England Coalition on 
Nuclear Pollution (Petitioners). The Petitioners requested that the 
Nuclear Regulatory Commission (NRC) take action with regard to 
operation by Yankee Atomic Energy Company (YAEC or Licensee) of its 
Nuclear Power Station at Rowe, Massachusetts (Yankee Rowe).
    Petitioners requested that the NRC comply with Citizens Awareness 
Network Inc. v. United States Nuclear Regulatory Commission and Yankee 
Atomic Electric Company, 59 F.3d 284 (1st Cir. 1995) (CAN v. NRC). 
Specifically, Petitioners requested that the Commission immediately 
order:
    (1) YAEC not to undertake, and the NRC staff not to approve, 
further major 

[[Page 7826]]
dismantling activities or other decommissioning activities, unless such 
activities are necessary to assure the protection of occupational and 
public health and safety; (2) YAEC to cease any such activities; and 
(3) NRC Region I to reinspect Yankee Rowe to determine whether there 
has been compliance with the Commission's Order of October 12, 1995 
(CLI-95-14), and to issue a report within ten days of the requested 
order to Region I.
    The Petitioners' request for emergency action to cease 
decommissioning activities was mooted in part by the Licensee's 
completion of activities evaluated by the NRC staff in a letter of 
November 2, 1995 to the licensee. Even if these activities have not 
been completed, they would have been permissible under the Commission's 
pre-1993 interpretation of its decommissioning regulations. By letter 
dated February 2, 1996, Petitioners' request that shipments of low-
level radioactive be prohibited was denied, and Petitioners' request 
for reinspection of the Yankee Rowe facility to determine compliance 
with CLI-94-14 and to issue an inspection report was granted. The 
Director has determined to be moot the request that four other 
activities be prohibited. Additionally, he has granted the request for 
inspection of Yankee Rowe to determine compliance with CLI-95-14 and to 
issue an inspection report. The reasons for these decisions are 
explained in the ``Director's Decision Pursuant to 10 CFR 2.206'' (DD-
96-01), the complete text of which follows this notice and is available 
for public inspection at the Commission's Public Document Room, the 
Gelman Building, 2120 L Street, NW., Washington, DC, and at the local 
public document room located at the Greenfield Community College 
Library, 1 College Drive, Greenfield, Massachusetts, 01301.
    A copy of the Decision will be filed with the Secretary of the 
Commission for the Commission's review in accordance with 10 CFR 
2.206(c) of the Commission's regulations. As provided by this 
regulation, the Decision will constitute the final action of the 
Commission 25 days after the date of issuance unless the Commission, on 
its own motion, institutes a review of the Decision in that time.

    Dated at Rockville, Maryland, this 22nd day of February 1996.

    For the Nuclear Regulatory Commission.
William T. Russell,
Director, Office of Nuclear Reactor Regulation.

Appendix A to This Document: Director's Decision Under 10 CFR 2.206; 
Yankee Atomic Electric Company

I. Introduction

    An ``EMERGENCY MOTION FOR COMPLIANCE WITH CIRCUIT COURT 
OPINION'' (Petition), dated January 17, 1996, was submitted by 
Citizens Awareness Network and New England Coalition on Nuclear 
Pollution (Petitioners). Petitioners requested that the United 
States Nuclear Regulatory Commission (NRC or Commission) take action 
with respect to activities conducted by Yankee Atomic Electric 
Company (YAEC or Licensee) at the Yankee Nuclear Power Station in 
Rowe, Massachusetts (Yankee Rowe or the facility).
    By an Order of the Commission dated January 23, 1996, the 
Emergency Motion was referred to the NRC staff for treatment as a 
petition pursuant to 10 CFR 2.206 of the Commission's regulations. 
The Commission ordered the staff to respond to the emergency aspects 
of the Petition in 10 days and to issue a decision on the Petition 
as a whole within 30 days.
    Petitioners request that the NRC comply with Citizens Awareness 
Network Inc. v. United States Nuclear Regulatory Commission and 
Yankee Atomic Electric Company, 59 F.3d 284 (1st Cir. 1995) (CAN v. 
NRC). Specifically, Petitioners request that the Commission 
immediately order:
    (A) YAEC not to undertake, and the NRC staff not to approve, 
further major dismantling activities or other decommissioning 
activities, unless such activities are necessary to assure the 
protection of occupational and public health and safety;
    (B) YAEC to cease any such activities; and
    (C) NRC Region I to reinspect the Yankee Nuclear Power Station 
in Rowe, Massachusetts (Yankee Rowe) to determine whether there has 
been compliance with the Commission's Order of October 12, 1995 
(CLI-95-14), and to issue a report within ten days of the requested 
order to Region I.
    As the bases for their requests, Petitioners state that:
    (1) CAN v. NRC requires the cessation, and prohibits 
commencement, of decommissioning activities at Yankee Rowe, pending 
final approval of the licensee's decommissioning plan after 
opportunity for a hearing. CLI-95-14 forbids YAEC from conducting 
any further major dismantling or decommissioning activities until 
final approval of its decommissioning plan after completion of the 
hearing process;
    (2) CAN v. NRC obliges the Commission and the staff to provide 
an opportunity to interested persons for a hearing to approve a 
decommissioning plan;
    (3) CAN v. NRC requires the Commission to reinstate its pre-1993 
interpretation of its decommissioning regulations, General 
Requirements for Decommissioning Nuclear Facilities, 53 FR 24,018, 
24,025-26 (June 27, 1988), limiting the scope of permissible 
activities prior to approval of a decommissioning plan to 
decontamination, minor component disassembly, and shipment and 
storage of spent fuel, if permitted by the operating license and/or 
10 CFR Sec. 50.59. Under Long Island Lighting Co. (Shoreham Nuclear 
Power Station, Unit 1), CLI-90-08, 32 NRC 201, 207, n.3 (1990), this 
means that the licensee may not take any action that would 
materially affect the methods or options available for 
decommissioning, or that would substantially increase the costs of 
decommissioning, prior to approval of a decommissioning plan. Under 
CLI-91-2, 33 NRC at 73, n.5, and CLI-92-2, 35 NRC at 61, n.7, other 
decommissioning activities, in addition to major ones, are 
prohibited, including offsite shipments of low-level radioactive 
waste produced by decommissioning activities, until after approval 
of a decommissioning plan;
    (4) Decommissioning activities permitted by NRC Inspection 
Manual, Chapter 2561, Sec. 06.06, ``Modifications or Changes to the 
Facility'', before approval of a decommissioning plan are limited to 
maintenance, removal of relatively small radioactive components or 
non-radioactive components, and characterization of the plant or 
site;
    (5) YAEC is conducting decommissioning activities, with the 
approval of the NRC technical staff, in flagrant violation of CAN v. 
NRC and of CLI-95-14, thus threatening to render the decommissioning 
process nugatory and to deprive Petitioners of their hearing rights 
under Section 189a of the Atomic Energy Act;
    (6) By letter dated October 19, 1995, YAEC described nine 
decommissioning activities in progress, and by letter dated October 
24, 1995, interpreted permissible ``major'' dismantling as removal 
of non-radioactive material required to support safe storage of 
spent fuel and of those portions of the facilities which remain, or 
to support future dismantlement;
    (7) By letter dated November 2, 1995, the NRC staff approved the 
activities described by the Licensee in its letter of October 19, 
1995;
    (8) Five of the nine activities approved by the NRC staff's 
letter of November 2, 1995, are major dismantling or other 
decommissioning activities, in the nature of Component Removal 
Project activities, prohibited, until after approval of a 
decommissioning plan, by CAN v. NRC and CLI-95-14. Petitioners 
object to: (a) Completing removal of the remainder of the Upper 
Neutron Shield Tank; (b) removal of Component Cooling Water System 
pipes and components and Spent Fuel Cooling System pipes and 
components; (c) Fuel Chute isolation; (d) Spent Fuel Pool electrical 
conduit installation; and (e) radioactive waste shipments. 
Petitioners do not object to Waste Tank removal, Ion Exchange Pit 
clean-up, removal of Emergency Diesel Generators, or the Brookhaven 
National Laboratory Cable Sampling Project.
    (9) Petitioners advocate the SAFSTOR decommissioning alternative 
because it allows levels of radioactivity and waste volumes to 
decrease, thus reducing 

[[Page 7827]]
occupational and public radiation exposures, and lowering 
decommissioning costs;
    (10) NRC Inspection Report No. 50-29/95-05 (December 16, 1995) 
concludes that the issue whether activities observed were in 
compliance with CLI-95-14 is unresolved, but approves YAEC's 
proposed activities, contrary to the requirements of NRC Inspection 
Manual, Chapter 2561, Sec. 06.06, ``Modifications or Changes to the 
Facility'' (March 20, 1992); and
    (11) YAEC's criterion for permissible decommissioning 
activities, that any activity involving less than 1 percent of the 
on-site radioactive inventory is not ``major'' and may take place 
before approval of a decommissioning plan, violates CAN v. NRC 
because it would allow completion of decommissioning before any 
decommissioning plan could be approved in hearing, and constitutes 
unlawful segmentation under the National Environmental Policy Act.
    By letter dated January 29, 1996, Yankee Atomic Electric Company 
responded to the Petition. YAEC supplemented its response by letters 
dated February 15, 1996, February 21, 1996, and February 22, 1996, 
and by an E-mail message to the NRC staff on January 31, 1996.
    By letter dated February 2, 1996, the NRC staff denied in part 
and granted in part Petitioners' requests for emergency action. The 
Petition was also found moot in part. Petitioners' requests that the 
NRC take emergency action to order (A) YAEC not to undertake and the 
NRC staff not to approve further major dismantling activities or 
other decommissioning activities, unless necessary to assure the 
protection of occupational and public health and safety and (B) YAEC 
to cease any such activities were found moot in part and denied in 
part. Petitioners' request for emergency action to require NRC 
Region I to reinspect Yankee Rowe to determine whether YAEC has 
complied with the Commission's Order of October 12, 1995 (CLI-95-
14), and to issue a report within ten days after the Commission 
orders such an inspection, was granted.
    Petitioners then requested the Commission to reverse the NRC 
staff's February 2, 1996, decision on the emergency aspects of the 
Petition. See ``Citizens Awareness Network's and New England 
Coalition on Nuclear Pollution's Motion for Exercise of Plenary 
Commission Authority to Reverse NRC Staff 2.206 Decision, and 
Renewed Emergency Request for Compliance with Circuit Court 
Opinion.'' By Order dated February 15, 1996, the Commission declined 
to grant the emergency relief requested, as there was no showing 
that the Licensee would take any action before the issuance of a 
Director's Decision on February 22, 1996. The Commission directed 
the NRC staff to address the arguments advanced by Petitioners in 
their February 9 motion in this Decision, with the exception of the 
new issues raised on page 13 of the Motion, which are to be 
addressed in a supplementary 10 CFR Sec. 2.206 decision.
    For the reasons discussed below, Petitioners' requests that the 
NRC prohibit YAEC from undertaking or continuing five of the nine 
activities evaluated by the NRC staff's letter of November 2, 1995, 
are moot in part and denied in part. Of the nine activities, all 
with the exception of radioactive waste shipments were completed 
before submission of the January 17, 1996, Petition. Accordingly, 
Petitioners' request for relief with respect to: (1) Completing 
removal of the remainder of the Upper Neutron Shield Tank; (2) 
removal of the Component Cooling Water System pipes and components 
and Spent Fuel Cooling System pipes and components; (3) Fuel Chute 
isolation; and (4) Spent Fuel Pool electrical conduit installation 
is moot. Petitioners' request for relief with respect to radioactive 
waste shipments is denied. As explained below, all five contested 
activities were permissible, before approval of a decommissioning 
plan, under the pre-1993 interpretation of the Commission's 
decommissioning regulations, and thus are in compliance with CAN v. 
NRC and CLI-95-14. Petitioners' request that the NRC inspect Yankee 
Rowe to determine compliance with CLI-95-14, and issue an inspection 
report, was granted.

II. Background

    On February 27, 1992, YAEC announced its intention to cease 
operations permanently at Yankee Rowe. On August 5, 1992, the NRC 
issued a license amendment to limit the license to a Possession-
Only-License. 57 FR 37558, 37579 (Aug. 19, 1992).
    In late 1992, YAEC proposed to initiate a Component Removal 
Project (CRP). On December 20, 1993, YAEC submitted a 
decommissioning plan based on a phased approach, starting with 
DECON, then SAFSTOR, and then finally dismantlement. Notice of 
Receipt of Decommissioning Plan and Request for Comments was 
published in the Federal Register. (59 FR 14689 on March 29, 1994).
    On January 14, 1993, and on June 30, 1993, the Commission issued 
two Staff Requirements Memoranda which, in pertinent part, 
interpreted the Commission's regulations to permit many 
decommissioning activities prior to approval of a decommissioning 
plan, as long as the activities do not violate the terms of the 
existing license or 10 CFR Sec. 50.59 with certain additional 
restrictions. See ``Staff Requirements--Briefing by OGC on 
Regulatory Issues and Options for Decommissioning Proceedings (SECY-
92-382), 10:00 A.M., Tuesday, November 24, 1992, Commissioner's 
Conference Room, One White Flint North, Rockville, Maryland (Open to 
Public Attendance)'' (January 14, 1993) and ``SECY-92-382-
Decommissioning--Lessons Learned'' (June 30, 1993).
    On several occasions between late 1992 and early 1994, CAN asked 
the NRC to offer an opportunity for an administrative hearing 
regarding decommissioning activities conducted by YAEC at Yankee 
Rowe. The Commission denied each such request. CAN sought judicial 
review and challenged the denials and the January 14, 1993, 
interpretation of the Commission's decommissioning regulations.
    On July 20, 1995, the United States Court of Appeals held that 
the Commission had: (1) Failed to provide an opportunity for hearing 
to CAN, as required by Section 189 of the Atomic Energy Act, in 
connection with the Commission's decision to permit the CRP 
decommissioning activities; (2) changed its pre-1993 interpretation 
of its decommissioning regulations without notice to the public and 
in violation of the Administrative Procedure Act; and (3) 
impermissibly allowed the licensee to conduct CRP decommissioning 
activities prior to compliance with the National Environmental 
Policy Act requirement to conduct an environmental analysis or 
environmental impact statement. Citizens Awareness Network v. NRC 
and Yankee Atomic Electric Company, 59 F. 3d 284, 291-2, 292-3, and 
294-5 (1st Cir. 1995). The court remanded the matter to the 
Commission for proceedings consistent with the court's opinion.
    In response, the Commission issued a Federal Register notice 
advising: (1) That the Commission did not intend to seek further 
review of CAN v. NRC; (2) that the Commission understood that 
decision to require a return to the interpretation of NRC 
decommissioning regulations that was in effect prior to January 14, 
1993; and (3) that the Commission was requesting public comments on 
whether the Commission should order YAEC to cease ongoing 
decommissioning activities pending any required hearings and any 
other matters connected with that issue. See 60 FR 46,317 (September 
6, 1995).
    After consideration of comments filed in response to that 
notice, the Commission implemented CAN v. NRC by issuing Yankee 
Atomic Electric Company (Yankee Nuclear Power Station), CLI-95-14, 
42 NRC 130 (1995). In CLI-95-14, the Commission reinstated its pre-
1993 interpretation of its decommissioning policy, required the 
issuance of a notice of opportunity for an adjudicatory hearing on 
the Yankee Rowe decommissioning plan, held that YAEC may not conduct 
further ``major'' decommissioning activities at Yankee Rowe until 
approval of a decommissioning plan after completion of any required 
hearing, and directed YAEC to inform the Commission within 14 days 
of the steps it is taking to come into compliance with the 
reinstated interpretation of the Commission's decommissioning 
regulations. Yankee Atomic Electric Company, CLI-95-14, 42 NRC 130 
(1995).
    Pursuant to CLI-95-14, a proceeding is now underway to offer an 
opportunity for hearing on the Licensee's decommissioning plan for 
Yankee Rowe. Petitioners have sought intervention and a hearing.
    As of July 20, 1995, when the court issued CAN v. NRC, YAEC had 
completed its Component Removal Project. In response to CLI-95-14, 
by letters dated October 19 and 24, 1995, YAEC identified nine 
ongoing activities which YAEC believed were permissible under CAN v. 
NRC and CLI-95-14.
    In its letter of November 2, 1995, the NRC staff evaluated those 
nine activities and found them permissible under the Commission's 
pre-1993 interpretation of its decommissioning regulations, and thus 
under CAN v. NRC and CLI-95-14. The staff 

[[Page 7828]]
also identified certain activities, although not proposed by the 
Licensee, which may not be conducted before reapproval of a 
decommissioning plan. Those activities include dismantlement of 
systems such as the main reactor coolant system, the lower neutron 
shield tank, vessels that have significant radiological 
contamination, pipes, pumps and other such components and the vapor 
container (containment). The staff also identified segmentation or 
removal of the reactor vessel from its support structure as a major 
dismantlement not to be conducted until after the decommissioning 
plan is reapproved.

III. Discussion

    A. The nine activities were permissible, prior to approval of a 
decommissioning plan, under the Commission's pre-1993 interpretation 
of its decommissioning regulations, and thus are permissible under 
CAN v. NRC and CLI-95-14.
    Petitioners contend that five of the nine activities evaluated 
by the NRC staff's letter of November 2, 1995, are major dismantling 
or other decommissioning activities prohibited until after approval 
of a decommissioning plan, by CAN v. NRC and CLI-95-14. 
Specifically, Petitioners object to: (1) Completing removal of the 
remainder of the Upper Neutron Shield Tank; (2) removal of Component 
Cooling Water System pipes and components and Spent Fuel Cooling 
System pipes and components; (3) Fuel Chute isolation; (4) Spent 
Fuel Pool electrical conduit installation; and (5) radioactive waste 
shipments. Petitioners do not object to Waste Tank removal, Ion 
Exchange Pit clean-up, removal of Emergency Diesel Generators, or 
the Brookhaven National Laboratory Cable Sampling Project. 
Petitioners acknowledge that completion of Waste Tank removal and 
Ion Exchange Pit clean-up are required for safety reasons. 
Petitioners also acknowledge that the removal of the Emergency 
Diesel Generators is permissible because they are not radioactive, 
and that the Brookhaven National Laboratory Cable Sampling Project 
is a research project unrelated to decommissioning. Of the nine 
activities, all with the exception of radioactive waste shipments 
were completed before submission of the January 17, 1996, Petition.
    Under the Commission's pre-1993 interpretation of its 
decommissioning regulations, a licensee ``may proceed with some 
activities such as decontamination, minor component disassembly, and 
shipment and storage of spent fuel if the activities are permitted 
by the operating license and/or Sec. 50.59'', prior to final 
approval of a licensee's decommissioning plan, \1\, as long as the 
activity does not involve major structural or other major changes 
and does not materially and demonstrably affect the methods or 
options available for decommissioning or substantially increase the 
costs of decommissioning. Long Island Lighting Company (Shoreham 
Nuclear Power Station, Unit 1), CLI-90-8, 32 NRC 201, 207, n.3 
(1990); Long Island Lighting Company (Shoreham Nuclear Power 
Station, Unit 1), CLI-91-2, 33 NRC 61, 73. n.5 (1991); and 
Sacramento Municipal Utility District (Rancho Seco Nuclear 
Generating Station), CLI-92-2, 35 NRC 47, 61. n. 7 (1992).

    \1\ Statement of Consideration, ``General Requirements for 
Decommissioning Nuclear Facilities'', 53 FR 24018, 24025-26 (June 
27, 1988).
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    Under the pre-1993 interpretation of the Commission's 
decommissioning regulations, examples of activities which were 
considered permissible and which were conducted at various 
facilities under a Possession-Only license before approval of a 
decommissioning plan included:

Shoreham \2\

 Core borings in biological shield wall

    \2\ See letter dated December 11, 1991 from John D. Leonard, 
Jr., Long Island Lighting Company, to U.S. Nuclear Regulatory 
Commission, Docket No. 50-322.
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 Core borings of the reactor pressure vessel
 Regenerative heat exchanger removal and disassembly
 Various sections of reactor water clean-up system piping 
cut out and removed to determine effectiveness of chemical 
decontamination processes being used
 Removal of approximately half of reactor pressure vessel 
insulation and preparation for disposal
 Removal of fuel support castings and peripheral pieces 
removed and shipment offsite for disposal at Barnwell, South 
Carolina
 Reactor water clean-up system recirculation holding pump 
removed and shipped to James A. FitzPatrick Nuclear Power Plant
 Control rod drive pump shipped to Brunswick Nuclear Station
 One full set of control rod blade guides sold to Carolina 
Power and Light Company
 Control rod drives removed, cleaned, and stored in boxes 
for salvage
 Process initiated for segmenting and removing reactor 
pressure vessel cavity shield blocks
 Process initiated for removal of instrument racks, tubing, 
conduits, walkways, and pipe insulation presenting interferences for 
decommissioning activities and/or removal of salvageable equipment

Fort St. Vrain \3\

 Control rod drive and orifice assemblies and control rods 
removed from core during defueling and shipped offsite for 
processing or disposal as low-level waste

    \3\ See letter dated September 4, 1992 from Donald M. 
Warembourg, Public Service Company of Colorado, to the U.S. Nuclear 
Regulatory Commission, Docket No. 50-267.
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 All helium circulators removed and shipped offsite for 
disposal
 Core region constraint devices (internals) removed and 
approximately one-half shipped offsite for disposal
 About 50 core metal-clad reflector blocks (top layer of 
core) removed and stored in fuel storage wells
 Removal of remaining hexagonal graphite reflector elements, 
defueling elements, and metal-clad reflector blocks begun
 Pre-stressed concrete reactor vessel (PCRV) top cross-head 
tendons and some circumferential tendons detensioned
 Some detensioned tendons removed from PCRV
 Work initiated to cut and remove PCRV liner cooling system 
piping presenting interferences to detensioning of PCRV tendons, and
 Asbestos insulation completely removed from piping under 
PCRV

    Activities such as normal maintenance and repairs, removal of 
small radioactive components for storage or shipment, and removal of 
components similar to that for maintenance and repair also were 
permitted prior to approval of a decommissioning plan under the 
Commission's pre-1993 interpretation of the Commission's 
decommissioning regulations. See NRC Inspection Manual, Chapter 
2561, Section 06.06. (Issue Date: 03/20/92).4

    \4\ ``Examples of modifications and activities, that are allowed 
during the post-operational phase [the interval between permanent 
shutdown and the NRC's approval of the licensee's decommissioning 
plan] are (1) those that could be performed under normal maintenance 
and repair activities, (2) removal of certain, relatively small 
radioactive components, such as control rod drive mechanism, control 
rods, and core internals for disassembly, and storage or shipment, 
(3) removal of non-radioactive components and structures not 
required for safety in the post-operational phase, (5) shipment of 
reactor fuel offsite, and (6) activities related to site and 
equipment radiation and contamination characterization.''
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    Of course, licensees are also permitted to complete or to 
conduct activities required for compliance with safety requirements 
before approval of a decommissioning plan. In addition, special 
consideration must be given to activities required to comply with 
other federal and state safety requirements. See Memorandum of 
Understanding Between the Nuclear Regulatory Commission and the 
Occupational Safety and Health Administration, ``Worker Protection 
at NRC-licensed Facilities'' (October 21, 1988), 53 FR 43950 
(October 31, 1988). See also NRC Inspection Manual, Chapter 1007, 
``Interfacing Activities Between Regional Offices of NRC and OSHA''. 
Petitioners concede that completion of activities already underway 
is permissible if completion is required for immediate safety 
purposes.
    The staff's November 2, 1995 letter evaluated the nine 
activities identified in YAEC's letter of October 19, 1995, based on 
the Commission's pre-1993 interpretation of its decommissioning 
regulations,5 and determined that the nine activities were 
permissible before approval of a decommissioning plan.

    \5\ Petitioners claim that YAEC's ``1 percent'' criterion for 
determining what constitutes major structural or other major change 
(and thus what activities are permissible before approval of a 
decommissioning plan) would allow completion of decommissioning 
before any decommissioning plan could be approved in hearing. The 
staff does not accept or approve, and has not used this criterion to 
determine whether any YAEC activities, including the nine 
activities, are permissible before approval of a decommissioning 
plan.
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    Upon review of the Petition and its supplement of February 9, 
1996, the staff took a fresh look at the nine activities and again 
found them to be permissible before approval of a decommissioning 
plan, under the pre-1993 interpretation of the Commission's 
decommissioning regulations, and thus under CAN v. NRC and CLI-95-
14:

[[Page 7829]]


(1) Completion of Removal of the Remaining Portions of the Upper 
Neutron Shield Tank

    As stated in the NRC staff's letter of November 2, 1995, 
completion of this activity was necessary to avoid a significant 
lead hazard to plant personnel due to lead dust or powder deposits 
on surfaces of the structure (particularly if the plant were to go 
into an extended SAFSTOR configuration, as desired by Petitioners). 
That contamination, if disturbed during licensee maintenance 
activities or NRC inspections would pose a significant health hazard 
to Licensee and NRC personnel.
    Petitioners object that this safety rationale is unsupported by 
factual information regarding actual lead levels in the tank and 
whether the lead levels violated OSHA standards.
    Dismantlement of the Upper Neutron Shield Tank required cutting 
sections of the tank that had lead shielding. Cutting was completed 
before November 2, 1995 and lead cleanup was completed by November 
8, 1995. Lead dust was created by dismantlement of the tank, already 
underway and completed before issuance of the November 2, 1995 staff 
letter. Surface lead residue measurements in those areas ranged 
between 13,000 micrograms/ft 2 and 390,000 micrograms/ft 
2.
    The Licensee's operating procedures require the Licensee to 
implement industrial hygiene control methods as specified by the 
Occupational Safety and Health Administration in areas where there 
is potential for employee exposure to lead. Procedure No. AP-0713, 
``Lead Control Program'', Revision 1 Major, Section C 
(``Discussion''), p. 3. The target for removable lead contamination 
is 200 micrograms/ft 2. Id., ``Discussion'', Section C., 
``Decontamination'', p. 4.
    Lead dust resulting from dismantlement of the Upper Neutron 
Shield Tank was at a concentration such that surface lead 
contamination exceeded the target for removable lead 
contamination.6 Licensee personnel were and are required to 
enter the area in order to conduct surveillances to monitor 
radioactive contamination and for compliance with fire protection 
requirements.

    \6\ The use of respiratory protection by workers would not have 
satisfied the Licensee's operating procedures. Until a determination 
is made that any employee working with lead will not be exposed to 
lead at the action level, respiratory protection is required. 
Procedure No. AP-0713, ``Procedure'', Section C (``Lead Work 
Practices''), p. 11. The action level is employee exposure, without 
regard to use of respirators, to an airborne concentration of lead 
of 30 micrograms per cubic meter of air calculated as an 8-hour 
time-weighted average, and the permissible exposure limit is 50 
micrograms per cubic meter of air over an 8-hour time weighted 
average, and 30 micrograms per cubic meter of air over a 10-hour 
time weighted average. Id., ``Definitions'', p. 1. Between October 
5, 1995 and October 11, 1995, airborne lead concentrations in the 
areas affected ranged between 3 micrograms/m3 and 2500 
micrograms/m3. Between October 12, 1995 and October 26, 1995, 
airborne lead concentrations ranged between 1 microgram/m3 and 
250 micrograms/m3.
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    In view of the above, this activity was permissible for safety 
reasons, and, therefore, would have been allowed in a comparable 
situation before approval of a decommissioning plan, under the pre-
1993 interpretation of the Commission's decommissioning regulations.

(2) Waste Tank Removal (Activity Decay and Dilution Tank)

    Petitioners concede that completion of this activity was 
required for safety reasons.

(3) Removal of Component Cooling Water System Pipes and Components 
and Spent Fuel Cooling System Pipes and Components

    Contrary to Petitioners' assertions, the staff's February 2, 
1996, letter did not ``abandon'' the November 2, 1995, rationale for 
finding this activity permissible. The staff's February 2 letter 
repeated the November 2 rationale and provided a more detailed 
explanation for the staff's conclusion that this activity is 
permissible under the pre-1993 interpretation of the Commission's 
decommissioning regulations.
    The Licensee had installed a self-contained spent fuel pool 
cooling system, isolated from the fluid components and installed 
conduit to allow future electrical isolation from other systems, in 
order to enhance safety and integrity of the spent fuel pool for 
prolonged storage of fuel. As a result, the Component Cooling Water 
System pipes and components and Spent Fuel Cooling System pipes and 
components were rendered redundant and were no longer useful.
    Removal of the no-longer useful pipes and components was not 
decommissioning, but maintenance that would have been allowed, 
before approval of a decommissioning plan, under the pre-1993 
interpretation of the Commission's decommissioning 
regulations.7 Petitioners erroneously contend that removal of 
this equipment is not maintenance. Removal of replaced equipment (as 
opposed to removal of dismantled equipment not intended to be 
replaced) is a normal maintenance activity.

    \7\ Petitioners assert that the staff provided no factual 
support for its conclusion that leaving the Component Cooling Water 
System and Spent Fuel Cooling System pipes and components in place 
would pose a safety hazard. Upon further review, the staff has 
determined that removal was not necessary to prevent a safety 
hazard.
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    In view of the above, this activity was permissible, before 
approval of a decommissioning plan, under the pre-1993 
interpretation of the Commission's decommissioning regulations.

(4) Ion Exchange Pit Clean-up

    Petitioners concede that completion of this activity was 
required for safety reasons.

(5) Fuel Chute Isolation

    The Licensee made a commitment to NRC to complete a Fuel Chute 
isolation project, needed to enhance spent fuel pool integrity and 
long-term reliability, in response to NRC Bulletin 94-01, 
``Potential Fuel Pool Draindown Caused by Inadequate Maintenance 
Practices at Dresden Unit 1'' (April 14, 1994). NRC Bulletin 94-01 
explicitly identified potential siphon or drainage paths and 
freezing failures as hazards that could lead to drainage of the 
spent fuel pool.8 NRC Bulletin 94-01 required licensees to 
identify which of the suggested actions that the licensees would 
take to prevent such hazards, or to identify an alternative course 
of action, if the licensees needed to take such measures to bring 
themselves into compliance as described in NRC Bulletin 94-01.

    \8\ Requested action number 2 was: ``Ensure that systems for 
essential area heating and ventilation are adequate and appropriate 
maintenance so that potential freezing failures that could cause 
loss of SFP water inventory are precluded.'' Requested action number 
3 was: ``Ensure that piping or hoses in or attached to the SFP 
cannot serve as siphon or drainage paths in the event of piping or 
hose degradation or failure or the mispositioning of system 
valves.''
---------------------------------------------------------------------------

    YAEC's Fuel Chute isolation project eliminated a potential 
freezing threat and siphon path that could lead to drainage of the 
spent fuel pool. The NRC staff determined actions taken to prevent 
potential siphon paths and freezing hazards connected with the Fuel 
Chute to be adequate. NRC Inspection Report No. 50-029/94-80 
(December 9, 1994).
    Petitioners erroneously maintain that isolation of the upper 
Fuel Chute is not necessary to prevent a risk of siphoning or 
freezing, because the upper Fuel Chute lies above the fuel pool and 
cannot serve as a siphon for liquid in the pool. The fuel chute pipe 
originally ran from the lower lock valve at the outside wall at the 
bottom of the spent fuel pit (SFP) on a diagonal path to the outer 
shell of the vapor container (VC), through the shell and into the 
VC. During former plant operations a blank flange was inserted in 
the pipe, outside the VC shell, in order to maintain VC leak tight 
integrity.
    As part of the NRC Bulletin 94-01 project, one 8-foot length of 
this 12 inch diameter fuel chute pipe was removed from the top of 
the lower lock valve and a blank flange placed over the lower lock 
valve so that the valve could be encased in concrete. This, in 
effect, made the valve part of the SFP wall. The removal of this 
section of pipe also eliminated a potential leak path through the 
pipe out of the SFP wall.
    Isolation of the Fuel Chute, accomplished by removing the lowest 
flanged pipe section and sealing the lower portion of the Fuel Chute 
with concrete, eliminated a freezing and siphon hazard. Sealing the 
Fuel Chute with concrete prevents accumulation of water in the Fuel 
Chute. Accumulated water could freeze during severe winter weather 
and possibly damage the lower lock valve outside the spent fuel pool 
wall, thus opening a leak path near the bottom of the spent fuel 
pool.
    Petitioners incorrectly maintain that the Licensee did not need 
to remove the upper Fuel Chute in order to comply with NRC Bulletin 
94-01. The licensee did not remove the upper fuel chute. The 
licensee has fastened a blank flange at the wall of the VC by 
wedging open a flanged joint. This was a maintenance activity. This 
blank flange is normally in place and was removed, in the past, when 
fuel transfer operations took place. These transfers are now 
prohibited by the POL. The Fuel Chute isolation project was 
necessary to prevent potential siphon 

[[Page 7830]]
and freezing risks, was one of the actions determined to be an adequate 
response to NRC Bulletin 94-01, and brought the Licensee into 
compliance with NRC requirements.
    In any event, this activity is not decommissioning, but 
maintenance and a safety upgrade that would have been allowed under 
the pre-1993 interpretation of the Commission's decommissioning 
regulations.
    In view of the above, this activity was permissible, before 
approval of a decommissioning plan, under the pre-1993 
interpretation of the Commission's decommissioning regulations.

(6) Removal of Emergency Diesel Generators

    Petitioners acknowledge that removal of the emergency diesel 
generators is a permissible activity prior to final approval of a 
decommissioning plan.

(7) Spent Fuel Pool Electrical Conduit Installation

    This activity involved underground installation of a power cable 
and its protective covering and did not involve the removal of 
radioactive material. The modification also enhanced the integrity 
and long-term safe storage of spent fuel in the Spent Fuel Pool, by 
isolating Spent Fuel Pool power supplies from potential problems 
that could be caused by power circuits in other systems or heavy 
load impacts at the plant. The activity was part of the Licensee's 
overall project to enhance the safety of the Spent Fuel Pool by 
establishing independent systems dedicated to Spent Fuel Pool 
reliability.
    The conduit installation was also consistent with NRC Bulletin 
94-01, specifically the first requested action, which involves 
ensuring the integrity of structures and systems, necessarily 
including electrical systems, required for containing, cooling, 
cleaning, level monitoring and makeup of water in the Spent Fuel 
Pool. The conduit installation project enhanced integrity of the 
spent fuel pool by ensuring operability and adequacy of structures 
and systems required for spent fuel pool integrity, specifically the 
electrical system.
    Petitioners object that the November 2, 1995 letter implies that 
this activity is a decommissioning activity because it will provide 
a separate power supply for future decommissioning activities. 
Petitioners contend that there is no present threat to the integrity 
of the spent fuel pool, and that as long as the Licensee performs no 
major dismantlement activities, there is no immediate need for 
conduit installation.
    While it is true that conduit installation will isolate the 
spent fuel power supply from potential problems associated with 
future decommissioning of other systems, conduit installation also 
serves the larger purpose of isolating spent fuel pool power 
supplies from potential problems that could be caused by power 
circuits in other systems at the plant, wholly apart from the 
conduct of any decommissioning activities. This activity represents 
a safety enhancement.
    In view of the above, this activity was permissible, before 
approval of a decommissioning plan, under the pre-1993 
interpretation of the Commission's decommissioning regulations.

(8) Brookhaven National Laboratory Cable Sampling Project

    Petitioners acknowledge that this activity is a research project 
unrelated to decommissioning.

(9) Radioactive Materials Shipments

    Under the pre-1993 interpretation of the Commission's 
decommissioning regulations and 10 CFR Sec. 50.59, the NRC has 
permitted shipment of radioactive waste and contaminated components 
prior to approval of a decommissioning plan, as long as it does not 
materially and demonstrably affect the methods or options available 
for decommissioning or substantially increase the cost of 
decommissioning, and because such shipments do not constitute a 
``major'' activity.
    NRC staff practice prior to 1993 permitted activities such as 
shipment of waste or contaminated components at a permanently 
defueled facility pursuing decommissioning. Prior to approval of a 
decommissioning plan, the licensee may dismantle and dispose of 
nonradioactive components and structures not required for safety in 
the shutdown condition. After issuance of a possession-only license, 
the licensee also may dismantle and dispose of radioactive 
components not required for safety in the shutdown condition, 
provided that such activity does not involve major structural or 
other major changes and does not foreclose alternative 
decommissioning methods or materially affect the cost of 
decommissioning. Long Island Lighting Company (Shoreham Nuclear 
Power Station, Unit 1), CLI-91-08, 33 NRC 461, 471 (1991), approving 
staff recommendations in SECY-91-129, ``Status and Developments at 
the Shoreham Nuclear Power Station'' (May 13, 1991). See also NRC 
Inspection Manual, Chapter 2561, Secs. 06.06 and 06.07 (March 20, 
1992); Fort St. Vrain Nuclear Generating Station Amendment No. 82 to 
Facility Operating License No. DPR-34 (Possession-Only License, May 
21, 1991); and Rancho Seco Nuclear Generating Station Amendment No. 
117 to Facility Operating License No. DPR-54 (Possession-Only 
License, March 17, 1992).
    Petitioners contend that the February 2, 1996, letter of the NRC 
staff applied the post-1993 interpretation of the Commission's 
decommissioning regulations to determine that shipment of low-level 
radioactive waste is permissible,\9\ based on the staff's citation 
to SECY 92-382 and the associated June 30, 1993 SRM. The particular 
language Petitioners point to is:

    \9\ Petitioners incorrectly contend that the staff's conclusion, 
that the methods or options available for decommissioning will not 
be materially or demonstrably affected because the Licensee's 
activities involve approximately 2.3 curies of residual activity, 
constitutes application of the Licensee's one percent criterion. The 
Licensee had proposed in its letter of October 24, 1995, that 
decommissioning activities involving less than one percent of the 
total curies of non-fuel components not including greater than Class 
C components, are not ``major'' decommissioning activities and thus 
are permissible under the pre-1993 interpretation of the 
Commission's decommissioning regulations. As previously stated, the 
NRC staff does not accept or approve, and did not use, this 
criterion in its February 2, 1996 (or its November 2, 1995) letter 
to determine whether activities proposed by the Licensee, including 
shipping, are ``major'' activities for purposes of permissible 
decommissioning before approval of a decommissioning plan. See, 
e.g., note 5, supra. The staff in fact stated that since the 
Licensee's activities involve only 2.3 curies out of a total 4448 
curies residual activity which must be decommissioned, shipment of 
low-level radioactive waste will not demonstrably affect the methods 
or options available for decommissioning.
---------------------------------------------------------------------------

    Shipment of contaminated reactor internals needed for operation 
could proceed after issuance of a possession-only license because 
such components are not ``major'': i.e., they are not needed to 
maintain safety in the defueled condition. See SECY 92-382, 
``Decommissioning--Lessons Learned'' (November 10, 1992) and Staff 
Requirements Memorandum, ``SECY-92-382--Decommissioning--Lessons 
Learned'' (June 30, 1993).

The staff's February 2, 1996, letter derived this language from a 
discussion at pages 22-24 of SECY-92-382, ``Decommissioning--Lessons 
Learned''.
    The Commission had in fact permitted shipment of low-level waste 
prior to approval of a decommissioning plan under its pre-1993 
interpretation of its decommissioning regulations, as explained 
above. SECY 92-382 accurately stated that the Commission had in fact 
permitted shipment of not only low-level radioactive waste and some 
components, but also some reactor internals, before approval of a 
decommissioning plan.\10\ The particular reference to ``major'' 
components in SECY 92-382 was in the context of permissible shipment 
of waste; that language did not define ``major'' for the purpose of 
determining what components may be dismantled or removed prior to 
approval of a decommissioning plan. No component can be shipped 
unless it is first removed or dismantled, and authority to ship a 
component already removed or dismantled does not ipso facto 
constitute authority to remove or dismantle the component in the 
first place. Likewise, the citation in the NRC staff's February 2, 
1996, letter to Petitioners was not intended to define ``major'' for 
the purpose of determining what components could be dismantled or 
removed prior to approval of a decommissioning plan, but referred to 
what could be shipped. The staff's reference to SECY 92-382 was made 
in the context of permissible shipments only, not permissible 
component dismantling or removal. Regrettably, the staff's February 
2, 1995, reference to SECY 92-382 may have been insufficiently 
detailed to make the purpose of the reference clear.

    \10\ See Long Island Lighting Company (Shoreham Nuclear Power 
Station, Unit 1), CLI-91-8, 33 NRC 461, 471 (1991). See also SECY-
91-129, ``Status and Developments at the Shoreham Nuclear Power 
Station (SNPS)'', p. 3 (May 13, 1991) (contaminated fuel support 
castings and peripheral pieces).
---------------------------------------------------------------------------

    In the case at hand, the Licensee's proposal was to ship low-
level radioactive waste.\11\ 

[[Page 7831]]
The NRC staff's conclusion that the Licensee's proposal to ship 
radioactive waste\12\ is permissible under the pre-1993 
interpretation of the Commission's decommissioning regulations was 
based on the understanding that the proposal was to ship low-level 
radioactive waste, and was not intended to be and was not a 
determination that the removal or dismantling of major components 
was permissible under the pre-1993 interpretation of the 
Commission's decommissioning regulations,\13\ under CAN v. NRC, or 
under CLI-94-14.

    \11\ Petitioners contend that there is no basis to determine the 
accuracy of the Licensee's estimate that it will make 54 shipments 
of low-level radioactive waste between October 1995 and July 1996. 
Petitioners, however, fail to set forth any facts or rationale which 
raise a question as to the reasonableness of the Licensee's estimate 
of the number of shipments.
    \12\ Petitioners state that neither YAEC nor the NRC staff 
provided any information about the radioactivity levels in the 54 
shipments that YAEC estimates it shipped and will ship between 
October 1995 and July 1996, and that the Licensee's January 29, 
1996, estimate of 2.3 curies involved in activities already 
completed does not provide information about radioactivity levels of 
the 54 shipments that YAEC estimates it will have shipped before the 
end of July 1996. The Licensee has now provided that information and 
estimates the total radioactivity involved in the packaging and 
shipment of low-level radioactive waste between November 1, 1995 and 
July 1996, to be 1817 curies. See letter dated February 21, 1996, 
from K. J. Heider, YAEC, to Morton B. Fairtile, NRC. The four 
contested activities, other than shipping, amounted to only 
approximately 8.2001 curies of residual radioactivity.
    \13\ Petitioners assert that the NRC staff's February 2, 1966, 
letter states that the shipment of low-level radioactive waste is 
permitted under the pre-1993 criteria because the radioactivity of 
the shipments amounts to 2.3 curies or less out of the remaining 
4448 curies of residual radioactivity to be decommissioned in the 
form of Class C or less waste. What the staff said was that because 
the Licensee's activities involve approximately 2.3 curies of the 
remaining 4448 curies of residual radioactivity to be decommissioned 
in the form of Class C or less waste, shipment of low-level 
radioactive waste produced by the activities evaluated in the 
staff's November 2, 1995 letter will not materially or demonstrably 
affect the methods or options available for decommissioning the 
Yankee Rowe site.
---------------------------------------------------------------------------

    The Commission's decisions in Long Island Lighting Company 
(Shoreham Nuclear Power Station, Unit 1), CLI-92-1, 33 NRC 61, 73, 
n. 5 (1991) and Sacramento Municipal Utility District (Rancho Seco 
Nuclear Generating Station), CLI-92-2, 35 NRC 47, 61, n. 7 (1992) do 
not, as Petitioners contend, prohibit shipment of low-level 
radioactive waste. No issue concerning such shipments was addressed 
in those decisions. The language cited by Petitioners paraphrases 
the general guideline, that ``major dismantling and other activities 
that constitute decommissioning under the NRC's regulations must 
await NRC approval of a decommissioning plan'', and is derived from 
the 1988 Statement of Consideration, ``General Requirements for 
Decommissioning Nuclear Facilities'', supra. As explained above, it 
was agency practice before 1993 to permit shipment of low-level 
radioactive waste and contaminated components before approval of a 
decommissioning plan.
    Rather than store low-level radioactive waste on-site for 
extended periods, it has long been agency policy that such waste 
should be shipped to disposal sites if the ability to dispose of 
waste at a licensed disposal site exists. Shipping of waste at the 
earliest practicable time minimizes the need for eventual waste 
reprocessing due to possibly changing burial ground requirements and 
reduces occupational and non-occupational exposures and potential 
accident consequences. NRC Generic Letter 81-38, ``Storage of Low-
Level Radioactive Wastes at Power Reactor Sites'' (November 10, 
1981).
    Petitioners contend that YAEC may not ship low-level radioactive 
waste because the Yankee Rowe Possession-Only-License does not 
permit it.14 Although Petitioners are correct that no language 
in the Yankee Rowe POL explicitly states that shipment of low-level 
radioactive waste is authorized, the Yankee Rowe POL does authorize 
that activity. Section 1.H. of the POL, issued August 5, 1992, 
authorizes Yankee Rowe to receive, possess and use byproduct, source 
and special nuclear materials in accordance with the Commission's 
regulations in 10 CFR Parts 30, 40 and 70. Authority to ship low-
level radioactive waste is conferred upon all byproduct material, 
source material and special nuclear material licensees by NRC 
regulations at 10 CFR Parts 30, 40 and 70. Byproduct materials 
licensees, source materials licensees, and special nuclear materials 
licensees, including Yankee Rowe, are authorized to transfer such 
material, as long as the recipient is authorized, see 10 CFR 
Secs. 30.41, 40.51, and 70.42, and as long as preparation for 
shipment and transport is in accordance with the requirements of 10 
CFR Part 71. See 10 CFR Secs. 30.34(c), 40.41(c), 70.41(a). In 
particular, Section 2.C. of the Yankee Rowe POL states that the POL 
is deemed to contain and is subject to 10 CFR Secs. 30.34 and 40.41. 
Accordingly, the POL authorizes the transport of low-level 
radioactive waste from Yankee Rowe.

    \14\  Petitioners claim that the Commission's decommissioning 
regulations prohibit low-level radioactive waste shipments that are 
not authorized by YAEC's license, citing the 1988 Statement of 
Consideration. See ``General Requirements for Decommissioning 
Nuclear Facilities'', 53 FR 24025-26 (June 27, 1988). The Statement 
of Consideration makes no mention of shipment of low-level 
radioactive waste. The language cited gives examples of activities 
which licensees may conduct before approval of a decommissioning 
plan, but does not state or imply that the list is inclusive: 
``Although the Commission must approve the decommissioning 
alternative and major structural changes to radioactive components 
of the facility or other major changes, the licensee may proceed 
with some activities such as decontamination, minor component 
disassembly, and shipment and storage of spent fuel if these 
activities are permitted by the operating license and/or 
Sec. 50.59''. (Emphasis added)
---------------------------------------------------------------------------

    Petitioners state that the ``cardinal consideration'' which 
determines whether a decommissioning activity is ``major'' should be 
the radiation dose it yields, not the radioactivity of the component 
involved 15, and thus the NRC staff's February 2, 1996, letter 
erroneously relied upon the number of curies shipped rather than the 
radioactive doses involved in shipping low-level waste to determine 
whether the activity is permissible.16

    \15\  The Commission has not articulated as a criterion, for 
determining what constitutes a ``major'' decommissioning activity, 
the radiation dose yielded by the activity, and Petitioners cite no 
authority for this argument. Nor has the Commission articulated the 
radioactivity involved as a criterion for determining what 
constitutes ``major'' decommissioning activity.
    \16\ The staff mistakenly understood the License's letter of 
January 29, 1996 to mean that the activities evaluated by the 
staff's November 2, 1995 letter involved 2.3 curies. The 
radioactivity involved in the four contested activities, other than 
shipping of low-level radioactive waste, amounted to approximately 
8.2001 curies of residual radioactivity. (Removal of the Upper 
Neutron Shield Tank involved less than 5 curies, and removal of the 
Component Cooling Water System pipes and components and Spent Fuel 
Cooling System pipes and components involved 1.2001 curies. See 
letter dated October 19, 1995, from Russell A. Mellor, YAEC, to 
Morton B. Fairtile, NRC. Fuel Chute Isolation involved 2 curies, and 
spent fuel pool electrical conduit installation involved no curies. 
See letter dated February 21, 1996, from K. J. Heider, YAEC, to 
Morton B. Fairtile, NRC.) In addition, the Licensee estimated that 
since completion of the activities described in the NRC letter, 
activities have been authorized by the Licensees' Manager of 
Operations which remove components containing a total of 2.3 curies 
of radioactive material. See letter dated January 29, 1996, from 
Andrew C. Kadak, YAEC, to William T. Russell, NRC.
---------------------------------------------------------------------------

    The criteria for determining whether shipments of low-level 
radioactive waste will demonstrably affect the methods or options 
available for decommissioning have not been well-defined. During 
review of the Petition and its supplement, the NRC staff has 
continued to examine the question of whether the Licensee's 
shipments of low-level radioactive waste will demonstrably affect 
the methods or options available for decommissioning. In this case, 
the staff has now also compared the radiation dose involved in the 
packaging and shipping of the low-level radioactive waste with the 
radiation dose estimated for decommissioning of the Licensee's 
facility. This is because, under Petitioners' theory regarding the 
choice of the decommissioning option, as we understand it, it seems 
that adoption of a different decommissioning option would most 
likely be required to reduce dose. The Licensee estimates that the 
radiation dose involved in the packaging and shipment of low-level 
radioactive waste between November 1, 1995 and July 1996 to be 17 
person-rem.17 The estimated total radiation exposure for 
decommissioning the facility is 755 person-rem.18 The estimated 
dose from packaging and shipping is approximately 2% of the total 
dose from decommissioning. As can be seen, most of the dose will be 
incurred in activities other than shipment of low-level radioactive 
waste. As the Commission has previously held in this case, even 
potential dose reductions on the order of 900 person-rem, unless 
there is some extraordinary aspect to the case not apparent, cannot 
have ALARA significance such that one decommissioning option 

[[Page 7832]]
would be preferable to another.19 Accordingly, the staff concludes 
that the Licensee's shipment of low-level radioactive waste will not 
demonstrably affect the methods and options available for 
decommissioning.

    \17\ See letter dated February 21, 1996, from K. J. Heider, 
YAEC, to Morton B. Fairtile, NRC.
    \18\ Order Approving the Decommissioning Plan and Authorizing 
Decommissioning of Facility (Yankee Nuclear Power Station), 
``Environmental Assessment by the U.S. Nuclear Regulatory Commission 
Related to the Request to Authorize Facility Decommissioning'', p. 
22.
    \19\ Yankee Atomic Electric Company, CLI-96-01 (January 16, 
1996).
---------------------------------------------------------------------------

    In view of the above, the shipments of low-level radioactive 
waste between October 1995 and July 1996, before approval of a 
decommissioning plan, is permissible under the pre-1993 
interpretation of the Commission's decommissioning regulations.
    B. The five contested activities will neither individually nor 
collectively substantially increase the costs of decommissioning.
    YAEC estimates the cost of shipment and disposal of all low-
level radioactive waste between the October 1995 issuance of CLI-95-
14 and the scheduled date of completion of the hearing in mid-July 
1996, to be $6.5 million, or approximately 1.75 percent of the 
estimated $368.8 million total decommissioning cost. It would be 
speculative to conclude that the decommissioning method proposed by 
Petitioners, SAFSTOR, would be less expensive. There is no evidence 
that the Licensee's shipments will increase decommissioning costs or 
that continued storage of the waste will decrease the ultimate 
costs. Thus, the staff concludes that YAEC's shipment of low-level 
radioactive waste will not substantially increase the costs of 
decommissioning.
    Petitioners erroneously contend that the cost of shipments of 
low-level radioactive waste could be reduced by postponing the 
packaging and shipment of low-level waste, presumably because some 
waste may decay to levels such that the volume of waste which will 
require shipment would decrease. Delay will not significantly reduce 
the volume of waste shipped because the waste is not segregated by 
the radioactive isotope involved, and some of the radioactive 
isotopes involved have very long half-lives, i.e., nickel-63 has a 
half-life of 100 years. Cobalt-60, which has a half-life of 5.27 
years, was the isotope selected by the Petitioners to postulate a 
reduction in waste volume. Moreover, delay could possibly increase 
decommissioning costs because shipping and burial costs may 
increase.
    The Licensee estimates costs for the five activities contested 
by Petitioners to be $6.5 million for shipments of low-level waste 
between October 1995 and July 1996 and $2.4 million for the four 
other contested activities,20 for a total of $8.9 million, or 
2.1% of the $368.8 million estimated total decommissioning costs. 
There is no evidence that these activities will give rise to 
consequences that will increase the total cost of decommissioning. 
Accordingly, the five contested activities will not substantially 
increase decommissioning costs, either individually or collectively.

    \20\ The Licensee spent $610,000 on the four activities in the 
fourth quarter of 1995, which is approximately 25 percent of the 
estimated total cost for these four activities. See Letter dated 
February 15, 1996, from Russell A. Mellor to Morton B. Fairtile.
---------------------------------------------------------------------------

    C. Petitioners' Request for an Inspection and Inspection Report 
Was Granted.
    Petitioners' request for reinspection of Yankee Rowe to 
determine compliance with CLI-95-14 and for issuance of an 
inspection report was granted. NRC Region I inspected the Yankee 
Rowe facility for a second time on December 5-18, 1995, to determine 
compliance with CLI-95-14. NRC Inspection Report No. 50-029/95-07 
was issued January 31, 1996. The Inspection Report concludes that 
the Licensee's activities were conducted in accord with the 
specifications of the staff's November 2, 1995 letter. The first 
inspection was conducted in October 1995, before the provision of 
technical guidance or criteria to assist the Region in determining 
compliance with CLI-95-14. Subsequently, the NRC staff issued its 
letter of November 2, 1995, evaluating the nine activities, all of 
which are permitted by CAN v. NRC and CLI-95-14, as explained above.
    Petitioners claim that the January 31, 1996 Inspection Report 
merely repeats the staff's erroneous interpretation of the 
Commission's decommissioning standards, and thus constitutes no 
relief. The inspection report explicitly states that the nine 
activities evaluated by the staff's November 2, 1995 letter were 
inspected and that the Licensee limited the scope of its work to 
those activities. Petitioners' disagreement with the staff's 
conclusion that the nine activities are in compliance with CAN v. 
NRC and CLI-95-14 does not constitute denial of Petitioners' request 
for an inspection and an inspection report to determine compliance 
with CAN v. NRC and CLI-95-14.

IV. Conclusion

    For the reasons given above, Petitioner's request that shipments 
of low-level radioactive waste be prohibited is denied, and 
Petitioners' request that four other activities be prohibited is 
moot.21 Additionally, Petitioners' request for an inspection of 
Yankee Rowe to determine compliance with CLI-95-14 and an inspection 
report was granted.

    \21\ Petitioners claim that the NRC erroneously found on 
February 2, 1996, that the request for emergency relief was moot in 
part. Petitioners assert that the Licensee continues to unlawfully 
ship low-level radioactive waste and that on January 29, 1996, the 
Licensee stated that it is considering whether to conduct seven 
activities, in addition to the nine evaluated by the staff's 
November 2, 1995, letter. The February 2, 1996, letter of the staff 
and this Decision explicitly denied Petitioner's request to prohibit 
shipment of low-level radioactive waste, and made no finding that 
this request is moot. The February 2, 1996, letter and this Decision 
explicitly state that Petitioners' request for emergency relief 
regarding the remaining four contested activities was moot because 
those activities had been completed before the submission of the 
Petition. Nonetheless, both the February 2, 1996 letter and this 
Decision found that those four activities were permissible, prior to 
approval of a decommissioning plan, under the pre-1993 
interpretation of the Commission's decommissioning regulations. 
Neither the staff's February 2, 1996, letter, nor this decision 
address the seven activities which the Licensee states it is now 
considering. The staff will address those activities in a 
supplemental Director's Decision, as required by the Commission's 
order of February 15, 1996.
---------------------------------------------------------------------------

    As provided by 10 CFR Sec. 2.206(c), a copy of this Decision 
will be filed with the Secretary of the Commission for the 
Commission's review. The Decision will become the final action of 
the Commission 25 days after issuance, unless the Commission on its 
own motion institutes review of the Decision within that time.

    Dated at Rockville, Maryland this 22nd of February, 1996.

    For the Nuclear Regulatory Commission.
William. T. Russell,
Director, Office of Nuclear Reactor Regulation.
[FR Doc. 96-4683 Filed 2-28-96; 8:45 am]
BILLING CODE 7590-01-P