Due to developments occurring while the appeals were pending, the Appeal Board vacates the Licensing Board's disposition of Contentions 4(c), 4(d), 4(e), 4(g), 2(k), 2(p), 2(s), 2(u), and 2(h), found in LBP-89-35, 30 NRC 677 (1989), and LBP-90-9, 31 NRC 150 (1990). Even if these new developments did not compel vacation of the Licensing Board's decisions, the Appeal Board concludes that reopening the record on these contentions would be warranted. In addition, the Appeal Board reverses the Licensing Board's disposition of these contentions, as well as Contention 4(a). Finally, the Appeal Board orders the Director of NMSS to revoke the materials license amendment authorized by LBP-90-9, and it terminates the entire proceeding.
RULES OF PRACTICE: STAY OF AGENCY ACTION (IRREPARABLE INJURY)
Whether the moving party will be irreparably injured unless a stay is granted is "'[t]he most significant fact in deciding whether to grant a stay request.'" ALAB-928, 31 NRC 263, 267-69 (1990).
NRC POLICY: TRANSFER OF JURISDICTION TO AGREEMENT STATE
ATOMIC ENERGY ACT (AEA): TRANSFER OF JURISDICTION TO AGREEMENT STATE
The unquestionable intent of NRC policy on the state agreement [*2] process under section 274 of the AEA, is that jurisdiction is to be transferred to an "agreement state" in an orderly manner with minimal disruption to any pending licensing proceeding. See "Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement", 46 Fed. Reg. 7540, 7543 (1981).
NRC POLICY: TRANSFER OF JURISDICTION TO AGREEMENT STATE
ATOMIC ENERGY ACT (AEA): TRANSFER OF JURISDICTION TO AGREEMENT STATE
The transfer of NRC's jurisdiction over section 11(e)(2) byproduct material to an agreement state in and of itself does not necessarily demand immediate termination of an existing NRC licensing proceeding.
RULES OF PRACTICE: MOOTNESS (PENDING APPEAL)
ADJUDICATORY PROCEEDINGS: MOOTNESS (PENDING APPEAL)
It is the duty of an appellate court, upon motion, to reverse or vacate the judgment below and remand with a direction to dismiss an action that has become moot "through happenstance" while pending on appeal. United States v. Munsingwear, Inc. 340 U.S. 36, 39-40 (1940).
RULES OF PRACTICE: MOOTNESS
ADJUDICATORY PROCEEDINGS: MOOTNESS (PENDING APPEAL)
The Munsingwear [*3] principle is applicable to unreviewed administrative decisions. See A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324 (1961).
RULES OF PRACTICE: MOOTNESS
ADJUDICATORY PROCEEDINGS: MOOTNESS
"Mootness" means the absence of a "case or controversy"; i.e., "the issues presented are no longer 'live' of the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969).
RULES OF PRACTICE: MOOTNESS
ADJUDICATORY PROCEEDINGS: MOOTNESS
A party must overcome a "heavy" burden to demonstrate mootness. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).
RULES OF PRACTICE: MOOTNESS (PENDING APPEAL)
ADJUDICATORY PROCEEDINGS: MOOTNESS (PENDING APPEAL)
Vacating the lower court's decision is fitting only if "happenstance" prevents the completion of appellate review and if that procedure does not prejudice the rights of any of the parties. Munsingwear, 340 U.S. at 40. See also Karcher v. May, 484 U.S. 72, 83 (1987); United States v. Garde, 848 F.2d 1307, 1310 & n.6 (D.C. Cir. 1988).
RULES OF PRACTICE: FINAL AGENCY ACTION
Although a Licensing [*4] Board's initial decision on appeal is "preliminary," it nonetheless becomes "immediately effective" insofar as it provides the authority for license issuance, which latter action is considered final for purposes of judicial review. See 10 C.F.R. @ 2.764(b); Massachusetts v. NRC, No. 89-1306, slip op. at 17-19 (D.C. Cir. Jan. 25, 1991); Oystershell Alliance v. NRC, 800 F.2d 1201 (D.C. Cir. 1986).
RULES OF PRACTICE: MOOTNESS (PENDING APPEAL)
ADJUDICATORY PROCEEDINGS: MOOTNESS (PENDING APPEAL)
"There is ample room for discretion in deciding whether a case is moot, or whether some practical purpose would be served by deciding the merits. If there is an adequate reason to preserve the judgment, the appeal should be decided." 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure @ 3533.10, at 430 (2d ed. 1984). See also Pickus v. United States Bd. of Parole, 543 F.2d 240, 242 (D.C. Cir. 1986).
REGULATIONS: 10 C.F.R. PART 40, APPENDIX A
UMTRCA: NRC REGULATIONS; TAILING DISPOSAL SITES
Criterion 6 establishes the basic performance standard for a mill tailings disposal system -- there must be reasonable assurance of [*5] control of radiological hazards for 1,000 years, and in any event for at least 200 years, and of limiting releases of radon-222 from uranium byproduct materials, and radon-220 from thorium byproduct materials, to the atmosphere. See 10 C.F.R. Part 40, App. A, Criterion 6.
RULES OF PRACTICE: NEW MATERIAL; VACATION
ADJUDICATORY PROCEEDINGS: NEW MATERIAL; VACATION
Agency case law makes clear that, when circumstances change while an adjudicatory decision is pending on appeal so as to supersede or to alter in a significant way the evidentiary basis of that decision, the decision should be vacated. See Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677, 15 NRC 1387 (1982).
RULES OF PRACTICE: NEW MATERIAL; VACATION
ADJUDICATORY PROCEEDINGS: NEW MATERIAL; VACATION
Vacation of a decision may be appropriate if the Appeal Board finds that new information is "material to the resolution of the issues before [it]" and that, "with appropriate opportunity for comment or rebuttal, [the information] might well have changed the outcome of the appeal." Browns Ferry, ALAB-677, 15 NRC at 1393.
RULES OF PRACTICE: NEW MATERIAL; [*6] VACATION
ADJUDICATORY PROCEEDINGS: NEW MATERIAL; VACATION
COMMISSION PROCEEDING(S): PRECEDENT
If an Appeal Board decision "was based on a record that no longer represents the [current] situation . . . and will not be reviewed by the Commission, that decision [should be] vacated and shall be given no weight as a precedent." Browns Ferry, CLI-82-26, 16 NRC 880, 881 (1982).
RULES OF PRACTICE: NEW MATERIAL; VACATION
ADJUDICATORY PROCEEDINGS: NEW MATERIAL; VACATION
If, while a Licensing Board's decision is pending on appeal, the applicant indicates its intention to alter its plans substantially, the Appeal Board may vacate the Licensing Board's decision without prejudice. See Delmarva Power & Light Co. (Summit Power Station, Units 1 and 2), ALAB-516, 9 NRC 5 (1979).
RULES OF PRACTICE: NEW MATERIAL; VACATION ADJUDICATORY PROCEEDINGS: NEW MATERIAL; VACATION
FEDERAL COURTS: VACATION
Agency practice of vacating a decision when circumstances change so as to alter effectively the evidentiary record supporting a decision on appeal is fully consistent with federal court practice. Rule 60(b) of the Federal Rules of Civil Procedure provides [*7] that new evidence diligently discovered after trial and decision or "any other reason justifying relief" can deprive a judgment of its operative effect. The "other reason" language in Rule 60(b) simply "vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice." Klapprott v. United States, 335 U.S. 601, 614-15 (1949).
RULES OF PRACTICE: BURDEN OF PROOF
As the applicant of a license has the burden of proof, the principal focus of the hearing is accordingly on its presentation, not the staff's. See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 345 (1973); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807, review declined, CLI-83-32, 18 NRC 1309 (1983).
ADJUDICATORY HEARINGS: CONSIDERATION OF NRC STAFF NEPA REVIEW
NEPA: NRC RESPONSIBILITIES
The adequacy of the staff's environmental review can be challenged in a hearing. Diablo Canyon, ALAB-728, 17 NRC 777, 807.
NEPA AND AEA: JURISDICTION; REQUIREMENTS
A finding of adequate protection of radiological health and safety under the AEA [*8] and UMTRCA, does not necessarily mean that the NRC staff's environmental review under NEPA is sufficient. See generally Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 729-30 (3d Cir. 1989).
RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES (TO INFORM OF NEW INFORMATION)
There is a long-established obligation imposed on all parties in NRC adjudicatory proceedings to call to the attention of both the Licensing Board and other parties "new information which is relevant and material to the matters being adjudicated." Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 625 (1973).
STAFF TECHNICAL POSITIONS: APPLICATION REGULATORY GUIDES: APPLICATION
Staff technical positions and the like do not have the force of regulations; rather, they provide guidance to applicants as to acceptable methods for implementing regulatory criteria. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, 811 (1974); Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 406-07 (1978). "Simply stated, [such] staff guidance generally sets neither minimum nor maximum standards." [*9] Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-725, 17 NRC 562, 568 n.10 (1983).
RULES OF PRACTICE: REOPENING OF RECORD
Under the Commission's Rules of Practice, a closed record will not be reopened unless the movant satisfies the three criteria found in 10 C.F.R. @ 2.734(a) -- timeliness, safety or environmental significance, and materiality. In addition, "[t]he motion must be accompanied by one or more affidavits which set forth the factual and/or technical bases for the movant's claim that the [three] criteria . . . have been satisfied." 10 C.F.R. @ 2.734(b).
RULES OF PRACTICE: REOPENING OF RECORD STAFF TECHNICAL POSITIONS: SIGNIFICANCE
A staff "working paper" that serves only to explore a new approach and that does not conflict with staff expert testimony in a proceeding is of no regulatory significance. Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), ALAB-209, 7 AEC 971, 973-74 (1974). As such, a motion to reopen based solely on such a working paper will be denied. Id. at 972-74.
APPEAL BOARD(S): AUTHORITY; ACTION ON NEW MATTERS
Although an Appeal Board has the authority to hear evidence and decide [*10] matters in the first instance,the exercise of that authority has always been solely a matter of discretion, dependent upon the particular circumstances of the case and available resources.
UMTRCA: PURPOSE
Congress enacted UMTRCA in 1978 to ameliorate the health and environmental hazards presented by uranium and thorium mill tailings. The purposes of UMTRCA are twofold: first, to provide a remedial action program at inactive mill tailings sites, Pub. L. No. 95-604, @ 2(b)(1), 92 Stat. 3022 (1978); and second, to provide a program for the regulation of "mill tailings during uranium or thorium ore processing at active mill operations and after termination of such operations," id. @ 2(b)(2), 92 Stat. 3022.
UMTRCA: NRC REGULATIONS
The validity of the Commission's mill tailings regulations, specifically the 10 C.F.R. Part 40, Appendix A Criteria, has been upheld. Quivira Mining Co. v. NRC, 866 F.2d 1246 (10th Cir. 1989).
UMTRCA: NRC REGULATIONS; NRC RESPONSIBILITY; COST-BENEFIT ANALYSIS
The UMTRCA cost-benefit analysis only requires the Commission to conduct "cost-benefit rationalization" in issuing regulations and managing mill tailings. Quivira, [*11] 866 F.2d at 1251-58. That standard "requires the agency merely to consider and compare the costs and benefits of various approaches,and to choose an approach in which costs and benefits are reasonably related in light of Congress' intent." Id. at 1250 (citing AMC I, 772 F.2d at 632).
UMTRCA: NRC REGULATIONS; NRC RESPONSIBILITY; COST-BENEFIT ANALYSIS
The agency's general endeavor to take into account the "'economics of improvements in relation to benefits to the public health and safety,'" set forth in the fifth paragraph of the Appendix A Introduction, 10 C.F.R. Part 40, ensures that in future licensing actions the costs of regulation bear a reasonable relationship to its benefits. Quivira, 866 F.2d at 1254.
UMTRCA: APPLICATION; NRC REGULATIONS
The fourth introductory paragraph to Appendix A in 10 C.F.R. Part 40, permitting licensees to propose equivalent alternatives to the Commission's criteria, fully meets all of UMTRCA's site-flexibility requirements. Quivira, 866 F.2d at 1259-60.
UMTRCA: APPLICATION; NRC REGULATIONS
The statutory language of UMTRCA makes no positive distinction between new and existing mill tailings sites, and the legislative [*12] history indicates only that NRC is to "consider possible differences in applicability of regulations to existing versus new tailings sites." Quivira, 866 F.2d at 1260 n.17.
UMTRCA: NRC REGULATIONS; TAILING DISPOSAL SITES
Criterion 1 of Appendix A, 10 C.F.R. Part 40, sets forth the siting requirements of the Commission's mill tailings regulations. Among other things, Criterion 1 requires that the following three site features be considered in assessing the adequacy of a disposal site: (1) remoteness from populated areas; (2) hydrologic and other natural conditions that contribute to the isolation of tailings from groundwater; and (3) the potential for minimizing erosion over the long term. 10 C.F.R. Part 40, App. A, Criterion 1.
REGULATIONS: INTERPRETATION
The starting point in interpreting any regulation is the language and structure of the provision itself. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275, 288, review declined, CLI -88-11, 28 NRC 603 (1988); 1A Sutherland, Statutory Construction @ 31.06 (4th ed. 1984).
REGULATIONS: INTERPRETATION
In interpreting a regulation, we must bear in mind the [*13] elementary canon of construction that the regulation should be interpreted so as not to render any part inoperative; the whole of the regulation must be given effect. See Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249-50 (1985); 2A Sutherland, Statutory Construction @ 46.06.
REGULATIONS: INTERPRETATION
"Although administrative history and other available guidance may be consulted for background information and the resolution of ambiguities in a regulation's language, its interpretation may not conflict with the plain meaning of the wording used in that regulation." Shoreham, ALAB-900, 28 NRC at 288.
REGULATIONS: INTERPRETATION
Disregarding portions of a regulation is a wholly unacceptable method of regulatory construction. Rather, the regulation must be read as it is written and in its entirety. See Natural Resources Defense Council v. EPA, 822 F.2d 104, 113 (D.C. Cir. 1987). See also Mountain States, 472 U.S. at 249-50; 2A Sutherland, Statutory Construction @ 46.06.
UMTRCA: NRC REGULATIONS; TAILING DISPOSAL SITES
In judging the adequacy of an existing tailings site against the three siting features [*14] of Criterion 1 in 10 C.F.R. Part 40, Appendix A, and then comparing that site to alternative sites measured against the same siting requirements,the differences between sites become matters of degree; they are nonetheless to be measured by the same yardstick.
REGULATIONS: INTERPRETATION
While care must always be taken not to apply dictionary definitions mechanically in unintended contexts, see Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 764 (1949), such application is appropriate where the purpose of the Commission's word choice is evident.
UMTRCA: NRC REGULATIONS; TAILING DISPOSAL SITES
"[S]iting is of paramount importance in developing optimum tailings disposal programs. The problem of tailings disposal cannot be approached with the attitude that inadequate siting features can be compensated for by design." 45 Fed. Reg. 65,521, 65,524 (1980).
UMTRCA: NRC REGULATIONS; TAILING DISPOSAL SITES (NO ACTIVE MAINTENANCE)
Criterion 12 of Appendix A, 10 C.F.R. Part 40, requires that the final disposition of mill tailings must be such that ongoing active maintenance is not necessary to preserve isolation. See also 10 C.F.R. Part 40, App. A, [*15] Criterion 1.
UMTRCA: NRC REGULATIONS; TAILING DISPOSAL SITES REGULATIONS: INTERPRETATION (10 C.F.R. PARTS 40 AND 61)
It is clear from the Part 61 regulations themselves that the Commission did not intend for any part thereof to be applied to Part 40 mill tailings disposal. See 10 C.F.R. @ 61.2.
REGULATIONS: INTERPRETATION
If regulations are to have any meaning, express exclusions and prohibitions must be obeyed. In some circumstances, if a regulation does not define a particular term, it may be acceptable to borrow the definition of a like term from another part of an agency's regulations. But this can never be the case where there are specific prohibitions against such application.
RULES OF PRACTICE: SUMMARY DISPOSITION
Only if there are no genuine issues of material fact and the moving party is entitled to a decision as a matter of law, may the presiding officer grant a motion for summary disposition. 10 C.F.R. @ 2.749(d). See, e.g., Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units Nos. 3 and 4), ALAB-660, 14 NRC 987, 1003 (1981) (citing Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), [*16] ALAB-584, 11 NRC 451, 453 (1980)).
RULES OF PRACTICE: SUMMARY DISPOSITION (MATERIAL FACT)
A material fact is one that affects the outcome of the litigation or tends to resolve any of the issues raised by the parties. See generally 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure, @ 2725, at 93-95 (1983).
RULES OF PRACTICE: SUMMARY DISPOSITION (MATERIAL FACT)
If a disputed issue of material fact exists, a motion for summary disposition must fail. See, e.g., Public Service Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB-924, 30 NRC 331, 345-47 (1989).
RULES OF PRACTICE: SUMMARY DISPOSITION
In weighing the evidence, it is well-settled that all inferences must be drawn in favor of the party opposing summary disposition. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
RULES OF PRACTICE: SUMMARY DISPOSITION; EXPERT WITNESS(ES)
As has been observed, "[e]xpert opinion is admissible and may defeat summary judgment if it appears the affiant is competent to give an expert opinion and the factual basis for the opinion is stated in the affidavit, even though the underlying factual details and reasoning upon which [*17] the opinion is based are not." Bulthuis v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir. 1985). See also Fed. R. Evid. 703, 705.
UMTRCA: NRC RESPONSIBILITY; COMPLIANCE WITH EPA REGULATIONS
Concerning the longevity requirement of Criterion 6, the Commission recognized that "EPA's primary design standard is 1,000 years. Accordingly, the Commission has no discretion to promulgate a different design standard for a shorter period." 50 Fed. Reg. at 41,856 (1985). "The 200-year minimum longevity requirement [of Criterion 6] provides relief in those unique reclamation situations where the 1,000-year criterion can be shown to impose too much of a cost hardship. The Commission views the EPA longevity standard to be 1,000 years unless site specific circumstances preclude meeting 1,000 years." Id. at 41,858.
UMTRCA: NRC REGULATIONS; EPA STANDARDS
The concern of the Commission's mill tailings regulations that the design of tailings disposal sites effectively resist human intrusion can be traced, in part, to the EPA mill tailings regulations that are intended to inhibit the "misuse" of tailings. See 40 C.F.R. @ 192.20(a)(1); AMC I, 772 F.2d at 632-33.
LICENSE: [*18] REVOCATION RULES OF PRACTICE: LICENSE REVOCATION
There no longer being a record and decision to support authorization of a license amendment, it necessarily must be revoked as well. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-902, 28 NRC 423, 434, review declined, CLI-88-11, 28 NRC 603 (1988).
ATOMIC ENERGY ACT (OR AEA): HEARING RIGHT; HEARING REQUIREMENT (MATERIALS LICENSE)
The need for a new license amendment triggers the right to a hearing under section 189(a) of the Atomic Energy Act. 42 U.S.C. @ 2239(a)(1). See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-785, 20 NRC 848, 884 n.163 (1984); id., ALAB-778, 20 NRC 42, 48 (1984), aff'd sub nom. Anthony v. NRC, 770 F.2d 1066 (3d Cir. 1985).
ATOMIC ENERGY ACT (AEA): TRANSFER OF JURISDICTION TO AGREEMENT STATE; HEARING REQUIREMENT
In any byproduct material licensing proceeding conducted by an agreement state, section 274(o)(3) of the AEA requires the State to provide procedures that include (1) an opportunity, after public notice, for written comments and a public hearing, with a transcript, (2) an opportunity for cross [*19] examination, and (3) a written determination which is based upon findings included in such determination and upon the evidence presented during the public comment period and which is subject to judicial review. 42 U.S.C. @ 2021(o)(3). See State Agreement Policy, 46 Fed. Reg. at 7544; 10 C.F.R. @ 150.31(b)(3)(i).
TECHNICAL ISSUES DISCUSSED
Byproduct Material
Cell Design
Erosion
Half-lives
Intrusion Barrier
Mill Tailings
Probable Maximum Precipitation (or PMP)
Radioactivity Waste Storage
Site Suitability
Administrative Judges: Thomas S. Moore, Chairman; Christine N. Kohl; Howard A. Wilber
William D. Seith, Chicago, Illinois (with whom Neil F. Hartigan, Springfield, Illinois, and Michelle D. Jordan, Matthew J. Dunn, Douglas J. Rathe, J. Jerome Sisul, Richard A. Verkler, Joseph Williams, and Joseph M. Claps, Chicago, Illinois, were on the brief and pleadings), for the People of the State of Illinois.
Joseph V. Karaganis, Chicago, Illinois (with whom James D. Brusslan, Chicago, Illinois, and Robert D. Greenwalt, West Chicago, Illinois, were on the brief and pleadings), for the City of West Chicago, Illinois.
Richard A. Meserve, Washington, D.C. (with whom Peter J. Nickles [*20] and Herbert Estreicher, Washington, D.C., were on the brief and pleadings) for applicant Kerr-McGee Chemical Corporation.
Bertram C. Frey and Marc M. Radell, Chicago, Illinois, for amicus curiae United States Environmental Protection Agency.
Ann P. Hodgdon (with whom Patricia Jehle was on the brief and pleadings) for the Nuclear Regulatory Commission staff.
OPINION:
DECISION
Pending before us are the appeals of the People of the State of Illinois ("the State") and the City of West Chicago ("the City") from the Licensing Board's February 1990 initial decision authorizing the issuance of a license amendment to the applicant, Kerr-McGee Chemical Corporation, for its West Chicago Rare Earths Facility. n1 The license amendment permits Kerr-McGee permanently to dispose of approximately 376,400 cubic meters n2 of radioactive thorium "mill tailings" and other associated wastes in an engineered "disposal cell" on 27 acres of the site of its Rare Earths Facility -- a facility that will then be decommissioned. n3 The site is located in the midst of a densely populated residential area in the City of West Chicago in DuPage County, Illinois. The waste is to be piled above grade, several [*21] meters over the water table, on compacted clay soils. A cap is to be placed over the waste, composed of several intermediate layers of clay, geotextile material, and sand and gravel, topped with a two-feet thick "intrusion barrier" of graded clays and cobble and a two-feet thick cover of topsoil and vegetation. All together, the waste pile is to be approximately 35 feet high, with side slopes of 1:5. n4
n1 LBP-90-9, 31 NRC 150 (1990).
n2 According to counsel for the State, this amounts to about 500,000 tons. App. Tr. 8.
n3 "Tailings" are a sand-like substance defined in section 101(8) of the Uranium Mill Tailings Radiation Control Act of 1978 as "the remaining portion of a metal-bearing ore after some or all of such metal, such as uranium, has been extracted." Pub. L. No. 95-604, 92 Stat. 3021, 3023 (1978). "[T] ailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content" is characterized as "byproduct material" under section 11(e)(2) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. @ 2014(e)(2).
n4 NUREG-0904, Supp. No. 1, "Supplement to the Final Environmental Statement Related to the Decommissioning of the Rare Earths Facility, West Chicago, Illinois" (Apr. 1989)[hereinafter SFES], at 3-3 to 3-7, 4-23, 4-85 to 4-87, B-6 to B-12. [*22]
While the appeals were pending, several significant developments occurred, including the Commission's approval of an agreement under section 274 of the Atomic Energy Act (AEA) n5 transferring regulatory jurisdiction over "section 11(e)(2) byproduct material" -- like the mill tailings involved here n6 -- to the State of Illinois. These significant developments subsequent to the rendering of the Licensing Board's decision prompted numerous motions and other filings over the last year from all of the parties, several of which remain undecided.
n5 42 U.S.C. @ 2021.
n6 See supra note 3.
Upon consideration of the lengthy record in this proceeding, the initial decision and related rulings of the Licensing Board, and subsequent pertinent events, we conclude, as explained below, that the Licensing Board's decisions must be vacated, or in the alternative reversed, and the license amendment necessarily must be revoked. We also conclude that this NRC proceeding must be terminated.
I. Background
Kerr-McGee produced thorium at the West Chicago facility from 1967, when it acquired the plant in a merger with American Potash & Chemical Company, to 1973, when it ceased [*23] this operation. The NRC has had the disposal of the waste materials generated at the West Chicago site under consideration since at least 1976. n7 Shortly after Congress enacted the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), n8 the NRC staff issued a notice to Kerr-McGee advising that its existing license for the West Chicago facility was being amended to include a requirement that Kerr-McGee submit a detailed plan for decontamination and decommissioning of the facility and disposal of the ore residues located at the site. n9 Kerr-McGee submitted a "stabilization plan" in August 1979, and several months later the Commission gave notice of its intent to prepare a draft environmental impact statement (DEIS) "to support future licensing action." n10 The DEIS was issued in May 1982, followed a year later by the Final Environmental Statement (FES). The FES prepared by the NRC staff considered eight alternatives, none of which involved permanent onsite disposal, as Kerr-McGee had proposed. The staff recommended approval of onsite storage of the thorium mill tailings for an indeterminate period of time, subject to monitoring before deciding whether to approve [*24] the site and cell design for permanent disposal. n11
n7 See Letter from R. E. Cunningham to Kerr-McGee (Nov. 16, 1978)[hereinafter 1978 Notice].
n8 Pub. L. No. 95-604, 92 Stat. 3021 (codified in scattered sections of 42 U.S.C.).
n9 1978 Notice.
n10 44 Fed. Reg. 72,246 (1979). See generally Kerr-McGee Corp. (West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232 (1982), aff'd sub nom. City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983).
n11 See LBP-84-42, 20 NRC 1296, 1299, 1308, 1313 (1984), reconsideration denied, LBP-85-3, 21 NRC 244 (1985).
Soon thereafter, the Commission issued a notice of opportunity for hearing on the licensing actions recommended in the FES, thus initiating this licensing proceeding. n12 The State's request for a hearing was granted and it was admitted as a party to the litigation. Among the contentions it sought to raise was a challenge to the staff's proposal for indeterminate onsite storage as an improper segmentation under the National Environmental Policy Act (NEPA). n13 The State argued that Kerr-McGee's proposal for permanent onsite storage must be considered and rejected. The Licensing Board agreed that permanent [*25] onsite disposal must be considered, and, accordingly, it directed the staff to prepare and circulate a supplement to its FES addressing this subject. n14 <> n12 48 Fed. Reg. 26,381 (1983). The Commission subsequently directed the formal hearing procedures of 10 C.F.R. Part 2, Subpart G, to apply to this adjudication. Commission Order of Nov. 3, 1983 (unpublished).
n13 42 U.S.C. @ 4321.
n14 LBP-84-42, 20 NRC at 1307-17 & n.45; LBP-85-3, 21 NRC at 251-56.
The instant proceeding essentially remained inactive until 1989, when the staff issued its Supplement to the FES (SFES). n15 The Licensing Board subsequently admitted several of the State's additional contentions based on the SFES. n16 It also ruled on a staff motion to hold the proceeding in abeyance. The occasion for the staff's motion was a then-pending request by the State, asking the Commission to transfer its jurisdiction over section 11(e)(2) byproduct material, like the mill tailings involved here, to the State, pursuant to section 274 of the AEA. The staff estimated that it would take 6 to 12 months for the Commission to complete action on the State's request, and it expressed a desire not to devote further [*26] resources to this proceeding. The State supported the staff's motion to hold the proceeding in abeyance, and Kerr-McGee opposed it. After considering the equities involved and the resources already expended in the litigation, the Board denied the staff's motion and set a schedule for the filing of summary disposition motions and hearing. n17
n15 See supra note 4.
n16 LBP-89-16, 29 NRC 508 (1989); Licensing Board Memorandum and Order of July 12, 1989 (unpublished) [hereinafter July 12 Order].
n17 LBP-89-16, 29 NRC at 516-18.
In the meantime, the United States Environmental Protection Agency (EPA) reviewed the SFES and expressed certain concerns about permanent onsite storage of the mill tailings. n18 Pursuant to its responsibility under UMTRCA, EPA has promulgated the general health and safety standards (the "Mill Tailings Standards," found in 40 C.F.R. Part 192), which the NRC applies and implements in regulating the disposal of mill tailings under its own regulations in 10 C.F.R. Part 40,Appendix A. After being apprised of EPA's concerns about the SFES, the Licensing Board solicited comments from the parties. n19 In addition, the City of West Chicago, which [*27] had not previously sought to participate in the proceeding, n20 petitioned for and was granted permission to participate as an interested government under 10 C.F.R. @ 2.715(c). n21
n18 Board Notification 89-6 (July 12, 1989); Letter from R. Springer to J. Swift (July 27, 1989), and Enclosure [hereinafter EPA Comments on SFES], attached to Letter from D. J. Rathe to J. H Frye (Aug. 21, 1989).
n19 Licensing Board Memorandum and Order of Aug. 24, 1989 (unpublished).
n20 Early in the proceeding, the West Chicago Chamber of Commerce withdrew its petition to intervene. LBP-84-42, 20 NRC at 1299 n.1.
n21 Licensing Board Order of Sept. 5, 1989 (unpublished). This status allows a governmental entity to participate in a hearing and to file an appeal under 10 C.F.R. @ 2.762 without sponsoring its own contentions. See 10 C.F.R. @ 2.715(c).
Following the filing of motions for summary disposition by both Kerr-McGee and the State, the Licensing Board resolved most of the issues in Kerr-McGee's favor,and scheduled a two-day hearing on two of the remaining issues for the next month. n22 On February 13, 1990, the Licensing Board issued the initial decision now before us on review. [*28] The Board concluded that EPA's concerns about the SFES had "no direct impact on the admitted contentions" and thus need not be considered. n23 It then went on to resolve all the remaining issues in Kerr-McGee's favor and, subject to two conditions, authorized the staff to issue a license amendment to Kerr-McGee permitting permanent onsite disposal of the mill tailings in a cell as described in Kerr-McGee's application and supporting materials. n24
n22 LBP-89-35, 30 NRC 677 (1989); Licensing Board Memorandum and Order of Nov. 14, 1989 (unpublished).
n23 LBP-90-9, 31 NRC at 154.
n24 Id. at 194-95.
The State and the City appealed and moved for a stay of the license amendment authorization. Both Kerr-McGee and the staff opposed the grant of a stay. On March 13, 1990, we denied the stay motion, explaining in a subsequent memorandum that we could not find, at that time, any irreparable injury -- "'[t]he most significant fact in deciding whether to grant a stay request.'" n25 In this connection, we noted that
Kerr-McGee's activities and expenditures over the next few months will be quite limited and, for the most part, confined to site work that would have to be conducted [*29] regardless of whether the contaminated soils and sediments involved are ultimately disposed of onsite or at another location. This being so, Kerr-McGee's limited expenditures during the administrative appeal process cannot reasonably be said to skew the ultimate cost-benefit analysis, should it need to be revisited. n26
n25 ALAB-928, 31 NRC 263, 267-69 (1990).
n26 Id. at 268 (footnote omitted).
During the briefing and consideration of the State's and the City's motions for a stay, several related events occurred. On February 23, the staff issued the license amendment to Kerr-McGee. n27 On or about March 6, however, the City issued a "stop work" notice and informed Kerr-McGee that it was obliged to comply with a local ordinance concerning dust control and erosion before commencing the onsite disposal operation. Kerr-McGee challenged the City's action in federal district court. The court denied Kerr-McGee's request for a preliminary injunction and was affirmed on appeal. n28 Thus, although Kerr-McGee's license amendment remains outstanding, disposal activities have apparently not yet begun.
n27 The Commission's Rules of Practice authorize the Director of Nuclear Material Safety and Safeguards to issue license amendments like that here involved within ten days of the Licensing Board's initial decision, despite the pendency of an appeal. 10 C.F.R. @ 2.764(b).
n28 Kerr-McGee Chemical Corp. v. City of West Chicago, 732 F. Supp. 922 (N.D. Ill.), aff'd, 914 F.2d 820 (7th Cir. 1990). The State also sought judicial intercession by the Illinois state court in this matter. It obtained a temporary restraining order, enjoining Kerr-McGee from beginning any construction activities at the site or from interfering with inspection of the facility by State officials. State ex rel. Hartigan v. Kerr-McGee Chemical Corp., No. 90-CH-220 (Ill. 18th Cir. Mar. 14, 1990). [*30]
Before either the State or the City filed their briefs on appeal, we invited EPA to file an amicus curiae brief expressing its views on the Licensing Board's decision. n29 EPA accepted our invitation. In its brief, EPA states that "the disposal method currently approved in the Initial Decision may not meet all of the applicable standards found in 40 C.F.R. Part 192," and recommends that we remand the matter to the Licensing Board for further consideration of the comments EPA submitted to the agency in July 1989 in connection with the SFES. n30
n29 Appeal Board Memorandum and Order of Mar. 21, 1990 (unpublished)(citing Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 315 n.2 (1981)).
n30 Amicus Curiae Brief of the United States Environmental Protection Agency (May 21, 1990) [hereinafter EPA Brief] at 2-3, 15. See supra p. 7.
As a result of EPA's brief, specifying several areas in which that agency believes the Kerr-McGee disposal proposal fails to satisfy the Mill Tailings Standards, the NRC staff requested approximately two additional months in which to file its brief in response to those of the State, the City, and EPA. [*31] The staff's extension request noted that the EPA brief has a "potentially significant bearing on the arguments made by the State and the City." n31 The staff also asserted a need for more time to obtain additional information from Kerr-McGee and to analyze it to determine whether there is warrant for reconsideration of the staff's positions on certain issues in this proceeding, "for example, regarding probable maximum precipitation and associated design and maintenance implications." n32 We granted the staff's request. n33
n31 NRC Staff's Motion for an Extension of Time (May 30, 1990) at 1.
n32 Id. at 2.
n33 Appeal Board Memorandum and Order of June 6, 1990 (unpublished).
Over the next two months, the staff held several meetings with Kerr-McGee, obtaining additional information and details about the disposal cell. n34 At about this same time, the staff was also in the process of reevaluating its generic position on some of the same matters raised by the State during the hearing and questioned by EPA in connection with the SFES. On August 10, the staff filed its brief, opposing the State's and the City's appeals. The staff indicates that it has changed its position [*32] on certain issues from that asserted before the Licensing Board, and that its further, post-hearing review of Kerr-McGee's disposal cell has resulted in "engineering specifications that may vary from the engineering implications of conclusions reached by the Licensing Board." n35 The staff nonetheless concludes that the proposed onsite disposal is adequate to protect the public health and safety and satisfies the requirements of 10 C.F.R. Part 40, Appendix A, "provided . . . that the license is amended to incorporate the specifications for the protective rock and the other design details provided in Kerr-McGee's submissions [to the staff] of July 23, 1990 and July 31, 1990." n36 While the staff acknowledges that the other parties are entitled to an opportunity to respond to this new information, it urges that this process take place before us, without a remand to the Licensing Board. n37
n34 See, e.g., Board Notifications 90-04 (July 13, 1990); 90-05 (July 31, 1990, reissued Aug. 7, 1990); 90-06 (Aug. 3, 1990); 90-08 (Aug. 8, 1990). Although the State and City were permitted to attend these meetings, they were not allowed to participate.
n35 NRC Staff Brief in Response to the Briefs of the State of Illinois, the City of West Chicago and the U.S. Environmental Protection Agency (Aug. 10, 1990) [hereinafter NRC Staff Brief] at 38.
n36 Ibid.
n37 Id. at 38-39. [*33]
The staff's brief prompted a motion from the State and the City to vacate the license amendment issued to Kerr-McGee because
[t]he design approved by the [Licensing Board] is not the design now before the Appeal Board. Indeed, Kerr-McGee and the NRC staff have now rejected the design assumption of the [Licensing Board-] approved project and have offered a new design based on dramatically different technical assumptions. n38
n38 Motion to Vacate as Moot the License Amendment and to Remand . . . to [NMSS] or to Reopen the Record and Remand to Licensing Board (Aug. 31, 1990) [hereinafter Motion to Vacate] at 2 (emphasis in original).
The State and the City request that this matter also be remanded to the Office of Nuclear Material Safety and Safeguards (NMSS) for processing as a new license amendment application. In the alternative, the movants contend that the adjudicatory record be reopened and remanded to the Licensing Board for consideration in the first instance. Kerr-McGee opposes the motion, arguing that any new developments occasioned by the staff's consideration of EPA's concerns are beyond the proper scope of this proceeding. While the staff contends [*34] that we should proceed with review of the Licensing Board's decision, at the same time it has no objection to reopening for our consideration of certain new information. The staff also repeats its earlier view that the other parties should have a chance to respond to this new information.
Following the receipt of the State's, the City's, and Kerr-McGee's briefs in reply to that of the staff, yet another event occurred that would have an effect on this protracted litigation. On October 17, the Commission approved the State's request, pursuant to section 274 of the AEA, for the authority to regulate section 11(e)(2) byproduct material. n39 This agreement, which took effect on November 1, 1990, n40 led to another round of motions. The State and the City now maintain that this proceeding is moot by reason of the Commission's transfer to the State of regulatory control over the mill tailings here involved. Asserting a lack of jurisdiction, they move for termination of the proceeding and vacation of the Licensing Board's initial decision. Kerr-McGee opposes both terminating the proceeding and vacating the Board's decisions, and it urges us to resolve the pending appeals. [*35] It also argues that, if we nonetheless terminate the proceeding, the Licensing Board's decision should be allowed to stand for equitable reasons. The NRC staff argues that the proceeding should be terminated but the decision below should not be vacated.
n39 State of Illinois, CLI-90-9, 32 NRC 210, reconsideration denied, CLI-90-11, 32 NRC 333 (1990), petition for review pending sub nom. Kerr-McGee Chemical Corp. v. United States, No. 90-1534 (D.C. Cir. filed Nov. 14, 1990). The Commission had previously entered into an agreement transferring jurisdiction to the State over other types of nuclear material. See 52 Fed. Reg. 22,864 (1987), review denied sub nom. Kerr-McGee Chemical Corp. v. NRC, 903 F.2d 1 (D.C. Cir. 1990).
n40 55 Fed. Reg. 46,591, 46,593 (1990).
Finally, on December 5, the Illinois Department of Nuclear Safety (IDNS) notified Kerr-McGee that, as a result of the State's recent assumption of jurisdiction over section 11(e)(2) byproduct material, it now has authority over the NRC license issued to Kerr-McGee for the onsite disposal of mill tailings at West Chicago. The IDNS went on to inform Kerr-McGee that its license would expire [*36] within 90 days of receipt of the letter (i.e., March 10, 1991), but that Kerr-McGee could apply for a new license with the IDNS. n41 Kerr-McGee quickly moved for a protective order from us, arguing that the IDNS letter revealed an inappropriate attempt to arrogate our authority to decide, among other matters, the State's and City's own pending motion to terminate and vacate. Kerr-McGee claims that a protective order is necessary to preserve our jurisdiction and the status quo, as well as to prevent unspecified irreparable harm to Kerr-McGee. The State, City, and staff all oppose Kerr-McGee's motion.
n41 Letter from J. G. Klinger to J. C. Stauter (dated Dec. 5, 1990, and stamped as "received" by Kerr-McGee on Dec. 10, 1990), attached as Exhibit 1 to Kerr-McGee's Motion for a Protective Order (Dec. 12, 1990).
On January 16, 1991, we heard lengthy oral argument from all the parties (except amicus EPA) on the appeals; the motion to vacate the license amendment and to remand for consideration of recent new developments in this case; and the motion to terminate the proceeding for lack of jurisdiction and to vacate the Licensing Board's decision.
II. The Effect of the Transfer [*37] of Jurisdiction to Illinois
The State and the City argue that, as a consequence of the Commission's October 17, 1990, approval of the agreement transferring regulatory authority over section 11(e)(2) byproduct material -- the subject of this proceeding -- to the State, the Commission has affirmatively relinquished its jurisdiction (and that of its adjudicatory boards) over the instant proceeding. In their view, this lack of jurisdiction makes the case now moot, and our decision in the Sheffield proceeding n42 requires that we immediately terminate this case and vacate the Licensing Board's decision, removing all operative effect. n43 In Sheffield, while the case was pending before us on the appeal of the respondent in that show-cause proceeding, the Commission agreed to transfer its regulatory authority over the Sheffield waste disposal site to Illinois pursuant to a section 274 agreement. Noting that the NRC staff had withdrawn (or was about to withdraw) its show-cause order that initiated the proceeding, and citing the Supreme Court's decision in United States v. Munsingwear, Inc., n44 we vacated the Licensing Board orders pending on appeal and terminated [*38] the proceeding. n45
n42 US Ecology, Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), ALAB-866, 25 NRC 897 (1987).
n43 Motion to Terminate Proceeding and to Vacate Initial Decision for Lack of Jurisdiction (Oct. 22, 1990) at 1-3.
n44 340 U.S. 36, 39-41 (1950).
n45 Sheffield, 25 NRC at 898-99.
Kerr-McGee strongly opposes the State's and the City's motion. It points out that, in responding to a petition for reconsideration of the decision approving the section 274 agreement with Illinois, the Commission explicitly declined to express an opinion as to how the motion to terminate and vacate should be decided. n46 Kerr-McGee also argues that "[t]he Commission has only approved the State regulatory program in general terms and not as applied to any specific site, including, in particular, the West Chicago facility." n47 In addition, it distinguishes Sheffield and asserts that, inasmuch as the propriety of Kerr-McGee's disposal plan remains a live controversy, the case is not moot, making the application of Munsingwear both inappropriate and unfair in the circumstances here. n48 The staff agrees with the State and the City that the proceeding [*39] must be terminated, but argues against vacation of the Licensing Board's decision, contending that neither Sheffield nor Munsingwear requires such action here. n49
n46 Kerr-McGee Opposition to State and City Motion to Terminate and Vacate (Nov. 13, 1990) at 2 (citing Illinois, CLI-90-11, 32 NRC at 334).
n47 Id. at 3 (citing Illinois, CLI-90-9, 32 NRC at 216-17, and id., CLI-90-11, 32 NRC at 334).
n48 Id. at 3, 7-15.
n49 NRC Staff Response to Joint Motion to Terminate Proceeding and to Vacate Initial Decision (Nov. 19, 1990).
We think it clear that, in executing the section 274 agreement with Illinois last fall, the Commission did not intend for this proceeding to cease immediately simply by virtue of the existence of that agreement. Well aware of the status of this proceeding, the Commission had at least two opportunities to terminate the matter itself or to direct us to do so, and, as Kerr-McGee points out, it declined to do either. n50 The Commission's approval of the agreement with Illinois is also couched in unmistakably generic terms and refers to another potential, site-specific proceeding involving the West Chicago site. n51
n50 See generally Illinois, CLI-90-9, 32 NRC 210; id., CLI-90-11, 32 NRC 333.
n51 Id., CLI-90-9, 32 NRC at 215-17. [*40]
Further, the Commission policy on the state agreement process, pursuant to which the agreement was negotiated and executed, provides that, in effecting the discontinuance of jurisdiction, appropriate arrangements will be made by NRC and the State to ensure that there will be no interference with or interruption of licensed activities or the processing of license applications, by reason of the transfer. n52
n52 "Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement" [hereinafter State Agreement Policy], 46 Fed. Reg. 7540, 7543 (1981) (emphasis added).
The unquestionable intent of this NRC policy is that jurisdiction is to be transferred to an "agreement state" in an orderly manner, with minimal disruption to any pending licensing proceeding, such as that here. n53 The agreement with Illinois in this case contains no indication that "appropriate arrangements" have been made to assure this orderly process; indeed, it is silent as to its effect on any pending licensing or enforcement proceedings. n54 It is reasonable to infer from this and from the Commission's statement declining [*41] to express an opinion on how the motion to terminate and to vacate should be decided, n55 however, that those "appropriate arrangements" are to be fashioned in and through this adjudicatory proceeding. Thus, in these circumstances, we find unpersuasive the argument that the transfer of jurisdiction to the State in and of itself demands immediate termination of this proceeding.
n53 It cannot reasonably be disputed that "the processing of license applications" necessarily includes any hearing held thereon.
n54 See 55 Fed. Reg. 46,591. The original agreement with Illinois (see supra note 39) is similarly silent in this regard. See 52 Fed. Reg. at 22,864. Nor do the Commission's "Agreement State" regulations shed any light on what happens to proceedings pending at the time a section 274 agreement is executed. See 10 C.F.R. Part 150.
n55 See Illinois, CLI-90-11, 32 NRC at 334.
We also disagree with the State and the City that this proceeding is moot and that the Munsingwear case thus requires vacation of the decisions pending appeal. The Court in Munsingwear held that it is the duty of an appellate court, upon motion, to reverse or vacate the judgment below [*42] and remand with a direction to dismiss an action that has become moot "through happenstance" while pending on appeal. n56 "Mootness" means the absence of a "case or controversy"; i.e., "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." n57 But here, Kerr-McGee has not retreated from its onsite disposal plan, and the litigation over it promises to continue among the principal parties in a variety of federal, state, and administrative forums, amply demonstrating that the controversy is quite alive and active. The State and the City have thus failed to meet their "'heavy'" burden of demonstrating mootness. n58
n56 340 U.S. at 39-40. The Court applied this principle to unreviewed administrative decisions in A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324 (1961).
n57 Powell v. McCormack, 395 U.S. 486, 496 (1969).
n58 See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632-33 (1953))).
Because our decision in Sheffield, 25 NRC 897, represents a straightforward application of Munsingwear, it does not dictate a different outcome here. The State and the City cite to only one other case as support for their view that, in and of itself, a transfer of jurisdiction from one authority to another, prior to the completion of appellate review, renders a case moot and thereby requires the vacation of the underlying decision. Their reliance on excerpts taken out of context from our decision in Kerr-McGee Chemical Corp. (Kress Creek Decontamination), ALAB-867, 25 NRC 900 (1987), however, is misplaced. We concluded there that the agreement in question had not transferred jurisdiction to Illinois over the particular type of nuclear material at issue in that proceeding. Thus, it was not necessary for us to decide how the proceeding should be terminated and if vacation was appropriate, and we explicitly declined to do so. Id. at 911 & n.15. [*43]
It is also clear from the case law that, even if this case can be considered technically moot by reason of the agreement transferring jurisdiction over byproduct material to the State, Munsingwear does not necessarily require vacation of the judgment below. The Court stressed in Munsingwear that vacating the lower court's decision was fitting only if "happenstance" prevents the completion of appellate review and if that procedure does not prejudice the rights of any of the parties. n59 Relying on this reasoning in Karcher v. May, the Supreme Court dismissed the appeal for want of jurisdiction, but declined to vacate the lower court's decision. The Court concluded that the "controversy did not become moot due to circumstances unattributable to any of the parties. The controversy ended when the losing party . . . declined to pursue its appeal. Accordingly, the Munsingwear procedure is inapplicable to this case." n60 So too, the court of appeals in United States v. Garde declined to vacate the lower court's decision, even though the case became moot while the appeal was pending. The court determined that it would be unfair to the parties that prevailed [*44] below to lose the ongoing benefits and operative effect of their victory in district court as a result of actions taken by the losing party while its appeal was pending. n61
n59 340 U.S. at 40. The "happenstance" that led to the mootness in Munsingwear was the decontrol of the price of the commodity sold by the respondent in that case. This contrasts with the case at bar, in which the regulation of the mill tailings at Kerr-McGee's West Chicago site has not been eliminated, but rather transferred to another authority.
n60 484 U.S. 72, 83 (1987).
n61 848 F.2d 1307, 1310 & n.6 (D.C. Cir. 1988).
Although one can debate where the responsibility, in fact, lies for effecting the transfer of jurisdiction over mill tailings from the NRC to Illinois, no one can reasonably characterize this event as "happenstance" or an action "unattributable to any of the parties." The State actively sought this new regulatory authority, over the strong objections of Kerr-McGee. n62 This is not to imply culpable behavior on the part of the State in seeking the transfer of jurisdiction or on the part of the Commission in agreeing to it; indeed, section 274 of the AEA seemingly encourages [*45] such agreements. It does, however, render inapplicable the mechanical application of the Munsingwear doctrine.
n62 We note, however, that the City -- also an appellant before us (see supra p. 7 & note 21) -- was not a party to the State's request for the transfer of regulatory authority.
The Supreme Court also did not expect rigid adherence to Munsingwear when the rights of any party might be prejudiced. While the extent of harm to Kerr-McGee's rights can be disputed, it cannot be gainsaid that the act of vacating the decision below, which would in turn necessarily require the revocation of the license amendment already issued to Kerr-McGee, n63 surely amounts to the kind of prejudice the Court in Munsingwear sought to avoid. n64 In other words, if the decision below is to be vacated and the license revoked, it should be thus after consideration on the merits, not as a consequence of applying the largely procedural rule of Munsingwear.
n63 See infra pp. 121-22.
n64 In this regard, the Court made explicit reference to the fact that the decision mooted on appeal was "only preliminary." 340 U.S. at 40. Although the Licensing Board's initial decision before us on appeal is also "preliminary," it nonetheless became "immediately effective" insofar as it provided the authority for license issuance, which latter action is considered final for purposes of judicial review. See supra note 27; Massachusetts v. NRC, No. 89-1306, slip op. at 17-19 (D.C. Cir. Jan. 25, 1991); Oystershell Alliance v. NRC, 800 F.2d 1201 (D.C. Cir. 1986). [*46]
Both courts and commentators recognize that, if there is any doubt as to mootness, the better course is to decide the case. "There is ample room for discretion in deciding whether a case is moot, or whether some practical purpose would be served by deciding the merits. If there is an adequate reason to preserve the judgment, the appeal should be decided." n65 In short, the very principles that underlie the Munsingwear doctrine strongly militate against its application by rote in the circumstances here. Thus, insofar as the State's and the City's October 22 motion seeks the immediate termination of this proceeding and the corresponding vacation of the Licensing Board's initial decision, by reason of the Commission's approval of the agreement transferring jurisdiction over mill tailings to the State, the motion is denied.
n65 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure @ 3533.10, at 430 (2d ed. 1984). See also Pickus v. United States Bd. of Parole, 543 F.2d 240, 242 (D.C. Cir. 1986).
III. Developments Since the Issuance of the Initial Decision
As noted above, following the filing of the staff's brief on the merits [*47] in response to their appeals, the State and the City filed a joint motion to "vacate as moot the materials license amendment issued to Kerr-McGee" as a consequence of the Licensing Board's initial decision, to remand this matter to the Director of NMSS for review of "Kerr-McGee's new design," and, in the alternative, to reopen the record of this proceeding and to remand it to the Licensing Board for consideration of "whether Kerr-McGee's new cell design satisfies" 10 C.F.R. Part 40, Appendix A. n66 The State and the City argue that this action has become necessary because, subsequent to the issuance of the Licensing Board's decision, (1) Kerr-McGee has made design changes; (2) the NRC staff has reversed the position it took in the hearing below and has rejected the design approved by the Licensing Board; (3) Kerr-McGee, the staff, and EPA have submitted into the record of this proceeding substantial "additional material evidence that goes to the heart of this matter;" and (4) Kerr-McGee and the staff now rely on the rock riprap (i.e., clay-cobble) intrusion barrier (rather than the top vegetative cover) n67 as the primary means to prevent erosion. n68
n66 Motion to Vacate at 1 (emphasis in original).
n67 See supra pp. 2-3.
n68 Motion to Vacate at 2. [*48]
To understand the import of the State's and the City's motion, it is necessary to view it in the context of the pertinent contentions admitted for litigation and the governing regulatory criteria, found in 10 C.F.R. Part 40, Appendix A. n69 For example, Criterion 3 states that "[t]he 'prime option' for disposal of tailings is placement below grade," but recognizes that full below grade burial may not always be "practicable." In such cases, "it must be demonstrated that an above grade disposal program will provide reasonably equivalent isolation of the tailings from natural erosional forces." Criterion 4 establishes certain site and design standards that "must be adhered to whether tailings or wastes are disposed of above or below grade." For instance,
(a) Upstream rainfall catchment areas must be minimized to decrease erosion potential and the size of floods which could erode or wash out sections of the tailings disposal area.
n69 For a more in-depth discussion of UMTRCA and the Appendix A criteria promulgated thereunder, see infra pp. 65-79.
* * *
(c) Embankment and cover slopes must be relatively flat after final stabilization to minimize erosion potential [*49] and to provide conservative factors of safety assuring long-term stability. . . .
(d) A full self-sustaining vegetative cover must be established or rock cover employed to reduce wind and water erosion to negligible levels.
Where a full vegetative cover is not likely to be self-sustaining due to climatic or other conditions, such as in semi-arid and arid regions, rock cover must be employed on slopes of the impoundment system. . . .
The following factors must be considered in establishing the final rock cover design to avoid displacement of rock particles by human and animal traffic or by natural process, and to preclude undercutting and piping:
Shape, size, composition, and gradation of rock particles (excepting bedding material average particles [sic] size must be at least cobble size or greater);
Rock cover thickness and zoning of particles by size; and
Steepness of underlying slopes.
Individual rock fragments must be dense, sound, and resistant to abrasion, and must be free from cracks, seams, and other defects that would tend to unduly increase their destruction by water and frost actions. . . .
* * *
. . . In addition to providing for stability of the impoundment system [*50] itself, overall stability, erosion potential, and geomorphology of surrounding terrain must be evaluated to assure that there are not ongoing or potential processes, such as gully erosion, which would lead to impoundment instability.
Criterion 6 establishes the basic performance standard for a mill tailings disposal system -- i.e., a design that
provides reasonable assurance of control of radiological hazards to (i) be effective for 1,000 years, to the exten[t] reasonably achievable, and, in any case, for at least 200 years, and (ii) limit releases if radon-222 from uranium byproduct materials, and radon-220 from thorium byproduct materials, to the atmosphere so as to not exceed an average release rate of 20 picocuries per square meter per second . . . to the extent practicable throughout the effective design life determined pursuant to (i) above. [Footnote omitted.]
Finally, Criterion 12 requires that "[t]he final disposition of tailings or wastes at milling sites should be such that ongoing active maintenance is not necessary to preserve isolation." State Contentions 4(c), 4(d), 4(e), and 4(g), admitted by the Licensing Board, alleged that the Kerr-McGee proposal [*51] would require "active maintenance" or would not minimize erosion, contrary to Criteria 3, 4, 6, and 12. n70
n70 See People of the State of Illinois'[s] Additional Contentions at 2-3, attached to Motion for Leave to Amend Contentions (May 15, 1989); People's Reply to the NRC Staff's and Kerr-McGee's Responses to the People's Motion for Leave to Amend Contentions (June 16, 1989), Exhibit B at 6-7; LBP-89-16, 29 NRC at 515, 517; July 12 Order at 4.
In their motion to vacate, the State and the City focus on principally three matters addressed by the parties in their presentations and resolved by the Licensing Board against the position asserted by the State. First, they point out that Kerr-McGee and the staff maintained below that the top vegetative cover on the pile would provide the primary erosion protection. n71 Consequently, the Licensing Board found that it was not necessary to "scrutinize the parameters of the rock riprap intrusion barrier to determine if the barrier itself will prevent erosion," as the State had urged. n72
n71 See, e.g., Opposition to State Motion for Summary Disposition and Kerr-McGee Cross-Motion for Dismissal or Summary Disposition (Aug. 22, 1989) [hereinafter Kerr-McGee Cross Motion] at 37; NRC Staff Response in Opposition to Illinois'[s] Motion for Summary Disposition (Aug. 22, 1989) [hereinafter Staff Summary Disposition Response] at 16-17.
n72 Motion to Vacate at 3. See LBP-89-35, 30 NRC at 686-88. [*52]
Second, the State and the City note that "the Licensing Board -- at the urging of Kerr-McGee and Staff -- adopted a narrow definition of active maintenance, such that Kerr-McGee's anticipated maintenance of the vegetation cover could not be considered 'active.'" n73 Specifically, under Kerr-McGee's proposal, for the vegetative cover " to be sustained permanently as a prairie ecosystem[,] it must be burned or mowed every few years, otherwise natural vegetative succession will cause a forest to develop." n74 As seen above, Appendix A Criterion 12 dictates that no "ongoing active maintenance" must be necessary in order to preserve isolation of the mill tailings. n75 Appendix A, however, does not define "active maintenance." The Licensing Board thus looked elsewhere and adopted the definition of "active maintenance" in 10 C.F.R. Part 61, the NRC regulations governing the "Licensing Requirements for Land Disposal of Radioactive Waste." n76 That definition excludes "custodial activities such as repair of fencing, repair or replacement of monitoring equipment, revegetation, minor additions to soil cover, minor repair of disposal unit covers, and general disposal site upkeep such [*53] as mowing grass." n77 Accordingly, the Licensing Board concluded that "the maintenance contemplated by Kerr-McGee to preserve the prairie vegetation is clearly not 'active maintenance' as that term is defined in section 61.2." n78
n73 Motion to Vacate at 3-4.
n74 LBP-89-35, 30 NRC at 683-84.
n75 Criterion 1, as well, states that "[t]he general goal or broad objective in siting and design decisions is permanent isolation of tailings and associated contaminants by minimizing disturbance and dispersion by natural forces, and to do so without ongoing maintenance." See infra pp. 85-102.
n76 LBP-89-35, 30 NRC at 682-83. But see infra pp. 103-10, concerning the Licensing Board's reliance on this definition.
n77 10 C.F.R. @ 61.2.
n78 LBP-89-35, 30 NRC at 687.
Third, contrary to the State's position, n79 Kerr-McGee and the staff contended that it was not necessary to consider how a "Probable Maximum Precipitation" (PMP) event would affect the erosion of the disposal cell. A PMP event is the "theoretically greatest depth of precipitation for a given duration that is physically possible over a particular drainage area at a certain time of year." n80 The Licensing [*54] Board concluded that the analyses performed by Kerr-McGee and the staff, which were based on assumptions of storm magnitude somewhat less than a PMP event, were acceptable under Appendix A and demonstrated that "the topsoil of the cell will not be lost by erosion over its design life." n81 The Board also found that the bare allegation that a larger storm event should have been considered is insufficient to call into question the analyses performed by Kerr-McGee and Staff. . . . Moreover, the definition of "active maintenance" contained in section 61.2 contemplates that certain minor repairs to the cell cover are permissible. The damage that Dr. Thiers [the State's witness] alleges will take place appears to be of the sort that could be corrected by minor repairs. n82
n79 See id. at 685.
n80 American Meteorological Society, Glossary of Meteorology 446 (1959).
n81 LBP-89-35, 30 NRC at 688.
n82 Id. at 689, reconsideration denied, Licensing Board Memorandum and Order of Feb. 13, 1990 (unpublished) [hereinafter Feb. 13 Order].
The State and, in most instances, the City challenge the Licensing Board's rulings in regard to these matters in their briefs on appeal. [*55] They also note that EPA, in its amicus brief, expressed reservations about the same concerns -- i.e., reliance on the vegetative cover as the primary erosion barrier, the definition of "active maintenance," and use of a storm less than a PMP event. n83 Most significant, however, the State and the City contend that, during the pendency of their appeals, the NRC staff "has abandoned its position before the [Licensing Board] and has adopted virtually every concern related to erosion articulated by Illinois, West Chicago and EPA." n84 They contend further that, as a consequence of the staff's change in position on these various issues, Kerr-McGee has made design modifications in the clay-cobble intrusion barrier, diversion ditch, and sedimentation basin, and that the staff has acknowledged that these new specifications must be incorporated into a new license amendment. n85
n83 Motion to Vacate at 4-5. See EPA Brief at 7-12.
n84 Motion to Vacate at 5-6. See id. at 11-12.
n85 Id. at 9-10, 12.
The State and the City therefore argue that these changes have rendered moot the license amendment approved by the Licensing Board and already issued to Kerr-McGee, [*56] and that it would be "inappropriate" for us "to review the original and withdrawn design" and the Licensing Board decision thereon. n86 They contend that the license amendment must be vacated and the design changes referred to the Director of NMSS for the usual pre-hearing review given by the staff to applications under 10 C.F.R. @ 2.101(a). n87 In this connection, the State and the City note that under section 189 of the Atomic Energy Act n88 they are entitled to a hearing on any such license amendment, and they invoke that right here. n89 In the alternative, they move for a reopening of the record and remand to the Licensing Board for consideration of the new information generated since the issuance of that Board's initial decision. n90
n86 Id. at 12 (emphasis in original), 14.
n87 Id. at 14. As the staff notes, the actual relief that the State and the City mean to seek through their motion is a vacation of the Licensing Board decision authorizing the license amendment. NRC Staff Response to State of Illinois and City of West Chicago Motion to Vacate or to Reopen the Record (Sept. 17, 1990) [hereinafter Staff Response to Motion to Vacate] at 3 n.2.
n88 42 U.S.C. @ 2239.
n89 Motion to Vacate at 15 n.9, 19 n.13.
n90 Id. at 16-18 & n.11. The State and the City also note that EPA expressed concerns about radiation dose and groundwater pollution and that even the staff concedes that this latter issue has not yet been resolved. Id. at 5, 10-11, 15-16. See infra pp. 120-21. [*57]
Kerr-McGee opposes the joint motion. It contends at the outset that both the EPA amicus brief and the NRC staff's response to EPA's concerns (presumably as set forth in the staff's August 10 brief on appeal) should be "disregarded." n91 Kerr-McGee denies that it has made any significant changes in the cell design and directs most of its reply to a discussion of the PMP issue. Relying on the "Erosion Evaluation" it submitted to the staff last summer in response to the latter's request for further information during the pendency of this appeal, n92 Kerr-McGee asserts that it has "demonstrated" the adequacy of the cell design to withstand a PMP event and erosion. n93 Again focusing solely on the PMP issue, Kerr-McGee also argues that none of the Commission's criteria for reopening a record has been satisfied by the State and the City in their motion. n94
n91 Kerr-McGee Opposition to Motion to Vacate (Sept. 10, 1990) [hereinafter Kerr-McGee Opposition] at 1.
n92 See "Erosion Evaluation: West Chicago Disposal Cell" (July 23, 1990) [hereinafter Erosion Evaluation], enclosed with Board Notification 90-05.
n93 Kerr-McGee Opposition at 14-15, 19. Indeed, Kerr-McGee unabashedly claims that it has made an "unrebutted and unchallenged showing that [its] design can withstand a PMP" event. Id. at 28 (emphasis in original).
n94 Id. at 21-29. [*58]
The NRC staff's reply to the State's and the City's motion is confusing at best. It notes that "Kerr-McGee has not withdrawn its design for the cell . . ., but has merely specified certain design details in response to [the staff's] request." n95 The staff fails to mention, however, that it requires a license amendment for these newly provided "design details." n96 As for the alternative motion to reopen, the staff does not object to reopening the record for consideration of the "new evidence" contained in the Erosion Evaluation and the staff's "Technical Evaluation Report" on that Kerr-McGee submission, n97 but urges us to receive and consider the parties' briefs in reply to the staff before making a reopening determination. n98
n95 Staff Response to Motion to Vacate at 3.
n96 See NRC Staff Brief at 38.
n97 This staff report is attached to the NRC Staff Brief.
n98 Staff Response to Motion to Vacate at 7-8. The State, the City, and Kerr-McGee each filed such reply briefs on October 5, 1990.
A. We turn first to the movants' argument that the staff's changes in position and the corresponding design specifications added by Kerr-McGee warrant vacation of the Licensing [*59] Board's decision authorizing the issuance of the license amendment to Kerr-McGee.
Agency case law makes clear that, when circumstances change while an adjudicatory decision is pending on appeal so as to supersede or to alter in a significant way the evidentiary basis of that decision, the decision should be vacated. For example, in Browns Ferry, after we completed our appellate review of the Licensing Board's decision and while our decision was pending review by the Commission, we learned that the Tennessee Valley Authority (TVA) had substantially amended the waste disposal at issue in that case through various submissions it had made to the staff. n99 Specifically, it transformed its proposal to reduce, incinerate, and store low-level radioactive waste during the life of the plant to a five-year onsite storage plan. n100 We rejected TVA's argument that this was not "a material alteration of its earlier presentation," n101 noting that our prior decision in ALAB-664 n102 turned on the very matters now addressed in TVA's latest submissions to the staff -- i.e., "TVA's failure to explain on the record how five year storage was to be separated from the original integrated [*60] proposal including long-term storage and incineration." n103
n99 Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677, 15 NRC 1387 (1982).
n100 Id. at 1389.
n101 Id. at 1391.
n102 15 NRC 1 (1982).
n103 ALAB-677, 15 NRC at 1392.
We thus found that the new information "was material to the resolution of the issues before us," and that, "with appropriate opportunity for comment or rebuttal, [it] might well have changed the outcome of the appeal." n104 Further, we dismissed as "disingenuous" TVA's assertions that its submission to the staff "did not constitute an amendment [of its application]." n105 In this regard, we noted that TVA's submissions were in response to the staff's requests for additional information, and that the staff had advised TVA to amend its application. n106
n104 Id. at 1393.
n105 Ibid.
n106 Id. at 1393 n.5. See id. at 1389.
At the time we learned of this significant change in circumstances, the Browns Ferry proceeding was pending before the Commission for review. Indeed, the Commission had already taken review and requested briefing of the issues. After being apprised of [*61] the changed circumstances, the Commission then determined that, "[s]ince ALAB-664 [the Appeal Board decision on appeal] was based on a record that no longer represents the situation in this case and will not be reviewed by the Commission, that decision is hereby vacated and shall be given no weight as a precedent." n107 It also remanded the proceeding to us for further action. n108
n107 CLI-82-26, 16 NRC 880, 881 (1982) (emphases added).
n108 Ibid. See ALAB-711, 17 NRC 30 (1983).
Similarly, in Delmarva Power & Light Co. (Summit Power Station, Units 1 and 2), ALAB-516, 9 NRC 5 (1979), while the Licensing Board's decision approving the issuance of a limited work authorization was pending before us on appeal, the applicant indicated it intended to alter its plans substantially. On the applicant's suggestion and without objection from any other party, we vacated the Licensing Board's decision without prejudice. Although the facts of Summit suggest a basis for distinguishing that decision from the instant case, the fundamental principle pertains: when circumstances change so as to alter effectively the evidentiary record supporting a decision on appeal, that decision should be vacated. [*62]
Vacating a decision in such circumstances is also fully consistent with federal court practice. For instance, Rule 60(b) of the Federal Rules of Civil Procedure provides that new evidence diligently discovered after trial and decision or "any other reason justifying relief" can deprive a judgment of its operative effect. As the Supreme Court has noted, the "other reason" language in Rule 60(b) simply "vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice." n109
n109 Klapprott v. United States, 335 U.S. 601, 614-15 (1949).
There can be no doubt that the staff's changes in position on the vegetative cover as the primary erosion protection, the definition of active maintenance, and the use of the PMP event in erosion analyses -- not just on a generic basis, but in this case -- constitute "a material alteration of its earlier presentation" n110 to the Licensing Board. As the applicant and proponent of its cell design, Kerr-McGee, of course, has the burden of proof, n111 and the principal focus of the hearing is accordingly on its presentation, not the staff's. n112 But, as discussed below, [*63] the staff's former position on each of the three identified issues amounted to a significant part of the evidentiary record and was accorded substantial weight by the Licensing Board.
n110 Browns Ferry, ALAB-677, 15 NRC at 1391.
n111 See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 345 (1973).
n112 See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807, review declined, CLI-83-32, 18 NRC 1309 (1983). As Diablo Canyon notes, however, the adequacy of the staff's environmental review can be challenged in a hearing. In the instant case, it would be extremely difficult to characterize the issues as solely relating to either radiological health and safety matters under the AEA and UMTRCA, or the adequacy of the staff's environmental review under NEPA. See generally Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 719-30 (3d Cir. 1989).
As a consequence of Kerr-McGee's reliance on the top vegetative cover to provide the primary protection against erosion and the staff's then-support of that position, the Licensing Board rejected the State's efforts [*64] to pursue in greater detail the adequacy of the underlying clay-cobble intrusion barrier. The Board noted that Appendix A does not require such an "intrusion barrier," and that it was included in Kerr-McGee's design "to provide added assurance of cell stability in the event that the topsoil layer is lost for some unspecified reason during the design life of the cell." n113 It then specifically referred to a staff analysis showing that erosion of the surface layer might take place on a time scale well in excess of the design life of the cell[,] . . . that it poses no credible mechanism by which the topsoil might be lost within 1000 years[,] . . . [and] that if the soil layer is lost by some unspecified mechanism the intrusion barrier would offer long-term protection. n114
n113 LBP-89-35, 30 NRC at 687 (emphasis added).
n114 Ibid.
The Board thus concluded that "there is only a very remote possibility that the barrier will be required to perform an erosion control function within the design life of the cell." n115 The State criticized the absence of certain information concerning the size, composition, and distribution of rocks in the clay-cobble intrusion [*65] barrier. Acknowledging that the "final choice of materials has not been specified" and that "no computations that rely on graded particle sizes in the intrusion layer have been performed," the Board responded that the "allegation does not rebut Kerr-McGee's and Staff's evidence or establish the materiality of the missing data." n116
n115 Ibid. (emphasis added).
n116 Id. at 688 & n.17.
The staff now "places no reliance on the vegetative cover." n117 Instead, for the purpose of satisfying the criteria of Appendix A, the staff regards the underlying clay-cobble layer in the Kerr-McGee cell design "as the principal erosion barrier." n118 This position is assertedly based on the recently completed "Final Staff Technical Position: Design of Erosion Protection Covers for Stabilization of Uranium Mill Tailings Sites" (May 1990 Draft) [hereinafter STP], which reflects a preference for rock, rather than vegetative, covers. n119 The staff also indicates that, based on its evaluation of the additional design details provided by Kerr-McGee last summer (i.e., specifications for the rock component of the clay-cobble layer n120), the clay-cobble barrier will satisfy regulatory [*66] requirements. n121 The staff adds, however, that these specifications for the protective rock must be incorporated into a new license amendment for the cell. n122
n117 NRC Staff Brief at 35. See Affidavit of T. L. Johnson [hereinafter Johnson Affidavit], attached to NRC Staff Brief, at 5.
n118 NRC Staff Brief at 36. See Johnson Affidavit at 5.
n119 STP at 7-8, 11-12, 13-14, 17. The STP was transmitted to the parties and us with a Memorandum from J. J. Swift to C. J. Haughney (June 12, 1990).
n120 See, e.g., Erosion Evaluation at 18-22, 33-37; Board Notification 90-06, Enclosure 2 (Letter from Kerr-McGee to C. J. Haughney (July 31, 1990), providing additional information and calculations).
n121 NRC Staff Brief at 36. See STP at 9-10, 18-19, concerning scrutiny of rock durability, quality, and placement.
n122 NRC Staff Brief at 36, 38; Affidavit of R. M. Bernero [hereinafter Bernero Affidavit], attached to NRC Staff Brief, at 4; Affidavit of J. J. Swift [hereinafter Swift Affidavit], attached to NRC Staff Brief, at 9.
It is now apparent that the previously-lacking details and computations concerning the clay-cobble intrusion barrier -- which the Licensing Board found [*67] to be immaterial in light of the role of the vegetative cover as the primary erosion protection -- have become so material to the staff's analysis that they must be incorporated into a new license amendment. Nor can it still be said that "there is only a very remote possibility that the [clay-cobble] barrier will be required to perform an erosion control function within the design life of the cell;" n123 the staff's new analysis assumes that is exactly the function that the clay-cobble layer will perform. It is of no moment here that the staff has reviewed these new design details and pronounced them sufficient to satisfy the pertinent regulatory criteria. The other parties, namely the State and the City, have not had an opportunity to undertake such a review and to challenge the new analyses within the hearing process, as is their right. n124 Moreover, the new information relating to the clay-cobble layer is now of concededly greater significance than was ascribed to it during the hearing and at the time the Licensing Board rendered its decision on summary disposition. In fact, as a result of the staff's change in position, the principal focus of erosion control -- and [*68] thus compliance with Appendix A -- is now on the clay-cobble layer of the cell, not the top vegetative cover. So, too, the principal focus of the hearing has necessarily changed.
n123 LBP-89-35, 30 NRC at 687.
n124 Indeed, at the time the State submitted its contentions, it did so on the basis that Kerr-McGee and the staff both viewed the vegetative cover as the primary erosion protection. Thus, it is not surprising that the State's contentions did not focus on "engineering details of the specificity [now] involved in Kerr-McGee's Erosion Evaluation." NRC Staff Brief at 38 n.17.
Inextricably related to the staff's change in position on the primary protection against erosion is its about-face on what constitutes "ongoing active maintenance" prohibited by Criteria 1 and 12. As noted earlier, at Kerr-McGee's urging and without objection from the staff, n125 the Licensing Board borrowed the definition of "active maintenance" from other NRC regulations not specifically concerned with mill tailings disposal. The definition of "active maintenance" contained in 10 C.F.R. @ 61.2 and adopted by the Board excludes the mowing and related activities on which the Kerr-McGee [*69] proposal relies in order to maintain the prairie grasses in the top vegetative cover. n126 The Licensing Board relied on this definition in rejecting, on summary disposition, the State's complaints that the vegetative cover was flawed and did not provide the "reasonably equivalent isolation of the tailings from natural erosional forces" required by Appendix A Criterion 3 n127 for above grade disposal. n128 The Board also concluded that, under its "active maintenance" definition, minor repairs to the cell necessitated by a PMP event could be performed. n129
n125 See id. at 35.
n126 LBP-89-35, 30 NRC at 682-83.
n127 10 C.F.R. Part 40, App. A, Criterion 3.
n128 See LBP-89-35, 30 NRC at 686-87.
n129 Id. at 689. The Board cited its "active maintenance" definition in summarily disposing of yet another issue, human intrusion. Id. at 690. For additional discussion of this contention, see infra pp. 116-20.
The staff, however, has changed the position it presented to the Licensing Board on "active maintenance." n130 The STP acknowledges that "the goal of any design for long-term stabilization to meet applicable design criteria should be to provide overall [*70] site stability for very long time periods, with no reliance placed on active maintenance." n131 To that end, the staff now defines the "active maintenance" prohibited by Appendix A Criteria 1 and 12 as "any maintenance that is needed to assure that the design will meet specified longevity requirements. Such maintenance includes even minor maintenance, such as the addition of soil to small rills and gullies." n132 As a result of applying this new definition to the case at bar, n133 Kerr-McGee's maintenance plan for the prairie grasses in the vegetative cover may not be taken into account in determining if the cell provides adequate erosion protection -- explaining why the staff now regards the underlying clay-cobble layer as serving that purpose. n134
n130 NRC Staff Brief at 35.
n131 STP at 3.
n132 Ibid. (emphasis in original).
n133 Any doubt that the staff has applied its generic STP to Kerr-McGee's proposal is dispelled by a Letter from J. Swift to Kerr-McGee (June 25, 1990) [hereinafter Swift Letter], attached to Board Notification 90-04.
n134 Johnson Affidavit at 5.
As for consideration of a PMP event in determining whether the cell design can withstand erosion [*71] and meet the longevity requirements of Appendix A Criterion 6, the Licensing Board rebuffed the State's efforts, supported on summary disposition with an expert affidavit, to join this issue. n135 In doing so, the Board noted that "Appendix A does not specify particular criteria for assessing longevity based on a design flood or storm." n136 Thus, the Board relied on analyses of the staff and Kerr-McGee that used assumptions of storms of lesser magnitude than a PMP event and based calculations on variations of the Universal Soil Loss Equation, which the Board found did not use a PMP event as a parameter. n137 The staff's SFES, for example, used "a rainfall factor derived from 25 years of record expressed in annualized terms." n138 The staff also accepted the use of less than a PMP event because "the disposal cell could be repaired if a worse event damaged it," and, as noted above, the Licensing Board agreed. n139
n135 See infra pp. 113-16, concerning whether the Licensing Board erred, in any event, in granting summary disposition of this issue.
n136 LBP-89-35, 30 NRC at 688.
n137 Id. at 688-89.
n138 Id. at 688.
n139 NRC Staff Brief at 35; LBP-89-35, 30 NRC at 689; Feb. 13 Order at 1-4.
[*72]
Once again the staff confesses that its current position on the PMP event differs from that presented to the Licensing Board. The STP provides that "[t]he design flood or precipitation event on which to base the stabilization plan should be one for which there is reasonable assurance of non-exceedance during the 1000-year design life." Thus, the STP concludes that the so-called "1000-year flood" -- an event with a probability of 0.001 per year and a 63 percent chance of being equalled or exceeded during the 1000-year design life -- would not meet the reasonable assurance test. But the STP does find the PMP event to be of "sufficiently low likelihood that the NRC staff concludes that there is reasonable assurance that larger events will not occur during the 1000-year design life. Therefore, the staff accepts the use of these events as design events for a stabilization plan." n140 Other events may be used, but only with detailed justification. In this case, however, the staff's affidavit makes clear that, as EPA has urged, "the disposal cell should be designed to withstand an occurrence of the PMP event because no other precipitation event provides reasonable assurance [*73] that a more severe event will not occur within 1000 years." n141
n140 STP at 5.
n141 Johnson Affidavit at 4. See NRC Staff Brief at 34-35.
Like the staff's revisionist view on what constitutes "active maintenance," its new-found reliance on the PMP event inexorably led to the staff's retreat from the vegetative cover to the underlying clay-cobble layer as the primary erosion barrier. n142 But after requesting and receiving additional specifications and analyses from Kerr-McGee on the clay-cobble layer, the staff determined that this layer can withstand a PMP event. n143 And, as noted above, the staff believes that the proposal now satisfies the requirements of Appendix A, provided Kerr-McGee's license is amended to incorporate the rock specifications and other design details. The staff nonetheless recognizes, however, that the other parties must be afforded an opportunity to address the new design details and analyses. n144
n142 NRC Staff Brief at 35; Johnson Affidavit at 3.
n143 NRC Staff Brief at 36; Johnson Affidavit at 4.
n144 See supra pp. 12, 33-34.
The preceding discussion reveals that, as in the Browns Ferry proceeding, there has been "a material [*74] alteration" in an earlier presentation to the Licensing Board (i.e., the staff's), n145 and the decisions pending before us on appeal are "based on a record that no longer represents the situation in this case," warranting vacation of those decisions. n146 The Licensing Board gave substantial weight to the staff's views and analyses concerning the Kerr-McGee proposal, and the staff has now significantly altered those views in several critical areas. As the Director of NMSS delicately puts it, "the position on design for erosion protection that the NRC staff presented to the . . . Licensing Board . . . in this proceeding had apparently lagged behind other developments taking place within the NRC." n147 In a further example of the staff's gift of understatement, it notes that its (belated) review of the Kerr-McGee proposal "has resulted in engineering specifications that may vary from the engineering implications of conclusions reached by the Licensing Board," and that "[t]he basis for these conclusions is, in some respects, different from that reflected in the hearing record." n148 In fact, the changes are so significant that the license already issued by the staff to [*75] Kerr-McGee must now be further amended. n149
n145 ALAB-677, 15 NRC at 1391.
n146 CLI-82-26, 16 NRC at 881.
n147 Bernero Affidavit at 1-2. We wonder how the staff position could "lag behind," inasmuch as a draft version of the STP was apparently in preparation by NMSS at about the same time as the SFES on Kerr-McGee's proposal (also prepared under the auspices of NMSS), and was made available for public comment about three weeks before the staff filed its response to the State's motion for summary disposition of the involved contentions and three months before the Licensing Board issued its summary disposition decision. See 54 Fed. Reg. 33,101 (1989). At a minimum, the staff was seriously remiss in the fulfillment of the long-established obligation imposed on all parties in NRC adjudicatory proceedings to call to the attention of both the Licensing Board and other parties "new information which is relevant and material to the matters being adjudicated." Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 625 (1973). Had the staff done so, it is quite likely that this proceeding would now be in a different posture entirely.
See infra note 189, concerning the State's effort to bring the draft STP to the attention of the Licensing Board.
n148 NRC Staff Brief at 38 (emphasis added).
n149 Ibid. As Kerr-McGee notes, NRC staff theology has long maintained that only "significant" design changes require a license amendment. Kerr-McGee Opposition at 20 n.24 (citing Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), DD-82-10, 16 NRC 1205, 1207 n.4 (1982)). [*76]
Moreover, the staff's reevaluation of Kerr-McGee's proposal since the issuance of the Licensing Board's decision was not simply a matter of confirmatory, post-hearing review or an effort to "tie up loose ends." The staff's first written request to Kerr-McGee for additional information refutes any such notion:
At the present time [almost four months after the license was issued], it is not clear that the designs of the top and side slopes, the diversion channels, or the sedimentation basin are adequate to resist erosion to the extent that the requirements of 10 CFR 40 Appendix A are met . . . . The staff expects that, upon further evaluation and analysis, Kerr-McGee may decide to redesign several features. n150
n150 Swift Letter, Enclosure 3 at 1 (emphasis added).
Referring to the clay-cobble layer, the staff stated that it "considers such analyses to be incomplete and unacceptable." n151 The staff ultimately may have reached essentially the same outcome as before -- i.e., the requirements of Appendix A are now met, subject to a new license amendment -- but that conclusion is based on new information not presented to the Licensing Board, reviewed on the basis [*77] of significantly different staff standards, and untested in an adjudicatory context.
n151 Ibid.
Kerr-McGee argues that the STP, on which the staff's new position is based, "is of no binding regulatory significance." n152 To be sure, staff technical positions and the like do not have the force of regulations; rather, they provide guidance to applicants as to acceptable methods for implementing regulatory criteria. n153 "Simply stated, [such] staff guidance generally sets neither minimum nor maximum standards." n154 The issue here, however, is not whether the staff's new STP on erosion protection for mill tailings covers is ultimately controlling vis-a-vis the pertinent regulatory requirements. The significance of the STP is that it represents a material change in the position and evidentiary presentation by the staff in the hearing below -- a position to which the Licensing Board gave substantial deference in its decision. Whether the new staff position is "correct" or not remains to be seen. What is clear now is that the existing evidentiary basis for the Licensing Board's decision on erosion issues has itself been eroded to a major extent.
n152 Kerr-McGee Opposition at 26.
n153 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, 811 (1974); Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 406-07 (1978).
n154 Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-725, 17 NRC 562, 568 n.10 (1983). [*78]
Kerr-McGee also complains that "[t]he erosion issue has come to the fore chiefly as a result of a brief filed with this Board by the EPA," a brief that allegedly "raises new issues." n155 It thus urges us to disregard all such matters. n156 But the current posture of this proceeding cannot be attributed to the filing of EPA's amicus brief on appeal. As has been shown, the State attempted to pursue its various contentions asserting non-compliance with the Appendix A criteria on erosion protection, but it failed on summary disposition of issues concerning the vegetative cover, active maintenance, and the PMP event -- all issues on which the staff has now changed its views.
n155 Kerr-McGee Opposition at 11.
n156 Id. at 1.
Moreover, the differing views of EPA in nine areas were made known to all the parties and the Licensing Board well before summary disposition motions were filed. n157 In August 1989, the Licensing Board requested the parties' advice as to whether those EPA views related to any of the admitted contentions, but the Board did not issue its judgment thereon until the following February, when it rendered the initial decision completing its consideration [*79] of the case. The Board then concluded, with no explanation, that "EPA's concerns . . . have no direct impact on the admitted contentions" and "need not be considered in this proceeding." n158 In this connection, the Board stated that "Illinois found a nexus between most of the EPA concerns and its own admitted contentions while the Staff and Applicant find the relationship remote." n159 The Board's characterization of the parties' comments, however, does not square with the record.
n157 See Board Notification 89-6 (noting that "EPA staff . . . wanted their comments brought effectively to the attention of the decision-makers, i.e., to the Atomic Safety and Licensing Board"); EPA Comments on SFES at 6-9 (concerning active maintenance, erosion, the 1000-year standard, compliance with NRC regulatory criteria, etc.).
n158 LBP-90-9, 31 NRC at 154.
n159 Id. at 153.
The staff responded, also with the benefit of no explanation whatsoever, that "the EPA's concerns do not impact the admitted contentions." n160 Kerr-McGee acknowledged, however, that EPA's comments on the SFES related to several of the State's admitted contentions, including those concerned with long-term [*80] maintenance and siting. n161 Kerr-McGee stated that these concerns should nevertheless have no effect on this proceeding because, "[t]o the extent that the EPA concerns are encompassed by the admitted contentions, those concerns will be addressed." n162 As we have seen, however, that prediction did not come true.
n160 NRC Staff's Response to Memorandum and Order of August 24, 1989 (Sept. 8, 1989) at 3.
n161 Kerr-McGee's Response to the Board's Questions (Sept. 8, 1989) at 3-4.
n162 Id. at 5 (emphasis added).
Thus, while many of the issues addressed in EPA's amicus brief coincide with the staff's changes in position and the bases for the State's and the City's motion to vacate, it is clear that these are not "new" issues, appearing for the first time on appeal. In any event, the fact that the staff may have changed its position due to a belated sensitivity to EPA's concerns is irrelevant; the dispositive fact is the staff's change in position, irrespective of the motivation for it.
We therefore agree with the State and the City that those portions of the Licensing Board's decision that concern the vegetative cover as the primary erosion barrier, "active [*81] maintenance," and erosion analyses that are not based on a PMP event must be vacated. n163 Specifically, this includes the Board's disposition of Contentions 4(c), 4(d), 4(e), and 4(g), as well as Contentions 2(k), 2(p), 2(s), 2(u), and 2(h), which the Board found were essentially duplicative. n164 We address in a later portion of this opinion the effect of this ruling on the future course of this proceeding and on the outstanding license issued to Kerr-McGee. n165
n163 Browns Ferry, CLI-82-26, 16 NRC at 881.
n164 LBP-89-35, 30 NRC at 680-90, 701-02; LBP-90-9, 31 NRC at 190.
n165 See infra pp. 121-24.
B. The State and the City have also moved, in the alternative, to reopen the record for further consideration by the Licensing Board of the new developments discussed above. We conclude that, even if the Browns Ferry decisions did not compel vacation of the Licensing Board's decision on the involved issues, reopening would clearly be warranted.
Under the Commission's Rules of Practice, a closed record will not be reopened unless the movant satisfies the following three criteria:
(1) The motion must be timely, except that an exceptionally grave issue [*82] may be considered in the discretion of the presiding officer even if untimely presented.
(2) The motion must address a significant safety or environmental issue.
(3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. n166
n166 10 C.F.R. @ 2.734(a).
In addition, "[t]he motion must be accompanied by one or more affidavits which set forth the factual and/or technical bases for the movant's claim that the [three] criteria . . . have been satisfied." n167 The State's and the City's motion easily meets all of these requirements.
n167 Id. @ 2.734(b).
1. The motion was clearly timely. It was filed within just three weeks of the staff's brief, in which the staff confirmed for the first time through affidavits that it had, in fact, changed its position on the critical issues discussed above. Kerr-McGee complains, however, that, insofar as the PMP event is concerned, the motion is untimely. n168 In its view, the State only belatedly attempted to establish that a PMP event should be evaluated, and "the Licensing Board denied consideration of the matter in [*83] part on the basis that the issue should have been advanced earlier." n169 Thus, Kerr-McGee reasons that "[i]f the PMP issue was untimely when advanced before the Licensing Board, it obviously cannot be timely now." n170
n168 Kerr-McGee Opposition at 24-25. None of Kerr-McGee's arguments with respect to the motion to reopen addresses the active maintenance and vegetative cover issues. For its part, the NRC staff does not challenge the timeliness of the motion to reopen or object to reopening for consideration of certain information provided by Kerr-McGee and the staff. Staff Response to Motion to Vacate at 7.
n169 Kerr-McGee Opposition at 24-25 (citing Feb. 13 Order at 4).
n170 Id. at 25.
The problem with Kerr-McGee's argument is that the Licensing Board never rejected the PMP issue as untimely. When the Board first considered this matter on summary disposition, there is no discussion whatsoever about the timeliness of the issue. n171 Rather, the Board ruled against the State on the PMP issue for essentially three reasons: (i) it believed Appendix A does not require consideration of such an event; (ii) it found the State's argument and supporting affidavit [*84] insufficient to withstand summary disposition, in light of the staff's and Kerr-McGee's analyses based on lesser magnitude rainfall events; and (iii) the definition of "active maintenance" adopted by the Board permits minor repairs to the cell cover that might be necessary as a result of a PMP event. n172 The State sought reconsideration and supplemented its earlier affidavit with additional references. n173 The Board, however, reaffirmed its prior ruling, noting that the additional documentation submitted by the State on reconsideration was available earlier and "should have been cited in connection with Illinois'[s] opposition to Kerr-McGee's cross-motion." n174 Thus, the Board did not find the PMP issue untimely, only some additional references supplied as support for the State's motion for reconsideration.
n171 See LBP-89-35, 30 NRC at 685, 688-89.
n172 Id. at 688-89. As will be seen, infra pp. 56-58, 113-16, 103-10, the Licensing Board erred on all three counts.
n173 One of those references was the August 1989 version of the STP. See infra note 189.
n174 Feb. 13 Order at 4.
2. The significance of the matters raised in the State's and the City's motion [*85] is patent. n175 They go to the heart of the Commission's controlling regulatory requirements -- i.e., the ability of the cell design to resist erosion, without ongoing active maintenance, and thereby to provide reasonable assurance that the radioactive waste thereunder will be isolated to the extent reasonably achievable for 1000 years, as required by Appendix A Criteria 1, 3, 4, 6, and 12. The staff itself acknowledged this last summer when it began its post-hearing, post-license-issuance (re)consideration of the Kerr-McGee design and solicited further information and technical analyses: "At the present time, it is not clear that the designs of the top and side slopes, the diversion channels, or the sedimentation basin are adequate to resist erosion to the extent that the requirements of 10 CFR 40 Appendix A are met." n176
n175 In this regard, Kerr-McGee argues that the staff's request for further information and reevaluation of Kerr-McGee's cell design "merely reinforces the validity of the Licensing Board's decision," that the STP has "no binding regulatory significance," and that, in any event, Kerr- of the ability of its design to withstand a PMP event. Kerr-McGee Opposition at 25, 26, 28. We have already disposed of the first two arguments supra pp. 48, 49, and we address the third infra pp. 59-62.
n176 Swift Letter, Enclosure 3 at 1. [*86]
Consideration of the PMP event in erosion analyses, for example, is essential in order to assure compliance with the NRC's requirements established for mill tailings disposal. Although, as the Licensing Board found, Appendix A does not explicitly state that disposal systems must be designed to withstand a PMP event, n177 this necessarily follows from the 1000-year longevity requirement imposed by Appendix A Criterion 6. As EPA explains,
"reasonable assurance" of control of radiological hazards means use of the Probable Maximum Precipitation (PMP) event in disposal cell design, since no other reference precipitation event (100 year, 200 year storm, etc.) carries reasonable assurance (e.g., 95% probability) that a more severe event will not occur within 1,000 years. Hence, to be adequately protective of human health and the environment, a disposal cell design should be modelled to withstand the PMP event. n178
n177 LBP-89-35, 30 NRC at 688.
n178 EPA Brief at 7. See also the Statement of Consideration for EPA's final rules on "Environmental Standards for Uranium and Thorium Mill Tailings at Licensed Commercial Processing Sites" (which are codified at 40 C.F.R. @@ 192.30-.43), 48 Fed. Reg. 45,926, 45,936-37 (1983).
EPA also criticizes, correctly in our view, Kerr-McGee's reliance on, and the Licensing Board's acceptance of, precipitation estimates lower than a PMP event because the Department of the Interior's Bureau of Reclamation permits the use of such lower magnitude events in designing small dams. EPA points out that the Bureau of Reclamation permits the use of less than a PMP event
when property damage is the relevant consideration . . ., but allows no such modification when there is a potential for loss of life. As the princip[al] purpose of the Mill Tailings Standard is to protect human health and the environment, not to limit property damage, modifications to the PMP based upon criteria designed to protect against property loss do not appear to be appropriate to demonstrate compliance with the standard.
EPA Brief at 7-8. [*87] The staff now agrees with and fully adopts this position in its STP and appellate brief. n179
n179 STP at 5; NRC Staff Brief at 34; Johnson Affidavit at 4.
3. The materiality of the staff's changes in position subsequent to the rendering of the Licensing Board's decisions has already been demonstrated in connection with the State's and the City's motion to vacate. n180 Certainly the Licensing Board was influenced by the staff's former (1) acceptance and approval of the vegetative cover as the primary erosion protection for purposes of satisfying the Appendix A Criteria, and corresponding lack of analyses concerning the clay-cobble layer; (2) definition of "active maintenance" so as to include mowing, revegetation, and minor repairs; and (3) use of less than a PMP event in its erosion analysis. Had the current staff views been made known during the course of the proceeding below, the focus of the litigation would have been on the clay-cobble intrusion barrier, instead of the vegetative cover, and the composition of the evidentiary record would have been quite different. n181
n180 See supra pp. 37-52.
n181 Compare Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), ALAB-209, 7 AEC 971 (1974). An intervenor moved to reopen a closed record based on a staff "working paper" that the intervenor alleged was "'diametrically opposed' to the position [the staff] took in this proceeding." Id. at 971. The staff, however, characterized the document as simply "'a mechanism for exploring and formulating a possible new approach to the regulatory process,'" and resisted the notion that it "present testimony on the contents of the working paper in this adjudicatory proceeding." Id. at 972-73 (emphasis added). We denied the motion to reopen, finding that the working paper alone had no regulatory significance. Id. at 973-74. In contrast to the case at bar, we also found "no conflict between the staff expert testimony in this proceeding and the content of the draft working document." Id. at 975 (footnote omitted). We noted in this regard, however, that, "in the event the staff expert testimony in this proceeding appeared to be impeached by subsequent staff expert opinion[,] . . . obviously the issue of the continuing validity of the staff expert testimony should be explored." Ibid. n.16.
See also Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-770, 19 NRC 1163 (1984). While the case was pending on the applicant's appeal from a licensing board decision that denied its license request due to quality assurance (QA) problems, the applicant completed its QA reinspection program and the staff concluded its evaluation thereof. We granted applicant's request to reopen the evidentiary record for consideration of this new information and for further hearing on whether there was reasonable assurance that the facility had been constructed properly. [*88]
Kerr-McGee contends that a materially different result would not have been likely because "[t]he new information merely serves to show that the cell can withstand a PMP even if such a demonstration were required." n182 But this assumes that the ability of the clay-cobble layer to withstand a PMP and otherwise to resist erosion has been irrefutably shown. To be sure, Kerr-McGee is confident in the new analyses that it has performed, and the staff has given the clay-cobble layer its blessing. But in their separate replies to the staff's brief and attached affidavits, the State and the City challenge, through their own affidavits, the conclusion that the new analyses and design specifications recently supplied by Kerr-McGee to the staff satisfactorily address the erosion problem and meet regulatory requirements.
n182 Kerr-McGee Opposition at 28.
For example,the State's expert, Dr. Gerald R. Thiers -- who provided testimony, by way of affidavit, on behalf of the State before the Licensing Board -- criticizes Kerr-McGee's new design flow calculations. Specifically, he claims that both the runoff velocity and coefficient have been understated, and that the calculations [*89] have failed to account for a concentration of runoff on the east side of the disposal cell. As a result, according to Dr. Thiers, Kerr-McGee proposes to use smaller riprap than is necessary to prevent erosion. n183 Dr. Thiers also questions Kerr-McGee's assumptions regarding the size, fines content (i.e., clay and silt), and specific gravity of the rock riprap used in the clay-cobble layer. He asserts that the assumptions used in the analysis are based on materials that differ significantly in both content and quality from those proposed for the West Chicago site. n184 As a consequence, Dr. Thiers believes that "the changes proposed will not prevent the likelihood of riprap erosion and breaching of the cell cover, leading to spreading of tailings into the environment, or at least requiring active maintenance to prevent spread of tailings." n185 Dr. Thiers challenges the rock size proposed for the diversion ditches as well. Finally, he contends that, if larger size rock riprap is used -- which Dr. Thiers believes is necessary -- increased costs will be incurred and must be factored into the cost-benefit balance. n186 The City's expert, Dr. George B. Levin, makes similar [*90] challenges to the new Kerr-McGee and staff analyses. n187
n183 Response of Illinois to the NRC Staff Brief (Oct. 5, 1990) [hereinafter Illinois Reply Brief] at 3-4; Affidavit of Dr. G. R. Thiers [hereinafter Thiers Oct. 5, 1990, Affidavit], attached to Illinois Reply Brief, at 4-5.
n184 Illinois Reply Brief at 4-6; Thiers Oct. 5, 1990, Affidavit at 5-8.
n185 Thiers Oct. 5, 1990, Affidavit at 8.
n186 Illinois Reply Brief at 6-8; Thiers Oct. 5, 1990, Affidavit at 9-12.
n187 See Affidavit of G. B. Levin, attached to West Chicago's Response to NRC Staff's August 10, 1990 Brief (Oct. 5, 1990), at 13-20.
In the face of these challenges to the new analyses, we conclude that "a materially different result . . . would have been likely had the newly proffered evidence been considered initially." n188 This is not to say that the views of Dr. Thiers and Dr. Levin alone would necessarily have been, or are, dispositive of the issue. But the combined effect of these challenges with the staff's changes in position and the significant amount of new information that has been generated since the Licensing Board's decision precludes the result reached earlier by the Licensing Board [*91] -- i.e., a grant of summary disposition in Kerr-McGee's favor. n189 At a minimum, a hearing on these new disputed issues of material fact would be necessary. n190
n188 10 C.F.R. @ 2.734(a)(3).
n189 As noted previously, supra note 173, in its motion for reconsideration of the PMP issue, the State called the Licensing Board's attention to the August 1989 version of the STP. Observing that it was entitled to "no regulatory force," the Board considered the draft STP anyway and concluded that it provided no basis for reconsidering its earlier decision. Feb. 13 Order at 5. The Board noted that the draft STP allowed vegetative covers to serve as the primary erosion barrier. Id. at 5-7. It also concluded "without further inquiry that the minimum design objective of Appendix A to assure isolation for 200 years is self evidently met by a wide margin under the PMP-B [i.e., less than a PMP magnitude event] design criterion." Id. at 8.
The Licensing Board's consideration of the draft STP does not affect our conclusion that the State's and the City's motion satisfies the third reopening criterion, i.e., likely materiality. In the first place, at the time the Board was presented with the draft STP, the staff had not yet applied the STP to this particular proceeding, as the staff has now done in its brief on appeal. Second, the Licensing Board's decision on reconsideration assumes that the vegetative cover is still the staff's preference, and that some maintenance thereof is acceptable under Appendix A -- both of which have subsequently been eschewed by the staff. Finally, as we explain infra pp. 115-16, the Board erred in concluding that isolation for 200 years is the minimum design objective of Appendix A. In these circumstances, it cannot be reasonably argued that the Licensing Board has already considered and rejected the STP and thus that a materially different result would not be likely.
n190 See infra pp. 110-11. [*92]
4. The motion to reopen is also more than adequately documented, as required by 10 C.F.R. @ 2.734(b). It contains specific references to, among other things, the Board's decision, earlier filings, the parties' briefs, and other materials generated and provided by Board Notification during the pendency of the appeals. n191 It also specifically incorporates the affidavits attached to the staff's brief and on which the State and the City rely heavily to establish the staff's changes in position. n192 Finally, as has been shown, the affidavits attached to the State's and the City's reply briefs to the NRC staff brief supplement their motion to reopen. n193
n191 As the Board Notifications themselves state, "[i]n conformance with the Commission's policy on notification of Licensing Boards, Appeal Boards, or [the] Commission," they provide "new, relevant, and material information." See, e.g., Board Notification 90-04.
n192 Motion to Vacate at 18 n.11. In the circumstances here, to require additional affidavits directly from the movants that would merely repeat information already contained in existing materials in the docket of this proceeding would burden the record unduly, elevate form over substance, and over-judicialize the agency's public hearing process.
n193 It cannot be argued that these affidavits are untimely because they were not filed with the motion to reopen. The staff recognized that the State and the City must be given a reasonable opportunity to respond to the new material in the staff's appellate brief, and it thus urged us not to rule on the motion to vacate/reopen until those responses were filed. NRC Staff Brief at 38; Staff Response to Motion to Vacate at 8. Hence, the Thiers and Levin Affidavits were timely filed with the State's and the City's reply briefs approximately five weeks after the motion to vacate/reopen, in accordance with a filing schedule set by order after soliciting input from all the parties. See Appeal Board Order of Sept. 19, 1990 (unpublished). Neither Kerr-McGee nor the staff sought leave to respond to the new Thiers and Levin affidavits. [*93]
Thus, had we not already determined that the Licensing Board's decision should be vacated in light of subsequent developments, there is ample ground for reopening the record to consider this new information. In ordinary circumstances, we would remand the matter to the Licensing Board for further evidentiary development. n194 But as is evident from Part II of this opinion, the circumstances of this proceeding are quite extraordinary. And, as also noted above, we address the future course of this matter later in this decision. n195
n194 Although, as Kerr-McGee and the staff point out, we have the authority to hear evidence and decide matters in the first instance, the exercise of that authority has always been solely a matter of our discretion, dependent upon the particular circumstances of the case and available resources.
n195 See supra p. 52 & infra pp. 122-24.
IV. The Appeals
Obviously the events discussed in Part III of this opinion have overtaken, in large measure, many of the issues raised by the State and the City in their briefs on appeal from the Licensing Board's initial decision and related rulings. Review of several of the most significant [*94] of those issues, however, demonstrates that, even if the staff had not subsequently and substantially changed the position it presented to the Licensing Board, the Licensing Board's ultimate decision cannot stand. As discussed below, we conclude that the Board erred in several fundamental rulings, so as to warrant reversal of its decision authorizing the issuance of the license amendment to Kerr-McGee.
A. The State and the City initially challenge the Licensing Board's interpretation of the siting provisions of Appendix A Criterion 1. Before addressing the background and requirements of the Commission's mill tailings regulations and the Licensing Board's reading of them, it is helpful first to review the provisions of UMTRCA and its amendments, pursuant to which Appendix A was promulgated.
1. Congress enacted UMTRCA in 1978 to ameliorate the health and environmental hazards presented by uranium and thorium mill tailings. This action was based upon a finding that
mill tailings located at active and inactive mill operations may pose a potential and significant radiation health hazard to the public, and that the protection of the public health, safety, and welfare and [*95] the regulation of interstate commerce require that every reasonable effort be made to provide for the stabilization, disposal, and control in a safe and environmentally sound manner of such tailings in order to prevent or minimize radon diffusion into the environment and to prevent or minimize other environmental hazards from such tailings. n196
n196 UMTRCA, Pub. L. No. 95-604, @ 2(a), 92 Stat. 3021-22.
In explaining the need for UMTRCA, the House Report -- the only report accompanying the legislation -- relied upon the description of the public health hazard of mill tailings in the testimony of then NRC Chairman, Dr. Joseph M. Hendrie:
The NRC believes that long-term release from tailings piles may pose a radiation health hazard if the piles are not effectively stabilized to minimize radon releases and prevent unauthorized use of the tailings.
* * *
Unlike high-level radioactive waste from the back end of the nuclear fuel cycle, which contains products of the fission reaction, mill tailings contain only naturally occurring radioactive elements, in small quantities. The radioactive decay of these elements leads to production of radon, a radioactive gas with a halflife of about four days, which can diffuse from a tailings pile into the atmosphere and subsequently expose persons to radiation far away from the pile. The increased exposure compared to exposure from radon already in the atmosphere from other sources is exceedingly slight, but this increase is in effect permanent. This is because radon production in mill tailings continues for times of the order of a hundred thousand years, so the tailings pile becomes a perpetual source injecting a small amount of radon into the atmosphere, unless some action is taken to keep the radon from escaping.
The health effects of this radon production are tiny as applied to any one generation, but the sum of these exposures can be made large by counting far into the future, large enough in fact to be the dominant radiation exposure from the nuclear fuel cycle. Whether it is meaningful to attach significance to radiation exposures thousands of years in the future, or conversely, whether it is justifiable to ignore them, are questions without easy answers. The most satisfactory approach is to require every reasonable effort to dispose of tailings in a way that minimizes radon diffusion into the atmosphere.
H.R. Rep. No. 1480, 95th Cong., 2d Sess., pt. 2, at 25 (1978) (ellipsis in original). [*96]
The purposes of UMTRCA are twofold: first, to provide a remedial action program at inactive mill tailings sites; n197 and second, to provide a program for the regulation of "mill tailings during uranium or thorium ore processing at active mill operations and after termination of such operations." n198 Thus, Title I of UMTRCA provides a specific remedial program for a number of designated inactive and abandoned tailings sites under the primary direction of the Department of Energy. n199 Title II, on the other hand, establishes a comprehensive program for NRC regulation at active (licensed) mill tailings sites, by amending the AEA to include uranium and thorium mill tailings in the definition of byproduct material in section 11(e)(2), and by adding sections 83, 84, and 275 and amending sections 161 and 274 of the AEA so as to provide the Commission with broad authority to manage all aspects of mill tailings sites. n200 UMTRCA also directed EPA to promulgate "standards of general application" for both programs. n201 Title II charged the NRC, however, with implementing and enforcing the EPA standards, in addition to establishing its own specific requirements and standards [*97] for carrying out the purposes of UMTRCA and conforming its regulations to the EPA general standards. n202
n197 Pub. L. No. 95-604, @ 2(b)(1), 92 Stat. 3022.
n198 Id. @ 2(b)(2), 92 Stat. 3022.
n199 Id. @@ 101-115, 92 Stat. 3022-33.
n200 Id. @@ 201-206, 92 Stat. 3033-41.
n201 Id. @ 206, 92 Stat. 3040.
n202 Id. @@ 203, 205, 92 Stat. 3036, 3039.
As described in the House Report, the dual EPA and NRC standard-setting regime contemplated that
[t]he EPA standards and criteria should be developed to limit the exposure (or potential exposure) of the public and to protect the general environment from either radiological or nonradiological substances to acceptable levels through such means as allowable concentrations in air or water, quantities of the substances released over a period of time, or by specifying maximum allowable doses or levels to individuals in the general population.
H.R. Rep. No. 1480, supra note 196, pt. 1, at 16-17. The NRC, on the other hand,
must set all standards and requirements relating to management concepts, specific technology, engineering methods, and procedures to be employed to achieve desired levels of control for limiting public exposure, and for protecting the general environment. The Commission's standards and requirements should be of such nature as to specify, fo