ML20199E691
| ML20199E691 | |
| Person / Time | |
|---|---|
| Site: | Yankee Rowe |
| Issue date: | 01/20/1999 |
| From: | Dignan T ROPES & GRAY, YANKEE ATOMIC ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#199-19921 98-736-01-LA-R, 98-736-1-LA-R, LA-R, NUDOCS 9901210053 | |
| Download: ML20199E691 (20) | |
Text
JD.tu.ISSs J.UUM f wru 6 Ur, Al SV.4cto t.
JU h jq9 Zl c:w no
- m.,
United States of America Nuclear Regulatory Commission
'99 JAN 20 P4 :32 before the Atomic Safey and Licensing Board y.,
- x ADA In the Matter of YANKEE ATOMIC ELECTRIC COMPANY ASW No. W3WhR (Yankee Nuclear Power Station)
RESPONSE OF YANKEE ATOMIC ELECTRIC COMPANY To CAN PROPOSED CONTENTIONS 1
l Pursuant to 10 C.F.R. $ 2.714 and this Board's " Memorandum and Order (Schedules for Remanded Proceeding; Prehearing Conference)" of October 27,1998, as l
amended by this Board's " Change in Filing Schedules and Date of Prehearing Conference" of November 30, 1998, Yankee Atomic Electric Company (" Yankee")
responds to the proposed contentions of Citizens Awareness Network, Inc. ("CAN")8
)
as follows:
1.
Legal Standards I
Proposed contentions are governed by 10 C.F.R. $ 2.714(b)(2), as amended, which in material pan provides as follows:
"(2) Each contention must consist of a specific statement of the issue l
of law or fact to be raised or controverted. In addition, the petitioner shall provide the following information with respect to each contention:
"(i) A brief explanation of the bases of the contention.
"(ii) A concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing, together with references to those specific sources and docu.
ments of which the petitioner is aware and on which the 8' Citizens Awareness Network Contentions," dated January 5,1999.
9901210053 990120 PDR ADOCK 05000029 0
PDR l
m.tu.I m m usra xuru o uni n tet:
- r. n
)
3 petitioner intends to rely to establish those facts or expert opi' mon.
"(iii) Sufficient information (which may include information pur-suant to paragraphs (b)(2)(i) and (ii) of this section) to show that a genuine dispute exists with the applicant on a material issue oflaw or fact. This showing must include references to the specific portions of the application (including the appli-cant's environmental report and safety report) that the peti-tiener disputes and the supporting reasons for each dispute, j
or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons i
for the petitioner's belief. On issues nising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report.
The petitioner can amend those contentions or file new con-tentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assess-ment, or any supplements relating thereto, that differ signifi-Cantly from the data or Conclusions in the applicant's docu-ment."
The requirements for contentions were amended in 1989 to provide for a " higher i
contention admission standard." Baltimore Gas and Electric Co. (Calven Cliffs Nuclear Power Plant, Unites 1 and 2), LBP-98 26, 48 NRC n.8 (Oct.16,1998), citing Yankee Atomic Electric Co (Yankee Nuclear Power Station), CLI-96-7,43 NRC 235, 248-49 (1996).2 "A contentivn may be refused if it does not meet the requirements of section 2.714(b) or if the contention, even if proven, would 'be of no consequence in the proceeding because it would not entitle the petitioner to relief'" Sacramento Municipal Utiliry District (Rancho Seco Nuclear Generating Station), CLI 93 3,37 NRC l
135, 142 (1993).5 2The 1989 amendments to 10 C.F.R. $ 2.714 were upheld as consistent with $ 189a of the Atomic Energy Act in Union of Concerned scientim v. NRC, 920 F.2d 50 (D.C. Cir.1990).
The Appeal Board found in those cases that the current language of 10 CFR 2.714 does not require a petitioner to describe facts which would be offered in support of a proposed contention. The new rule
[
will requite that a petitioner include in its submission some alleged fact or facts in support of its position l
2-l l
JD.(U.1303 UU3rM KVrG o WM
'~~~El~462c r,
u
' - - - ~~
O Contentions are necessarily limited to issues that are germane to the application pending before the Board and the Mons that,he Commission must make in order to approve it. E.g., Yankee Atomic E/ectric Co. (Yai.kee Nuclear Power Station), CU-98 21,48 NRC
& n.7 (Oct. 23,1998) (slip opinion at 15 & n.7); Pacific Gas l
& Electric Co. (Stanislaus Nuclear Project, Unit No.1), ALAB 400,5 NRC 1175,1177-78 (1977). With respect to this type of proceeding (approval of a License Termination Plan submitted in advance of a request for termination of the license), the decisions the Commission must make relate to:
"(1) the licensee's plan for assurin$ that adequate funds will be available for final site release; (2) radiation release criteria for license termination, and (3) adequacy of the final survey required to verify that these release criteria have been met."
61 Fed. Reg. 39,278 at 39,289 (July 29,1996); Yankee Aromic Electric Co. (Yankee Nuclear Power Station), CU-98-21, 48 NRC __,
& n.8 (Oct. 23,1998) (slip opinion at 16 & n.8). With respect to the first of these issues, a contention is not sufficient if it merely challenges the amount of a cost estimate; to be admissible, a contention must contend that there is a want of reasonable usurance that the cost be paid. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI 96-1,43 J
NRC 1, 9 (1996). Moreover, in this puticular proceeding, the first of these issues has been foreclosed by prior litigation between the same parties. Yankee Aromic Electric Co. (Yankee Nuclear Power Station), CLI 96 7,43 NRC 235,258-67 (1996).*
sufficient to indicate that a genuine issue of material fact or law exists." 54 Fed. Reg. at 170.
Also overruled by the 1989 amendments to $ 2.714 was the "temative" diera of Hounon Power &
Light Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB 565,10 NRC 521,524 (1979), to the effect that a prospective intervenor had the right to reply to responses to proposed contentions.
ALAB-565 was written at a time when, as the Commission acknowledged, $ 2.714 did not expressly address how proposed contentions were to be responded to; that subject is expressly addressed now j 2.714(c), which omits to provide any right of reply.
'The decommissioning cost estimate in this proceeding is the same as the one involved in CLI 96 7, and the funding mechanism relied upon here is the same as that relied upon in that case. On the facts i
before it there, the Commission concluded that the circumstances eliminated " virtually all remaining risk" that the costs would not be paid (43 NRC at 267), a demonstration that transcends the required r
" reasonable assurance."
I l
I
a na. a. I m FUm me a un;
~ 7.t u ~
J W s
Specifically not within the scope of an LTP approval proceedingis any contention relating to " spent fuel (including storage, management and removal),"5 any contention to the effect that the site release criterion values are to be applied on any basis other than the " average member of the critical group" basis stated in the regulation and defined in NUREG/CR-5512, and any contention that the site release criteria should be other than those specified in 10 C.F.R. $ 20.1402 (which " prescribes the pertinent standards for termination of the Yankee Rowe reactor license, and is not subject to challenge or litigation in an adjudication.") Yankee Atomic Electric Co. (Yankee Nuclear I
I Power Station), CLI-98 21,48 NRC
, _ n.14 (Oct. 23,1998).
l l
II.
CAN's Proffered Contentions.
CAN's FAII.URE TO INCWDE A " SPEC:FIC STATEMENT OF THE ISSUE OF LAW OR FACT TO BE RAISED OR CONTROVERTED" l
l FOR EACH CONTENTION l
l i
CAN has not put forth its proposed contentions in any readily cognizable form.
Contrary to the explicit command of 10 C.F.R. 5 2.714(b)(2) that "[e]ach contention must consist of a specific statement of the issue of law or fact to be raised or l
controverted," CAN's proffering-which is not even stated in terms of " contentions" l
but rather in terms of "CAN's Identification Of Subject Matter Aspects Of The Proceeding On Amending The Part 50 License For YR To Include The Proposed LTP"'-consists oflong. winded, multi subject exegeses loosely organized under entirely I
unhelpful titles such as " Site Release."
This is not a matter of mere form. Beside being a blatant failure to submit what l
the Commission's regulations require (alone a sufficient basis for excluding all of l
CAN's proffered " contentions"), CAN's failure to comply with the mies makes the
'CLI.98 21, slip opinion at 28. Likewise precluded is any contention relating to "the general ISFSI license currently available to Yankee Atomic pursuant to 10 C.P.R. 5 72 210* and "any possible future i
application by Yankee Atomic for a site. specific license to establish and operate an ISFSI pursuant to 10 C.F.R. 5 72.40. Id.
'CAN Contentions at 2. Though the quoted words do not appear to make sense, they have been j
accurately transcribed.
i 4-l
m i.
U. i m
- uara exro s as:
h.te:c r M effort required to respond (by Yankee and the Staff) and to evaluate (by this Board) at least severalfold more difficult and burdensome. Thus,instead of responding to CAN's proposed " specific statement of the issue of law or fact to be raised or controverted,"
Yankee, the Staff, and ultimately this Board will each be required to sift through CAN's pleading seeking to formulate the contentions for CAN that CAN should have formulated for itself. This is not fair to Yankee (or the Staff), in part because it places the Board in the awkward position of having simultaneously to be advocate for CAN and judge of the adequacy of CAN's advocacy.
Likewise CAN hu defaulted on its obligations to provide a concise statement of the alleged facts on which it relies, or a reference to the specific portions of the application that the petitioner disputes and the supporting reasons for each dispute.
(One of the things that the 1989 amendments were designed to pretermit was the pleading of contentions on the basis of "I simply don't believe it" or "there may be something else.")
CAN may seek to be excused from following the rules because it has chosen to be represented in this proceeding by a layman. Any such excuse would distend the Rules of Practice, for while pro se petitioners will be held to a less rigid standard of pleading, a totally deficient petition such as CAN has now proffered will be rejected.
Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Units 1 and 2),
ALAB-136, 6 AEC 487 (1973); Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542,546 (1980). See also Kansas Gas
& Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-279,1 NRC 559,576-77 (1975). After all, the " specific statement of the issue of law or fact to be raised or controverted" requirement is neither esoteric nor novel, and a pro se litigant is obliged to become familiar with the Rules of Practice, Pennsylvania Power & Light Co. (Susque-hanna steam Electric Station, Units 1 and 2), ALAB-563,10 NRC 449,450 n.1 (1979).
As the Commission has recently reiterated in this very proceeding, even apro se litigant "is still expected to comply with our basic procedural rules." Yankee Atomic Electric l
5 i
1
JAN 20 1999 3:06rM
.Rof b 6 MAi NC.2828
- f. 35
~
~l Cornpany (Yankee Nuclear Power Station), CLI 98-21, NRC (1998) (slip opinion at 11).'
In short, CAN has entirely ignored a plain and easily comprehended requirement of long-standing in a way that substantially impedes the functioning of the hearing process. For this reason, this Board should reject CAN's filing in its entirety on this i
ground.
CONTENTION A(1),
i l
Staternent of the Proposed Contention Site Release Yankee's Response:
As best one can tell, the crux of this contention is contained in this passage:
"YAEC states that site release criteria is 15 mrcm/ year above background l
i radiation. However, YAEC's calculations [ sic] in actuality compute to between 43 and 87m/r per year [ sic) above background on site. NRC requirement for 15 mrem per year above background posits a family farm with a garden. YAEC's calculations for 15 mrem / year above background l
require the family farm to be inhabited no more than 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> a day by an adult male."
f CAN Contentions at 2. This is precisely-indeed, in h.ec verba-the contention that l
CAN urged as one of its bases for " standing" in this proceeding' and that the l
'Indeed, any claim by CAN that its po se status should romehow exempt it or partially exempt it from the heightened requirements of the 1989 amendments to 5 2.714 should be rejected, as one of the l
reuens for the amendments to 5 2.714 was to eliminate the circumstance where, as often occurred under l
the pre-1989 rules, "[pJro se litigants' contentions were held to even lower standards of clarity and precision.... The result of this pre-1989 approach was that the actual hearings were delayed by months and even years of prehearing conferences, negotiations and rulings on motions for summary I
disposition... This problem drove the Commission to revise its rules by promulgating the current version of section 2.714, which was designed 'to raise the threshold for the admission of contentions.'"
c l
Yankee A romic Elerrrie Compny (Yankee Nuclear Power Station), CLI.96-7,43 NRC 235,248 n.7 (1998),
guoring 54 Fed. Reg. at 33,168.
'See CAN's April 6,1998, supplemental filing, which asserted that "(Yankeeys calculations in actuality compute to between 43 and 87 m/t per year [ sic] above background on the site." CAN #6/98 filing at 22. CAN arrives at these values by simplistically multiplying 5 and to pR/h by 8766, thus:
6-
(
nm tu.I m nytta mn 5 um A dcte r.
n 1
l Commission ruled is not litigable in this proceeding. Yankee Atomic Electric Company (Yankee Nuclear Power Station), CLI-98 21,,__ NRC _ (1998) (slip opinion at 25 n.14).' It must therefore be rejected by this Board.
While the foregoing should be sufficient to dispose of Contention A(1), two 1
funher observations should be made. First, CAN's challenge throughout la uor to l
i 4
4 5 x 10 x 8,766 - 43.83 x10 ;
4 4
10x10 x 8,766 - 87.66x 10.
Down even to the typo (and the rounding error), this is precisely the contention that the Commis-sion held in CLI-98-21 was not admissible.
'CAN's failure, then and now, is its unwillingness to recognize that the 25 (or 15) mrem /yr site relcue criterion is not applied to every member of the hypothesized population that might ever venture onto the site, but rather is applied to the average member of the critical population. The very fact that the value applies to the average member of this population necessarily implies that some members of the I
population might receive a higher dose (and, of course, some would receive less).
Likewise,while CAN disavows any reliance on the
- worst cue," both then and now it is clear that it has calculated its posited values based on bounding conditions, i.e.,8,766 hours0.00887 days <br />0.213 hours <br />0.00127 weeks <br />2.91463e-4 months <br /> per year exposure at the stated dose rate. " Bounding case" and " worst case" are synonymous.
While in general it is not necessary to defend the wisdom of Commission regulations before its adjudicatoxy boards, two additional observations may be in order. First, the Commission's site release criteria already account for the fact that some members of the critical population group may receive more than the average exposure. As the Commission made clear in promdgating the rule, the actual standard for human health is not 25 mrem /yr, but 100 mrem /yr., the widely accepted (both in the United States and internationally) standard for public exposures. See 62 Fed. Reg. 39,058 (1997). Applying a lower value to the average member of the critical group insures a margin of conservatism that accounts for off-normal situations, including exposure to multiple sources. In short, if (as CAN apparently desires) one were to retain the lower 25 mrem /yr value while applying it to a more rigorous screen (such as most highly exposed member of the critical population group), this would render the 100 miem/yr standard meaningless. Second, as the Commission also observed. the decision tree on standards setting is not one-sided; there are high social costs to be paid fror; setting a standard that is so low that the drain it l
imposes on finite resources is not worth the benefit (if any) ob sined. Aa the Commission observed,"the appropriate course of action should not result in net public or e.vW.catal harm from a cleanup, and it is not clear that it is beneficial if resources are spent in a manner prohibitive in relation to other benefits which could be achieved, or if a licensee is put into a financial position where it cannot continue to perform the cleanup safely." Id at 39,071. At the same time, the Commission accepted that the benefits of reducing exposures below the levels implicit in the site release criteria are debatable at best:
"The health effects resuhing from even a dose of 1 mSv (100 mrem) are uncertain. The BEIR Committee stated in its 1990 repon (BEIR V) that ' Studies cf populations chronically exposed to low-level radiation, such as those residing in regions of elevated natural background' radiation, have not shown consistent or conclusive evidence of an associated increase in the risk of cancer.'" /d. at 39,062. In short, the l
Commission,in legislating the site release criterion, has already rejected the arguments that CAN now l
presses on this Board. This Board is not the forum, however, by which to seek legislative revision of Commission promulgations. i
TATTO iTfi~Tiii?M ETh 5 aA:
.K c:c:
i l
l Yankee's implementation of the approved methodology for applying the 25 (or 15) mrem /yr standard. Rather, CAN's lament is that the standard is not sufficient. Such a challenge to the Commission's regulations does not frame an admissible contention.
CIl98 21, slip opinion at 25 n.14; 10 C.F.R. $ 2.758. Second, CAN's dramatic presentation must be leavened by this realization: the stark and dire consequences that CAN predicts are predicted to be caused by residual levels of radiation that are not only below prevailing background levels of radiation, but entirely masked by annual variations in background radiation." In a sentence, even if one could hypothetically decree that the residual contribution of YNPS were to be zero, one could never posit and never measure any diminution in the exposure of the population in the area. At the levels of which CAN complains (fractions of the background and variation in the background), nothing this Board could decree could provide CAN with relief, and, therefore, there is nothing to litigate.
Finally, like NECNP, CAN seeks to relate the computation of TEDEs to the average member of the critical group to the measurement for screening purposes of direct S-y readings, which is neither the prescribed or the proposed methodology for determining whether the Commission's site release criteria have been met.
See f
" Response of Yankee Atomic Electric Company to NECNP Proposed Contentions,"
at 8-9. (The direct 6-7 readings to which CAN refers are used as a screen to detect areas that may warrant further investigation, and they do not necessarily exclude all background (i.e., non-plant-related) sources of radiation. The fallacious " calculation" is thus CAN's fallacious calculation, not Yankee's.)
CONTENTION A(2).
Statement of the Proposed Contention:
Soil Remediation.
""To provide some penpective on the conservatism of considering dose criteria in the range of 0.15425 mSv/y (15 25 mrem /y),it should be noted that, as described in the Final GEIS (NUREG 1496) i prepared in support of this rulemaking, these levels are small when compared to the average level of l
natural background radiation in the United States (about 3 mSv/y (300 mrem /y)) and the variation of this natural background across the United States." 62 Fed. Reg. 39,058,39,062 Guly 21,1997).
.g.
M 7Clns j: Lira
- ~ r n o a r. A :
.w. c c :
r a:
i(-
Yankee's Response:
As best one can tell, this collection of observations seems to raise three issues:
That as a matter of law Yankee is obliged to modify its calculations of on site soils remediation in order somehow to account for alleged offsite historical releases. How CAN contends the calculation is supposed to be modified is neither stated nor obvious (and canriot, of course, be found in the missing materials required under 10 C.F.R. $ 2.14(b)(2)(ii) and (iii)).
That as a matter of law, Yankee is obliged to modify its "mean life" value based on speculation that actual radionuclide distribution might be different from what was assumed in arriving at that value. Once again, how the value is supposed to be modified is neither stated nor obvious.
l That the Commission should impose upon Yankee some vague notion of j
civil liability to third parties in the future.
That the Commission should perform or commission some studies to be performed by someone other than Yankee.
As for the ultimate and penultimate points, it suffices to observe (i) that the Commission has no authority to impose civil liability on a licensee and (ii), while Yatzkee has no objection to the Commission performing any studies the Commission might deem cost-justified, it cannot deny LTP approval on a want of studies that are not required to have been done (and which CAN insists be done by someone other than Yankee).
As for the first two points:
The contention that calculations of on site remediation should be modified to account for offrire releases is both a non sequitur and does not state a valid basis for disapproving the LTP The amount of remediation that is required by the site release criteria is the amount that is required to reduce the site to the point where it meets those criteria. By definition, whether this value eventually works out to be 1 cubic 9
.M j : u l d.
Ero a niu a na r
Ji yard or a million cubic yards, it will be the same without regard to what levels of radioactivity may have been released offsite in years past.
With respect to CAN's uncareful assertion that "[ Yankee] states it will use a mean life of 26 years to bound the actual radionuclide distribution," CAN Contentions at 7, CAN appears to have made the same error as NECNP. See Yankee's Response to NECNP's Contentions at 2122 & n.24. The Final Status Survey Plan does not use "mean half lives (' it uses a mean life, a term that CAN appears not to understand."
(Moreover, the Survey Plan does not use this value "to bound the actual radionuclide distribution on the site," but rather to calculate the total dose effect of the radionuclides on the site.) See Yankee's Response to NECNP's Contentions at 21-22 & n.24. CAN has offered no basis for its implied assertion that calculating the TEDE using a longer time span would produce a different result, a critical requirement of demonstrating a basis for admitting this (or any) contention.
J CONTENTION A(3).
Statement of the Proposed Contention:
NRC Oversight and abdiention of authority.
Yankee's Response:
In consistent fashion, this " contention"is a collection of amorphous observations.
Here, however, it can be determined with relatively little effort that the entire contention is substantively inadmissible.
First, the underlying premise of the contention is stated by CAN to be:
"The proposed site release plan for YNPS does not adequatef describe f
YAEC's planned decommittinning arrivitie.s orits c.nntroh and limits on procedures and equipmem, in violation of to C.F.R. $ 50.52 ('a)."
l "The mean life of an isotope is the period of time that captures all of the dose impact of the isotope when multiplied by the dose rate at time zero.
10
f JAN.JU.1939 J:UlrM Auru 6 cA:
hV.4c40
- r. C ~ ~ ~ ~
i CAN Contentions at 15. However,10 C.F.R. $ 50.82(b) is not applicable to YNPS."
Second, each'of the elements of this collection of observations relates to the on-site management or off site disposal of spent nuclear fuel (or other GTCC). As the Commission has held, this topic is categorically beyond the scope of this proceeding.
CLI-98-21, slip opinion at 1517:
"[W]e agree fully with the Board that these two petitioners' major concern-spent fuel management-is offlimits in this proceeding, which is confined to a review of the matters specified in 10 C.F.R. 5 50.82(a)(9) and (10), such as the plans for site remediation and for the final radiation survey....
"We find unpersuasive petitioners' arguments for considering spent fuel storage questions in the context of LTP approval. Contrary to petitioners' view, the requirement in 10 C.F.R. $ 72.218(b) (that an application for termination of a Part 50 liceme include a description of how spent fuel stored under the general license will be removed from the reactor site) is unrelated to the requirement in section 50.82(a)(9) for submission of an LTP. Section 72.218(b) requires Yankee Atomic, at the c
time it files its license termination request, to submit a description of l
how spent fuel will be removed. By contrast, section 50.82(a)(9) specifically provides that the LTP may be filed in advance of the submission of the license termination request.
"Likewise, CAN and NECNP errin concluding that the scope of this proceeding is determined by the Commission's regulation requiring the submission of a plan for management and removal of the spent fuel (10 C.F.R. 5 50.54(bb))-for that regulation nowhere mentions the LTP.
Rather, the scope of the LTP application (and therefore the scope of this proceeding) is defined solely by the terms of 10 C.F.R. $ 50.82(a)(10), as read in light of the filing requirements of 10 C.F.R. $ 50.82(a)(9)(ii)(A)-
(G). Importantly, sections 50.82(a)(9) and (10) do not refer to spent fuel management. This omissionin our decommissioning rule was intention-al....
"We thus conclude that, quite apart from the LTP, Yankee Atomic already possesses the necessary license authority for both cortinued use of the spent fuel pool pursuant to its existing Part 50 license and the movement of spent fuel from the pool to NRC-approved dru casks in an on-site ISFSI pursuant to 10 C.F.R. $ 72.210, if and een Yankee Atomic decides that such movement shculd be made. ('#e also agree "10 C.F.R. $ 50.62(b) by its terms is applicable only to the decor trnis oning of r:on power reactors.
t 11 -
[
JD.ZU.1999 J : U' rP.
aurn a vaM u 4c40 r si o
with Yankee Atomic that it has authority to move heavy loads over the l
spent fuel pool pursuant to Amendment 149 to its Part 50 POL-a con.
clusion petitioners do not contest.) Yankee Atomic's existing licensing authority and the Commission's current regulatory structure thus combine to place the issue of spent fuel management beyond the scope of this proceeding."
CAN, which nowhere addresses how its present proposals for litigation could be admitted in view of the Commission's rulings-and which, in fact, nowhere adverts even to the existence of CLI 98-21-cannot disregard the Commission's rulings so cavalierly.
CONTENTION A(4).
Statement of the Proposed Contention:
Security.
Yankee's Response:
That of which Cl complains in this section appears to be that Yankee has expressed its intention ssibly to invoke its powers under 10 C.F.R. $ 72.210 some day in the future.
This is more spent fuel management. As the Commission has already observed,
" Yankee Atomic already possesses the necessary license authority for both continued use of the spent fud pool pursuant to its existing Part 50 license and the movement of spent fuel from the pool to NRC-approved dry casks in an on site ISFSI pursuant to 10 C.F.R. $ 72.210, if and when Yankee Atomic decides that such movement should be made." CLI-98-21, loc. cit. supra. Whether or not Yankee should do so is not an issue that is before this Board in this proceeding. "[I]f the Board does grant CAN and NECNP a hearing,... [ijt will consider neither... the generalISFSIlicense currently available to Yankee Atomic pursuant to 10 C.F.R. $ 72.210, nor... any possible future application by Yankee Atomic for a site-specific license to establish and operate an ISFSI pursuant to 10 C.F.R. $ 72.40." CLI-99 21, slip opinion at 28.
- I I
i l
l
JAN. 20.1999 TTBYR surn & EIY
.s v. a u r, u CONTENUON A(5).
Statement of the Proposed Contention:
Monetary Security Yankee's Response:
In this section, CAN seems to make two observations, quite unrelated to one another.
The first is that if Yankee employs the general license granted under 10 C.F.R.
$ 72.210, the Commission will be out some $4.8 million in regulatory fees. Prescinding entirely from the basis for such calculations, it is neither clear nor obvious what relief CAN seeks, what relief this Board might grant," and what standing CAN has to act as the Commission's Cincinnatus at the Fiscal Bridge. In any event, this class of contention has been explicitly excluded from the scope of this proceeding by the Commission. CL198 21, slip opinion at 28.
The second lament is that Yankee may have underestimated in some respect the ultimate cost of decommissioning, including the costs of spent fuel management. Once again, prescinding from the basis for this assertion, it does not arise to a litigable contention now for the same reason that the Commission held it did not arise to a litigable contention earlieri
" Third, regarding Contention C, we considered [CAN's] argument that YAEC's updated cost estimate was not reasonable. We found that the
' essential purpose' of the estimate requirement 'is to provide ' reasonable assurance' of adequate funding for decommissioning.' 43 NRC at 9. We therefore concluded that, to receive relief, Petitioners would need to demonstrate 'not only that the enimate is in error but that there is not reasonable assurance that the amount will be paid.' Id. 'Thus, a conten-tion that a licensee's estimate is not
- reasonable," standir.g alone, would l
not be sufficient in and of itself because the potential relief would be the formalistic redraft of the plan with a new. estimate.' Id."
"fince nothing shon of repealing 5 72.210 would appear to address the peint.
.n.
m.(U.fSSS J : U 5 tv.
- r. urn n.w
~
AU.icir ru Yankee Atomic Electric Company (Yankee Nuclear Power Station), CU-96-7,43 NRC 235, 245 (1996), quoting Yankee Atomic Electric Company (Yankee Nuclear Power l
Station), CU-96-1,43 NRC 1 (1996).
l l
Here, CAN does not couple any criticism of the Yankee cost estimate with an assertion that the cost will not be paid. This, no doubt, is not mere oversight, but rather CAN's recognition that, in the case of this licensee, that showing cannot be l
made, as the Commission has also previously ruled in two respects.
First, insofar as CAN contends the cost estimate is burdened by uncertainties regarding the ultimate disposal of high level waste, the Commission has held.
"We cannot agree with this argument. The factors cited by [CAN), of course, represent uncenainties. However, that fact does not, without more, make the plan unsound. A decommissioning plan by its very nature deals with a myriad of uncertainties, and our regulations cannot be construed to require the plan to do the impossible, i.e., predict the future with precision."
CU-96-7,43 NRC at 257.
Second, in the case of this plant, the Commission has already ruled, in a proceeding to which CAN was a party, that the requisite " reasonable assurance" has been demonstrated by the Power Contracts that require the several utilities that own Yankee to pay the full costs of decommissioning, whatever they turn out to be. CU-96-7, 43 NRC at 258-67.
- [T]he ' Pow r Contracts' on which the Licensee is relying are not mere unsupponed pre Mses, but firm contractual agreements, and offer solid evidence that the necessary funds will be available when needed. A recent decision by the Federal Energy Regulaton Commission, as we shall describe below, has further confirmed the very high level of assurance that the funds for decommissioning the plant will be forthcom-ing. Again, the standard to be applied is whether there is ' reasonable assurance' of adequate funding, not, as [CAN] suggest[s), whether that assurance is ' ironclad.' Appeal at 31.... Accordingly, Petitioners have failed to meet the burden of coming forward that the NRC's contention rule requires.
14 -
l
S T 'lD 19S9 j:USrM Groauw av. coco r.
w 43 NRC at 260. Indeed, in the context of decommissioning funding for YNPS, the Commission has already tuled, in a matter to which CAN (and NECNP) were parties, that the Power Contract circumstances have eliminated " virtually all remaining risk" that the costs would not be paid. Op. cit. note 4, rupra.
Now, as then, and for precisely the same reason, CAN's " cost estimate" contention raises no litigable issue of fact and is, therefore, inadmissible.
CONTENDON A(6).
Statement of the Proposed Contention:
Waste issues.
Yankee's Response:
In this section, CAN asserts that an Environmental Impact Statement ("EIS")
under the National Environmental Policy Act ("NEPA") is required as a condition to approval of the LTP "due to the existence of both documented and undocumented contamination on the Yankee Rowe site." According to CAN, "[t]he study is necessary to determine the sources, extent and the potential for plumes of contamination (including tritium) under the surface of the soil if the site is to be released for unrestricted use." CAN Contentions at 20-21. This does not state an admissible con-tention.
I l
First, CAN fails to understand what an EIS is. An EIS is not a document that an agency is required to prepare whenever it encounters real or imagined contamination.
Rather, an EIS is a document that is related to federal governmental decisionmaking, and it is required if, and only if, a proposed governmental action-here, the approval of the LTP-amounts to a " major Federal action [] significantly affecting the quality of l
the human environment." NEPA 5102(2)(C). CAN does not contend that approval of the LTP, the implementation of which will necessarily reduce the environmental impact of the existing site, qualifies.
Moreover, the Commission has already published a Final Generic EIS for i
decommissioning, which includes all of the potential effects to which CAN refers and 15 -
l
[
QGFTE J:Unk nro 6 nin h.ccc:
- r. a which is sufficient to meet the Commission's NEPA obligations for any site that meets the site release criteria for unrestricted access:
"The Generic Environmental Impact Statement (GEIS) prepared by the Commission on this rulemaking evaluates the environmental impacts associated with the remediation of several types of NRC-licensed facilities l
to a range of residual radioactivity levels. The Commission believes that the generic analysis will encompass the impacts that will occur in most Commission decisions to decommission an individual site where the licensee proposes to release the site for unrestricted use. Therefore, the Commission plans to rely on the GEIS to satisfy its obligations under the National Environmental Policy Act regarding individual decommission-ing decisions that meet the 0.25 mSv/y (25 mrem /y) criterion for unrestricted use.
However, the Commission will still initiate an environmental assessment regarding any particular site, for which a I
categorical exclusion is not applicable, to determine if the generic analysis l
encompasses the range of environmental impacts at that particular site."
62 Fed. Reg. 39,058,38,086 (July 21,1997).
l A contention to the effect that a supplement is required of a GEIS must make two f
showings: (i) that the federal action is one that would require an EIS in its own right, l
and (ii) that for some specific reason, the conclusions of the GEIS are not applicable to f
the particular licensing action in question.
CAN has not attempted any such showing."
Indeed, where an EIS has been prepared (and where the contention is that a supplement is required), the only admissible contention is not that the application should be denied or a supplemental EIS is required, but, rather, that the EIS must be l
modified in some specific way. A Licensing Board lacks jurisdiction to determine that l
a supplement to an EIS is required and to order the Staff to prepare and circulate a supplement. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units i
I "On its face, CAN alleges only that an EIS is required because there are or may be contaminants on the site. That fact, though, is true of every nuclear power plant site in decommissioning were it otherwise, deconda;cs.r.i,wculd not b: rcquired. Thus, if CAN's vague and speculative pleadingwere sufficient, decommissioning would amount to a categorical inclusion within the meaning of 10 C.F.R.
$ 51.20. The Commission, however, has concluded to the contrary and has not included decommission-ing in the $ 51.20 list.
16 -
l l
l l
I
D 2 and 3), LBP-83 36,18 NRC 45,48-49 (1983), citing New England Power Co. (NEP, Units 1 and 2), LBP 78 9,7 NRC 271 (1978). Rather, upon the admission of a suf-ficiently specific contention (which CAN hasn't even attempted) that the EIS is deficient, the record of the hearing itself constitutes a modification of the EIS. New England Coalition v. NRC, 582 F.2d 87,93 94 (1st Cir.1978); Citizensfor Safe Power
- v. NRC,524 F.2d 1291,1294 & n.5 (D.C. Cir.1975); Ecology Acrion v. AEC,492 F.2d 998,1000-02 (2d Cir.1974)).
CONTENTION A(7).
Statement of the Proposed Contention:
Investigation ofIllegal Handling of Rad Waste Yankee's Response:
In this rather confusing section, CAN seems to contend that because contaminated materials were or "may" have been stored on site, an EIS is required. As noted above, this is a non sequitur the fact that there may be contamination on site is why decommissioning and site survey are required. To say that the fact or suspicion of contamination equates with the necessity of an EIS is simply to distort the NEPA statute and Commission's regulations (neither of which CAN cites) beyond all recognition.
CONTENTION A(8).
Statement of the Proposed Contention:
Waste Contamination Investigation: Groundwater, Soil, and River Sediment Contamination.
Yankee's Response:
In this section, CAN appears to contend that, because there may have been historical releases of tritium, it is not sufficient to the LTP to propose a survey of existing levels of tritium, but rather a study should be required of what historicallevels of tritium may have been. How this relates to the Commission's site release criteria
.p.
JAK WTHT TTlin2 EITTTRAi
.u a a r.
- i is not spelled out by CAN-a daunting task, since by definition rnitigation of existing levels so as to comply with the site release criteria is all that is required of the LTP.
NECNP Contentions In addition to submitting its own contentions, CAN "me too's" the proffered contentions of NECNP. CAN Contentions at 1.n CAN does not purpon to offer any additional support to the " adopted" contentions, and therefore no additional response is required.
""In addition, CAN accepts the contentions advanced by the New England Coalition on Nuclear Pollution (NECNP) in this matter; CAN signs on to NECNP's Contentions and attaches them and includes them as ours."
"In the event that one or more of NECNP's contentions is admitted, and this Board concludes that CAN should be granted intervenor status on the basis of NECNP's efforts, to which CAN contributed nothing. NECNP and CAN should be consolidated for purposes of such contention (s) under 10 C.F.R.
! 2.715a, with NECNP designated the lead intervenor. See Statement ofPolicy on Conduct ofLicensing Proceedings,13 NRC 452,455 (1981):
"In accordan:e with 10 CFR 2.7152, interveners should be consolidated and a lead intervenor designated who has 'substantially the same interest that may be affected by the proceedings and who raise {s] substantially the same ques.
tions....... [S) ingle, lead intervenors should be designated to present evidence, to conduct cross. examination. to submit briefs, and to propose findings of fact, conclusions oilaw, and argument. Where such consolidation has taken place, those functions should not be performed by other intervenors except upon a showing of prejudice to such other intervenors' interest or upon a showing to the satisfaction of the board that the record would otherwise be incomplete."
(Emphasis added.) Where one intervenor has simply " adopted" the proposed contentions of another intervenor, having made no independent effen to support such a contention,it is manifest that adepting intervenor's interest in the adopted contention is exactly the same as that of the proponent intervenor.
See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-83 29A,17 NRC 1121,1129 30 (1983). (Note that in this case, the " adopting" intervenor had in fact propounded and supported what the Board concluded was the same contention; LBP-83-29A does not stand for the proposition that a formulaic "me, too, whatever he says" is sufficient to satisfy the requirements of 10 C.F.R. 5 2.714.)
18 -
1
Ja cu.uvs a;tura nuro o u m 3v.idza
- r. 40 l*
l I
I Conclusion.
l l
For the foregoing reasons, none of CAN's proffered " contentions" is admissible; none should be admitted; and CAN's petition for leave to intervene should be denied.
l-
.Respectf yp i
i
\\
/ _y -
l l
Thomas G. Dignan, Jr.
R.10. Gad m Ropes & Gray l
One International Place Boston, Massachusetts 02110 (617) 951-7000 i
Dated: January 20,1999, l
1 i
I s
s i
s 19 -
Mi hurn & Jr.iu
.% B h ' r s:
)
thi I
ENMs k, hEMb Ehid[r#l'I[$N4hE$;i[$p @ N N M p i NY'E Mif fC AT' EMERY^k* %' M'.$Q y>
h M f4fagg7 g W M[ C b
- DO Wr
.$N WG,$d l
1, Robert K. Gad m, one of the attorneys for Yankee Atomic Electric Company, do hereby certify that on January 20,1999,I served the within pleading in this matter by Urugd StgS ZUes Mail nd,
l-also where indicated by an asterisk, by facsimile transmission) as follows:
ndMkf%ggu%gww&
fpM:khiENkfd3hEjdh.g%
w
%fW:cnd n%[dhb;yw$$${ygfjylg; t%%%(@kp?g5 - W
'M%
gryc.
- ~-
M*TWdM5 EN Bb$'W6Q5M4 -:.
ii$
e AD.
hMkMbIkN(bsh!NNhhhb$NMhbhkNN$N!N[hb$5Y$$$$N5hIb v
J The Hon. Thomas D. Murphy The Hon. Charles Bechhoefer Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S.N.R.C.
U.S.N.R.C.
Washington, D.C. 20555 Washington, D.C. 20555 FAX: 301-415 5599 FAX: 301-415 5599 J
The Hon. Dr. Thomas S. Elleman Administrative Judge 704 Davidson Street Raleigh, North Carolina 27609 FAX: 919-762 7975 I$fEk!h h
hhhhh hb hINhk J
Ms. Deborah B. Katz Jonathan M. Block, Esquire Citizens Awareness Network,Inc.
Post Office Box 566 Post Office Box 3023 Putney, VT 05346 Fax: 602 387-2646 Charlemont, MA 01339 Fax: 413 339-8766 Atromeyfor NECNP On BektfofCAN d
Mr. Samuel H. Lovejoy Ann P. Hodgdon, Esquire Marian L Zobler, Esquire c/o Franklin Regional Council of Governments Office of the General Counsel 425 Main Street U. S. Nucleu Regulatory Commission Greenfield, MA 01301 Fax: 413-774 3169 Washington, D.C. 20555 FAX: 301415 3725 On BehalfofERCOG Aucmeysfor the NRC Sraf h;ht bhhfhhhh hh hkkkh.. Ikkhh; $
h!hk b
J Office of the Secretary U. S. Nuclear Regulatory Commission W ing enrD C. 20555&Q/9
- 301415-1672
.j.
/ >~ -
m R. K. Gad a
/