DOCKETEDU SNRC

UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION "6 AUG 17 RHl :45

ATOMIC SAFETY AND LICENSING BOARD PANELOFf ,

Before Administrative Judges: Peter B. Bloch, Presiding OfficbrUj.Richard F. Cole, Special Assistant-

)In the Matter of: )

) Docket No. 40-8681-MLA-4INTERNATIONAL URANIUM )(USA) CORPORATION )(source material license amendment)) August 12, 1998

STATE OF UTAH'S REQUEST FOR A RULING ON CLAIMEDPROPRIETARY OR CONFIDENTIAL INFORMATION USED BY THE

STATE TO SUPPLEMENT ITS MOTION FOR A STAY AND REQUEST FORTEMPORARY STAY

During a transcribed telephone conference convened at 2 p.m. EDT, August 7,

1998, International Uranium (USA) Corporation ("IUC") agreed to provide the State,

among other things, with a copy of the ICF Kaiser Sampling and Analysis Plan

("Kaiser SAP) for the Tonawanda Site. Subsequent to the telephone conference, IUC

informed the State that it would only provide the State with a copy of the Kaiser SAP

if the State promised to keep the Kaiser SAP confidential, and, in particular, IUC did

not want the State to disclose the document to Envirocare. Given that the State would

have only one to two days to review the Kaiser SAP, as well as other documents

provided to it by IUC, and report back to the Presiding Officer, the State reluctantly

agreed to IUC's request. Because of its commitment to IUC, the State felt obliged to

submit yesterday's pleading, "State of Utah's Supplement to Its Motion for a Stay and

G~c, o41lqq3

I

U. CL I 'EGULATORY COMMSSIONWUIaAKIGS&AWWICAI1ONS STff

OFFICE OF THE SECRETARYOF THE COMMISSION

Document Statiscs

PostMalk Date ICopies Received 3Add1i Copies Reproduced _ -

Special Distributlon-,@-C :"a/TLý _

Request for a Temporary Stay after Review of Information Provided by the Licensee"

(hereafter "Utah's Supplement to Its Motion for a Stay"), as a proprietary and

confidential pleading, pending review.1 After review of its pleading, the State advises

the Presiding Officer that only section 2 of the pleading, at pages 6-8, and Exhibit 8,

relate to the Kaiser SAP. As such, those portions of the pleading are subject to any

proprietary or confidentiality claim. A copy of the pleading, with the Kaiser SAP

discussion at pages 6-8 redacted from the pleading, is attached hereto.

The State requests the Presiding Officer to rule whether the State's pleading,

State's Supplement to Its Motion for a Stay, should be treated as a proprietary or

confidential pleading. The State does not see how a Sampling and Analysis Plan

prepared by a contractor to a federal agency, the U.S. Army Corps of Engineers, could

possibly be confidential or proprietary. The State finds it intolerable that IUC, either

independently or at the behest of ICF Kaiser, will only provide what appear to be

public documents to the State provided the State does not disclose such documents.

The documents are either confidential or they are open public documents.

The State served all parties, except Envirocare, with a copy of the pleading

because those parties were privy to the Kaiser SAP. With this pleading, the Stateserves Envirocare with a redacted copy of the pleading and Exhibits 1-7 and 9-10.

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The State requests the Presiding Officer find that the pleading submitted by the

State, State's Supplement to Its Motion for a Stay, is an open public document.

DATED this 12th day of August, 1998.

Respectfully submitted,

Fred G Nelson, Assistant Attorney GeneralDenise Chancellor, Assistant Attorney GeneralAttorneys for the State of UtahUtah Attorney General's Office160 East 300 South, 5th Floor, P.O. Box 140873Salt Lake City, UT 84114-0873Telephone: (801) 366-0290, Fax: (801) 366-0292

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DOCKETEDUSNRO

CERTIFICATE OF SERVICE

I hereby certify that copies of STATE OF UTAH'S REQUEST MR/NG 17 A! 1 :47

RULING ON CLAIMED PROPRIETARY OR CONFIDENTIAL"

INFORMATION USED BY THE STATE TO SUPPLEMENT ITS MOTION FOR

A STAY AND REQUEST FOR TEMPORARY STAY were served on the persons

listed below by first class mail, on August 12, 1998:

Attn: Docketing & Service BranchSecretary of the CommissionU.S. Nuclear Regulatory CommissionWashington, D.C. 20555(original and two copies)

Administrative JudgePeter B. Bloch, Presiding OfficerAtomic Safety & Licensing BoardMail Stop T-3 F23U. S. Nuclear Regulatory CommissionWashington, DC 20555

Administrative JudgeRichard F. Cole, Special AssistantAtomic Safety & Licensing BoardMail Stop T-3 F23U. S. Nuclear Regulatory CommissionWashington, DC 20555

Office of Commission AppellateAdjudicationU.S. Nuclear Regulatory CommissionWashington, DC 20555

Anthony J. Thompson, Esq.Frederick S. Phillips, Esq.Shaw Pittman Potts &Throwbridge2300 N. Street, N.W.Washington, DC 20037-1128

Lawrence J. Chandler, Esq.Office of the General CounselMail Stop - 0-15 B18U.S. Nuclear Regulatory

CommissionWashington, D.C. 20555-0001

David J. Jordan, Esq.Jill M. Pohlman, Esq.Stoel Rives LLPOne Utah Center, 11th Floor201 South Main StreetSalt Lake City UT 84111-4904(including Exhibits 1-7 and 9-10 ofthe State's Supplement)

enise ChancellorAssistant Attorney General, State of Utah

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DOCKETEDUSNPC

REDACTED COPY

M9 AUG 17 All :45

UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION OFF-,.

ADJU~I.:,:, ••F

ATOMIC SAFETY AND LICENSING BOARD PANEL

Before Administrative Judges: Peter B. Bloch, Presiding OfficerRichard F. Cole, Special Assistant

)In the Matter of: )

) Docket No. 40-8681-MLA-4INTERNATIONAL URANIUM )(USA) CORPORATION )(source material license amendment) ) August 11, 1998

STATE OF UTAH'S SUPPLEMENT TO ITS MOTION FOR A STAY ANDREQUEST FOR A TEMPORARY STAY AFTER REVIEW OF

INFORMATION PROVIDED BY THE LICENSEE

This pleading is submitted in response to a request by Judge Bloch during a

transcribed telephone conference convened at 2 p.m. EDT, August 7, 1998, that the

State report back to him today, August 11, on the status of the State's review of

information provided to the State by International Uranium (USA) Corporation

("IUC") and the status of settlement negotiations between IUC and the State. The

State and IUC have not been able to reach agreement on the Motion for Stay.

The State received from IUC a copy of Volumes 1 and 2 of the Remedial

Investigation Report for the Tonawanda Site, DOE/OR/21949-300 ("RI") and the

Sampling and Analysis Plan prepared by ICF Kaiser for the FUSRAP Ashland 2

Remedial Action Towawanda, New York site, dated May 29, 1998, Contract No.

DACA31-95-D-0083, TERC ("ICF Kaiser SAP"). IUC would not agree to give the

State the ICF Kaiser SAP unless the State agreed to keep it confidential from

Envirocare. Therefore, a copy of this pleading has not been served on attorneys for

Envirocare. It is assumed the NRC Staff has already been provided with a copy of the

ICF Kaiser SAP. The State's technical staff spent Monday, August 10, reviewing those

documents. The State did not receive any sample analytical results that ICF Kaiser

may have conducted at the Ashland 2 site. In fact, IUC's attorney represented to the

State's attorney that ICF Kaiser has given sample results to IUC but ICF Kaiser will

not authorize IUC passing on those results to the State.1

Necessarily, the State's effort yesterday to review the two volume RI and the

ICF Kaiser Sampling and Analysis Plan was limited. However, in its review of the

documents, the State has found four fundamental flaws in the determination of

whether the waste material from the Ashland 2 site, which is intended to be processed

at the White Mesa Mill, contains hazardous waste: (1) there has been no determination

made whether the Ashland 2 site contains listed hazardous waste; (2) the ICF Kaiser

Sampling and Analysis Plan is deficient to determine whether listed hazardous wastes

are present in excavated materials; (3) the White Mesa mill has no plan for

1 Conversation between Fred Phillips, Shaw Pittman Potts and Throwbridge,

and Fred Nelson, Assistant Attorney General, approximately 10 a.m. (MDT) August11, 1998.

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confirmatory sampling to determine that no listed hazardous wastes are present in

material delivered to and processed at the mill; and (4) it cannot be confirmed whether

listed hazardous wastes are in the shipments unless the results from ICF Kaiser's

sampling of excavated materials are made available to the NRC Staff and the State.2

1. There has been no determination that the Ashland 2 site containslisted hazardous waste.

There has been no determination made whether the Ashland 2 site contains

listed hazardous waste. The decision by the licensee, NRC Staff and Army Corps of

Engineers and its contractor, ICF Kaiser, to rely on the RI to determine whether the

Ashland 2 material contains listed hazardous waste is inherently flawed because the RI

determination relating to hazardous waste was with respect to characteristic - not listed

- hazardous waste. RI, Executive Summary at v, attached hereto as Exhibit 2. One of

the main purposes of the Remedial Investigation of the Tonawanda site, performed to

support the selection of remedial action alternatives for the site, was to define the

2 These findings by the State in its review of materials submitted to it by IUC

are supported by the Affidavit of William J. Sinclair, attached hereto at Exhibit 1.

' There are two general categories of hazardous waste under RCRA:Characteristic waste and listed waste. Listed waste is hazardous waste listed underEPA or authorized state regulations. See 40 CFR Subpart D. The NRC final guidanceon alternate feed materials disallows feed material that contains listed hazardous waste.See 60 Fed. Reg. 49,296, 49396-97 (1995).

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nature and extent of radiologic contamination arising from uranium processing

activities conducted by Manhattan Engineer District (MED). However, the MED-

related waste was commingled with refinery-related contaminated soils. RI (Executive

Summary) at iii, Exhibit 2.

The MED generated 8,000 tons of tailings; then in 1960 the property on which

the tailings were located (Ashland 1) was transferred to Ashland Oil Company, where

two petroleum storage tanks and a drainage ditch were constructed. Technical

Evaluation Report ("TER") (attached to the State's Request for Hearing and Petition

for Leave to Intervene, dated July 23, 1998) at 1-2. The transfer of the MED-

contaminated tailings to the Ashland 2 site for disposal also contained contaminated

soils from the Ashland 1 site. The Ashland 2 site adjoined an industrial landfill that

accepted chemical and industrial byproducts. The landfill was operated by Ashland

Oil. TER at 1-2. Of significant importance is the fact that the MED wastes

constituted only 8,000 tons of material while the excavated material is 25,000 cubic

yards (a cubic yard is roughly equivalent to a ton). The question of what is in this

extra material is not answered by the RI.

There is ample reason to believe that the Ashland 2 site contains listed

hazardous waste. The Remedial Investigation identified the presence in the soils of

semi-volatile organics such as 2-methylnaphahthalene, phenanthrene, fluouanthene,

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pyrene, benzo(a) anthracene, bis (2-ethylhexy) phthalate, crysene, benzo (a) pyrene).

RI at 1-29, attached hereto as Exhibit 3. The RI states that detection of such

constituents "indicates waste oils (by-products of an oil refining process)." RI at 4-72,

attached hereto as Exhibit 4. The Manhattan Engineering District Linde Ceramics

Plan, which produced the MED waste, did not use solvent or an organic extraction.

Process Diagram, RI, Fig. 1-8, attached hereto as Exhibit 5. By contrast, several oil

refinery wastes, which are listed hazardous wastes, are associated with the above-named

chemical constituents. Only four soil samples, R002, R005, R008 and R011, were

taken from Ashland 2 from the material that is destined for White Mesa. RI, Fig 2-11,

attached hereto as Exhibit 6.' The analytical results of these four samples showed high

concentrations of bis (2-ethylhexy) phthalate, fluoranthene, phenanthrene and pyrene.

RI Table 4-44, attached hereto as Exhibit 7 (see samples B32R05, B23R08, B32R11 and

B32R02). A key criterion for determining whether a listed hazardous waste may be

present is to determine the origin of the waste because listed hazardous wastes are

based on the process from which they originate, not the concentration of the

constituents in the soils. No such process evaluation was done as part of the RI.

Moreover, according to the RCRA hazardous waste mixture rule, if listed refinery

wastes were combined with radiological material as described in the RI, all of the

' There is no determination in the RI that four samples constitute an adequatecharacterization of the wastes.

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resultant mixed material would be considered listed hazardous waste. 40 CFR 5

261.3(a)(2)(iv). Thus, there is substantial evidence to show that the Ashland 2 site

contains listed hazardous waste and that the licensee, NRC Staff and ICF Kaiser

decisions regarding listed hazardous waste are fundamentally flawed.

2. The ICF Kaiser Sampling and Analysis Plan is deficient todetermine whether listed hazardous wastes are present in excavated materials.

------ REDACTED ------

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-REDACTED-

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----- REDACTED -----

3. The White Mesa mill has no plan for confirmatory sampling that no listed

hazardous wastes are present in material delivered to and processed at the mill.

The State has not received a Sampling and Analysis Plan for confirmatory

sampling by IUC that materials received and processed at the White Mesa Mill contain

no listed hazardous waste. The State believes that no such plan exists. The NRC

Technical Evaluation Report states: "Finally, as committed to in its June 11, 1998

letter, IUSA will conduct testing of Ashland 2 material arriving on the site on a regular

basis to confirm ICF Kaiser's determinations." TER at 4. In a June 11, 1998 letter

from IUC to the NRC, IUC states: "Details of the sampling and analysis protocols,

including analytical methods, will be documented in a Sampling and Analysis Plan

("SAP"), prior to receipt of the Ashland 2 Materials." See June 11, 1998 letter,

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attached hereto as Exhibit 9. Furthermore, IUC refers to commitments made in its

June 3, 1998 letter to NRC, attached hereto as Exhibit 10.

The only sampling and analysis plan that the State is aware of is the ICF Kaiser

SAP, which does not cover confirmatory sampling by IUC. Moreover, in IUC's June

3, 1998 letter to Mr. Holonich, NRC, IUC expects ICF Kaiser to take additional field

samples to confirm the absence of listed hazardous waste. Yet there is no additional

field sampling provided for in the SAP. The June 3 letter concludes: "As the [ICF

Kaiser] SAP is satisfactory to IUSA, IUSA would not propose that additional

independent sampling or analyses be performed." See Exhibit 10 at 6. Instead, IUC

will obtain results that ICF Kaiser sampled on site in advance of shipments to White

Mesa. Id. Therefore, it would seem clear from IUC's June 3, 1998 letter to NRC that

IUC does not intend to conduct any independent sampling at White Mesa to confirm

that no listed hazardous waste has been shipped to White Mesa. This is contrary to the

representation in the TER that IUC will be conducting testing of the Ashland 2

material when it arrives at the site. See TER at 4.

4. The results from ICF Kaiser's sampling of excavated materials mustbe made available to the NRC Staff and the State.

It is axiomatic that if IUC is relying on the ICF Kaiser's Sampling and Analysis

Plan and results from on-site sampling to insure that the White Mesa Mill will receive

no listed hazardous waste, then the State and NRC Staff must also be privy to such

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results. There would appear to be no obvious reason why ICF Kaiser has directed IUC

not to forward such results to the State - if such sampling results exist - unless ICF

Kaiser is concerned with the way in which it has conducted its sampling or the results

it has obtained.

DATED this 1 1 h day of August, 1998.

Respectfully submitted,

Fre elson, Assistant Attorney GeneralDenise Chancellor, Assistant Attorney GeneralAttorney for State of UtahUtah Attorney General's Office160 East 300 South, 5th Floor, P.O. Box 140873Salt Lake City, UT 84114-0873Telephone: (801) 366-0290, Fax: (801) 366-0292

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DOCKETEDUSHRC

CERTIFICATE OF SERVICE M98 AUG 17 All :45

I hereby certify that copies of STATE OF UTAH'S SUPPLElvM TO ITSI *ADJ •UL.I•. - i:.

MOTION FOR A STAY AND REQUEST FOR A TEMPORARYAAETER

REVIEW OF INFORMATION PROVIDED BY THE LICENSEE were served on

the persons listed below by fax, unless otherwise noted, on August 11, 1998, and by

first class mail, on August 12, 1998:

Attn: Docketing & Service BranchSecretary of the CommissionU.S. Nuclear Regulatory CommissionWashington, D.C. 20555(original and two copies)

Administrative JudgePeter B. Bloch, Presiding OfficerAtomic Safety & Licensing BoardMail Stop T-3 F23U. S. Nuclear Regulatory CommissionWashington, DC 20555

Administrative JudgeRichard F. Cole, Special AssistantAtomic Safety & Licensing BoardMail Stop T-3 F23U. S. Nuclear Regulatory CommissionWashington, DC 20555

Anthony J. Thompson, Esq.Frederick S. Phillips, Esq.Shaw Pittman Potts &Throwbridge2300 N. Street, N.W.Washington, DC 20037-1128

Lawrence J. Chandler, Esq.Office of the General CounselMail Stop - 0-15 B18U.S. Nuclear RegulatoryCommission

Washington, D.C. 20555-0001

Office of Commission AppellateAdjudicationU.S. Nuclear RegulatoryCommissionWashington, DC 20555(first cLass mail only)

Denise Chancellor"Assistant Attorney General, State of Utah

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