NUCLEAR REGULATORY COMMISSION ISSUANCES OPINIONS AND DECISIONS OF THE NUCLEAR REGULATORY COMMISSION WITH SELECTED ORDERS January 1, 2008 S June 30, 2008 Volume 67 Pages 1 - 508 Prepared by the Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-492-3678) COMMISSIONERS Dale E. Klein, Chairman Gregory B. Jaczko Peter B. Lyons Kristine L. Svinicki* Luis A. Reyes, Executive Director for Operations (January 1, 2008 to May 1, 2008) William Borchardt, Executive Director for Operations (May 2, 2008 to June 30, 2008) Karen D. Cyr, General Counsel E. Roy Hawkens, Chief Administrative Judge, Atomic Safety & Licensing Board Panel * Ms. Svinicki began serving as Commissioner on March 28, 2008. ii ATOMIC SAFETY AND LICENSING BOARD PANEL E. Roy Hawkens,* Chief Administrative Judge Thomas S. Moore,* Associate Chief Administrative Judge (Legal) Dr. Anthony J. Baratta,* Associate Chief Administrative Judge (Technical) Dr. Paul B. Abramson,* Special Associate Chief Administrative Judge (Technical/Legal) Members Dr. Gary S. Arnold Dr. Thomas J. Hirons Dr. William H. Reed G. Paul Bollwerk, III* Dr. James F. Jackson Alan S. Rosenthal Dr. Mark O. Barnett Alex S. Karlin* Lester S. Rubenstein Dr. Robin Brett Dr. William E. Kastenberg Paul S. Ryerson* Dr. William C. Burnett Dr. Charles N. Kelber Dr. William W. Sager Dr. Richard F. Cole* Dr. Michael F. Kennedy* Dr. David R. Schink Dr. Thomas S. Elleman Dr. Kaye D. Lathrop Ronald M. Spritzer* Michael C. Farrar* Dr. R. Bruce Matthews Dr. Michael G. Stevenson William J. Froehlich* Lawrence G. McDade* Nicholas G. Trikouros* Dr. Michael O. Garcia Dr. Alice C. Mignerey Dr. Richard E. Wardwell* Brian K. Hajek Dr. William M. Murphy Dr. Craig M. White Dr. Yassin A. Hassan Dr. Kenneth L. Mossman Ann M. Young* Dr. David L. Hetrick Dr. Frederick W. Oliver * Full-time panel members iii PREFACE This is the sixty-seventh volume of issuances (1–508) of the Nuclear Regulatory Commission and its Atomic Safety and Licensing Boards, Administrative Law Judges, and Office Directors. It covers the period from January 1, 2008, to June 30, 2008. Atomic Safety and Licensing Boards are authorized by Section 191 of the Atomic Energy Act of 1954. These Boards, comprised of three members, conduct adjudicatory hearings on applications to construct and operate nuclear power plants and related facilities and issue initial decisions which, subject to internal review and appellate procedures, become the final Commission action with respect to those applications. Boards are drawn from the Atomic Safety and Licensing Board Panel, comprised of lawyers, nuclear physicists and engineers, environmentalists, chemists, and economists. The Atomic Energy Commission (AEC) first established Licensing Boards in 1962 and the Panel in 1967. Between 1969 and 1990, the AEC authorized Atomic Safety and Licensing Appeal Boards to exercise the authority and perform the review functions which would otherwise have been exercised and performed by the Commission in facility licensing proceedings. In 1972, that Commission created an Appeal Panel, from which were drawn the Appeal Boards assigned to each licensing proceeding. The functions performed by both Appeal Boards and Licensing Boards were transferred from the AEC to the Nuclear Regulatory Commission by the Energy Reorganization Act of 1974. Appeal Boards represented the final level in the administrative adjudicatory process to which parties could appeal. Parties, however, were permitted to seek discretionary Commission review of certain board rulings. The Commission also could decide to review, on its own motion, various decisions or actions of Appeal Boards. On June 29, 1990, however, the Commission voted to abolish the Atomic Safety and Licensing Appeal Panel, and the Panel ceased to exist as of June 30, 1991. Since then, the Commission itself reviews Licensing Board and other adjudicatory decisions, as a matter of discretion. See 56 Fed. 29 & 403 (1991). The Commission also has Administrative Law Judges appointed pursuant to the Administrative Procedure Act, who preside over proceedings as directed by the Commission. The hardbound edition of the Nuclear Regulatory Commission Issuances is a final compilation of the monthly issuances. It includes all of the legal precedents for the agency within a six-month period. Any opinions, decisions, denials, memoranda and orders of the Commission inadvertently omitted from the monthly softbounds and any corrections submitted by the NRC legal staff to the printed softbound issuances are contained in the hardbound edition. Cross references in the text and indexes are to the NRCI page numbers which are the same as the page numbers in this publication. Issuances are referred to as follows: Commission—CLI, Atomic Safety and Licensing Boards-LBP, Administrative Law Judges—ALJ, Directors' Decisions—DD, and Decisions on Petitions for Rulemaking—DPRM. The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any independent legal significance. v Available from Superintendent of Documents U.S. Government Printing Office Mail Stop SSOP Washington, DC 20402-0001 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication. Single copies of this publication are available from National Technical Information Service Springfield, VA 22161-0002 Errors in this publication may be reported to the Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-492-3678) CONTENTS Issuances of the Nuclear Regulatory Commission AMERGEN ENERGY COMPANY, LLC (Oyster Creek Nuclear Generating Station) Docket 50-219-LR Order, CLI-08-10, May 28, 2008 ................................ 357 Memorandum and Order, CLI-08-13, June 17, 2008 ................. 396 DARYL M. SHAPIRO NRC Investigation No. 2-2006-17 Memorandum and Order, CLI-08-6, March 27, 2008 ................ 179 ENTERGY NUCLEAR GENERATION COMPANY and ENTERGY NUCLEAR OPERATIONS, INC. (Pilgrim Nuclear Power Station) Docket 50-293-LR Memorandum and Order, CLI-08-2, January 15, 2008 ............... 31 Memorandum and Order, CLI-08-9, May 16, 2008 .................. 353 ENTERGY NUCLEAR OPERATIONS, INC. (Indian Point, Units 2 and 3) Dockets 50-247-LR, 50-286-LR Memorandum and Order, CLI-08-7, April 30, 2008 ................. 187 PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation) Docket 72-26-ISFSI Memorandum and Order, CLI-08-1, January 15, 2008 ............... 1 Order, CLI-08-5, March 27, 2008 . ............................... 174 Memorandum and Order, CLI-08-8, April 30, 2008 ................. 193 PA’INA HAWAII, LLC Docket 30-36974-ML Memorandum and Order, CLI-08-3, March 17, 2008 ................ 151 Memorandum and Order, CLI-08-4, March 27, 2008 ................ 171 U.S. DEPARTMENT OF ENERGY (High-Level Waste Repository) Dockets PAPO-00, PAPO-001 Memorandum and Order, CLI-08-11, June 5, 2008 .................. 379 Docket PAPO-00 Memorandum and Order, CLI-08-12, June 17, 2008 ................. 386 Docket PAPO-001 Memorandum and Order, CLI-08-14, June 17, 2008 ................. 402 vii Issuances of the Atomic Safety and Licensing Boards CROW BUTTE RESOURCES, INC. (North Trend Expansion Project) Docket 40-8943 Memorandum and Order, LBP-08-6, April 29, 2008 ................. 241 DOMINION NUCLEAR CONNECTICUT, INC. (Millstone Nuclear Power Station, Unit 3) Docket 50-423-OLA Memorandum and Order, LBP-08-9, June 4, 2008 .................. 421 PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation) Docket 72-26-ISFSI Order, LBP-08-7, May 14, 2008 . ................................ 361 SHAW AREVA MOX SERVICES (Mixed Oxide Fuel Fabrication Facility) Docket 70-3098-MLA Memorandum and Order, LBP-08-11, June 27, 2008 ................ 460 SHIELDALLOY METALLURGICAL CORPORATION (Amendment Request for Decommissioning of the Newfield, New Jersey Facility) Docket 40-7102-MLA Memorandum, LBP-08-8, June 2, 2008 ........................... 409 SOUTHERN NUCLEAR OPERATING COMPANY (Early Site Permit for Vogtle ESP Site) Docket 52-011-ESP Memorandum and Order, LBP-08-2, January 15, 2008 ............... 54 Memorandum and Order, LBP-08-3, January 15, 2008 ............... 85 U.S. ARMY (Jefferson Proving Ground Site) Docket 40-8838-MLA Initial Decision, LBP-08-4, February 28, 2008 ..................... 105 U.S. DEPARTMENT OF ENERGY (High-Level Waste Repository) Docket PAPO-00 Memorandum, LBP-08-1, January 4, 2008 ........................ 37 Memorandum and Order, LBP-08-5, April 23, 2008 ................. 205 Docket PAPO-001 Memorandum and Order, LBP-08-10, June 20, 2008 ................ 450 viii Issuance of Director’s Decision ENTERGY NUCLEAR VERMONT YANKEE, LLC, and ENTERGY NUCLEAR OPERATIONS, INC. (Vermont Yankee Nuclear Power Station) Docket 50-271 Director’s Decision, DD-08-1, April 28, 2008 ...................... 347 Indexes CaseNameIndex...............................................I-1 LegalCitationsIndex............................................I-3 Cases ......................................................I-3 Regulations ................................................I-31 Statutes....................................................I-49 Others.....................................................I-53 SubjectIndex .................................................I-55 Facility Index .................................................I-93 ix Cite as 67 NRC 1 (2008) CLI-08-1