CLI-88-07, NRC Staff Response to Intervenors Motions to Reopen Record & Admit late-filed Decommissioning Contentions.* Motions Should Be Denied & Stay Imposed by Commission in CLI-88-07 Lifted
| ML20206J608 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/16/1988 |
| From: | Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20206J610 | List: |
| References | |
| CON-#488-7501 CLI-88-07, CLI-88-7, OL-1, NUDOCS 8811290051 | |
| Download: ML20206J608 (39) | |
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% NOV 16 P7:53 UNITED STATES OF AMERICA NUCLEAR REGULATOR ( COMMISSION O rrnct c ,, . , lv,q, bocnE1.,':Liu.
bh 4C" BEFORE THE C0m !SS10N In the Matter of 1
- h Docket Mos. 50-443 OL-01
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PUBLIC SERVICE COMPANY ,T l 50-444 OL-01 NEW HAMPSHIRE, et al, ? .On-site Emergency Planning o ,
1 and Safety Issues (SeelrookStation,Unitsl'and2) J u i l
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NRC STAFF RESPONSE TO IllTERVEh0RS' MOTIONS TO REOPEN !
PECORD AND ADMIT LATE-FILEA DECOMMISSIONING CONTFliTIONS l 1
Gregory Alan Berry Counsel for NRC Sta'f November 16, 19PE
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..jF UNITED STATES OF AMERICA NUCLEAR REGULATORY Com !SSION BEFORE THE COM ISSION In the Matter of 1 h Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF l 50-444 OL-01 NEW HAMPSHIRE, et d . On-site Emergency Planning (SeabrookStation, Units 1and2)
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and Safety Issues
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il' NRC STAFF RESPCNSE TO !!1TEP.VENORS' HOTIONS TO REOPEN PECORD AND ADMIT LATE-FILED DECOMMISSIONING CONTEtiTIONS 1
C egory Alan Perry C.tunsel for hRC Sta'f Novensber 16,19PE
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TABLE OF CONTENTS PAGE :
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1 I
i !!. PRECIS OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 2
!!!. BACKGROUND . . . . . . . . . . . . . . . . . . . . , , . . . 3 s ;
IV. 01500S$10N . . . . . . . . . . . . . . . . . . . . . . . . . . 5 :
A. Lega i S ta n da rd s . . . . . . . . . . . . . . . . . . . . . 5
- 8. None Of Intervenors' Motions Satisfies !
All Of The Reepening(Standards Set ForthIn 10 C.F.R. 6 2.734 7 a) . . . . . . . . .i i
- 1. Applicants' Plan Provides Reasonable Assurance That Funds k'ill Be Available -
to Decenmission The Facility After Low l Power In the Event Full Power l Authorization Is Not Granted . . . . . . . . . . . . 8 {
- 2. NECNP's late-Filed Contentions . . . . . . . . . . . 17
- a. NECNP Contention 1. . . . . . . . . . . . . . . 17 i b. NECNP Contention 2. . . . . . . . . . . . . . . 20 ,
i c. NECNP Contention 3. . . . . . . . . . . . . . . 22 )
- 3. SAPL's late-Filed Contentions. . . . . . . . . . . . 23
- a. SAPL Contention 1 . . . . . . . . . . . . . . . 23 :
- b. SAPL Contention 2 . . . . . . . . . . . . . . . 25 ;
- c. SAPL Contention 3 . . . . . . . . . . . . . . . 28 ;
4 Town of Hampton's late-Filed Contentions . . . . . . 20 I L
- 5. The Attorney General's Late-Filed Contentions. . . . 30 f
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 35 l
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UNITED ST ATES OF AM.7RIC A NU CLE A R REG UL ATOR Y CO.1 MISSION BEFORE THE COMMISSIM In the Matter of Decket Nos. 50-443 OL-01
, PUBLIC SERVICE COMPANY OF 50-444 OL-01 N E W H A M PS HIR E , el al. On-site Emergency Planning and Safety Issues
. (Seabrook Station, Units 1 and 2) )
NRC STAFF RESPONSE TO INTERVENORS' MOTIONS TO REOPEN RECORD AND ADMIT LATE-FILED DECOMMISSIONING CONTENTIONS INTRODUCTION On November 2,1988, the New England Coalition On Nuclear Pollutio$
4 (NECNP), the Sercoast Anti-Pollution League (SAPL), the Town of Hampton, and the Massachusetts Attorney General each filed a motion to reopen the record in the on-site emergency planning and safety issues phase of this proceeding to admit their late-filtd contentions. II Each of the contentions challenges the adequacy of Applicants' plan for decomissioning Unit 1 of the Seabrook Station after low pow;r operation
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1/ See NECNP Contentions On Applicants' Decommissioning Plan, Motion For Tray Of Low Power Operation. And Motion To Reopen The Record (November 2,1988) (hereinafter "NECNP Motion"); SAPL's Con * ' ions On Applicants' Response In Response To NRC Order Ct.1-d8-07
= (November 2, 1988) (hereinafter "SAPL Notion"); Town Of Harpton's Contentions On Applicants' Plan To Fund Decomissioning Costs Of Seabrook Station (November 2, 1988) (hereinaf ter "Town Of Hampton Motion"); Motion Of Massachusetts Attorney General Jares M. Shannon Under 10 C.F.R. I 2.734 To Pespen The Record To Consider Evidence Concerning The Joint Applicants' Decomissioning Plan for The Seabrook Nucleer Power Station And To Admit The Attached late Filed Contentions Concerning Said Decomissioning Plan (November 2,1988)
(hereinafter "Attorney General Motion"),
in the event authorization to operate at full power is not granted. The intervenors' contentions also allege that Applicants either have underestimated the costs of implementing the plan or have failed to i provide reasonable assurance that the funds needed to implenent the plan will be available. The Staff believes that each of the contentions sheuld be rejected and the motions to reopen should be denied.
. PRECIS OF ARGUPENT In CLI-88-01 the Comission afforded intervenors the opportunity to file motions to reopen the record and admit late-filed contentions cFallenging Applicants' plan "to fund decomissioning of the [Seabrook) plant in the event a full power license is not granted." CLI-88 07, slip.
op, at 2. To prevail upon such motions, intervenors rust raise timely and significant safety and environmental questions concerning the ability of applicants to obtain the funds needed to decomission the J
Seabrook Station after low power. See 10 C.F.R. I 2.734(a). None of
- intervenors' contentions makes this showing.
The plan submitted by Applicants in response to CLI-88-07 provides
! reasonable assurance that funds would be available to decomission the
) Seabrook Station after Icv power operation if a full power authorizaticr.
, is r.ot tranted. As explaired in the affidavit attached to this response, ample funds are available for their purpose. CLI-88-07 did not require
- compliance with the Comission's general decomissioning regulations at this time in regard to low power operation. Even if those regulatiens had 4
applicability to Applicants, the intervenors have misread them to require complete technical ard financial decomissioning plans at this time rather than in acccrd with the time periods provided in those regulations. See i
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10C.F.R.Il50.33(k)(2),50.75(b)and50.75(f). Thus, the motions proper contentions have not been submitted and the motions to reopen the record should be denied.
PACXGROUND In Public Service Company of New Hampshire (Seabrook Station, Units 1 4
and 2), CLI-88-07, 28 NRC ,_ (September 22, 1988), the Comission ruled
. that authorization to operate the Seabrook Staticn at low power should be withheld until such time as Applicants "provide reasonable assurance that adequate funds will be available so that safe decomissioning wi'il be reasonably assured in the event that low pcwer operation has occurred and a full pewer license is not granted for Seabrook Unit 1." CLI-88-07, slip cp. at 2. Tiie Comission afforded Appifcants 30 days to submit "adequate documentation of their plan and appropriate comitments under that plan to provide reasonable assurance that adequate funding for decomissioning will be available in the event a full power license is not granted for Seabrook Unit 1." M.at3.
On October 20, 1968, Applicants filed with the Cortlission and the parties a submissien entitled "The Plan In Response To NRC Order CLI-CS-07." See letter from Edward A. Brown to NRC Comissierers and Enclosures (October 20, 1088). According to Applicants, the plcn submitted "describ[esl the steps ner.essary to return Seabrook Unit 1 to
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unrestricted use" efter the facility has operated at low power, "estimate [s] the costs of irrplementing that plan." and "provid[es) reasonable assurance that adequate funding to cover those cost, will b.
available in the event that tuthoritation to proceed beyond 5! power is not granted for Seabrcok Unit 1. M.at1. #pplicants estimate that it -
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would take approximately 52 months to complete the decomissioning process and that it would cost about $21 million. M. at 3-7 These funds would [
be contributed by the Applicants on a pro rata basis out of their general ,
I operating revenues. M.at8. According to Applicants, the estimated $21 i
, million cost of implementing the decomissioning plan "equates to 0.42% of y
the Joint Owners' gross revenues in 1987 and 0.64% of the Joint Owners' j I. net operating revenue for the single year 1987[.]" M. As further l asstfance of their ability to fund the estimated $21 million cost of f
implementing the plan, Applicants have advised the Comission of their i willingness to establish and fully fund "a separate and segregated :
' Pre-operation Decomissioning Account' in the control of a Disbursing (
Agent for the sole purpose of defraying expenditures incurred in [
l implementing the plan." [d.
On November 2, 1988, NECNP, SAPL, the Town of Hampton and the Massachusetts Attorney General filed motions to reopen the record in order to admit late-filed cententions challenging the adequacy of the pian submitted by Applicants. NECNP filed three contentions, SAPL filed three contentions, and a single contention was filed by both the Town of Harpton and the Massachusetts Attorney General. Each of these la te-filed contentinns can be grouped into one of three categorits. The first category includes those cententions challenging the adequacy of
- Applicants' plan to decomission the facility after low power in the event full power authorization is not granted,, The second category covers those contentions challenging the Applicants' estimates of the costs of deconvaissioning the facility. The third group includes those contentiens challengir.g the availability te /pplicants of the funds neeced to
i implement the plan. As will be shown in the fo' lowing sections ci this l response, none of these contentions raises a pubite health and safety or environmental issue tigr.ificant enough to warrant a reopening of the ,
record in the on-site portion of the proceeding.
DISCUSSION 4
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A. Legal Ltandards 1
. In NRC proceedings, motions to reopen a record are governed by ,
10 C.F.R. I 2.734 Paragraph (a) of this regulation provides:
l (a) A motion to reopen a closed record to consider additional evidence will nct be granted unless the following criteria are satisfied:
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(1) The motion rust be timely, except that an [
exceptionally grave issue may be considered in the i discretion of the presiding officer even if untimely .
presented.
l (2) The motion must address 6 significant safety or l envircnmental issue.
(3) The motion must demonstrate that a materially i different result would be or would beve been likely c had the newly proffered evidence been considered i initially.
These requirements are conjunctive; in other words, the proponent of f.
the motion must demonstrate that each of the applicable standards is satisfied. The "most important of these criteria is whether the motien raises a significant safety or environmental issue." Philadelphia Electric [
Company (Limerick Generating Station, Units 1 and 2), ALAB-834, 23 NRC 263, 264 (1986). In addition, a motion to reopen which relates to a late-filed contention trust also reet the standards governing late-filed contentions set forth in 10 C.F.R. $ ?.714(a)(1). See 10 C.F.R. 1 2.734(d). peopening a closed record is, as the C(mnissier has noted, en "extraordinary action" and thus requires the movant to bear a "heavy
f burden." See M Fed. Reg. 19535, 19538 (May 30, 1986); accord Kansas Gas i t
, and Electric Company (Wolf Creek G(nerating Stttion, Unit 1), ALAB-462,
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7NRC320,328(1978). The reason a motion to reopen is not to be granted lightly is because of the public interest in ensuring that "once a record has been closed ard all timely raised issues have been resolved, finality l will attach to the hearing process." 51 Fed. Reg. at 19539. [
. In passing upon a motion to reopen a board is to consider the moving b papers and any opposing filings. Vermont Yankee Nuclear Power Corporation (Verront Yankee Nuclear Power Station) ALAB-138, 6 AEC 520, 523 (1973).
! Filings in opposition, of course s may be accompanied by "affidavits or i other evidence." 10 C.F.R. I 2.730(c). If the affidavits or other evidence filed in opposition to the motion to reopen indicate that no :
I significant safety or environmental issue is presented or that a different p result would not have obtained if tne movant's evidence had been i considered initially, the motion to reopen must be denied. Vertnont i Yankee, supra, 6 AEC at 523. E f I
f l 2/ In such a case:
1 4 The ' record' (in the broad sense) will necessarily have been !
supplanted by the introduction of affidavits, letters or other i materials acccmpanying the trotion and the responses thereto, ,
'* The ' hearing record,' however, has not been reopened. '
! Typically, in this situation, the result will be desionated a i denial of the ' motion to reopen the record,' even though that l
- description of the action tak' i does not precisely reflect what
- transpired. For clarity, the order denying the motien should l state that the reccrd has been supplemented and that the denial
! of the motion is based on the absence of a triable issue.
! t i Id. at 523-24; see e.g., Philadelphia Electric Company (t. iit,eric k l l Generating Station, TiUts I and U. CLI-86-0, 23 NRC 130, 133-34 (19PE) !
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(FOOTNOTE CONTINUED ON NEXT PAGE) !
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B. None Of Intervenors' Motier.3 Satisfies All Of The Reopening Standards Set Forth in 10 C.F.R. I 2.734(a)
In CLI-88-07 the Comission provided that "within ten (10) days after service of applicants' filing the parties must file, with the Comission, any motions and late-filed contentions based on applicants'
, plan to fund the decomissioning of the plant in the event that a full power license is not granted." CLI-8P-07, supra, slip op. at 3. There is appear to be no grounds for the Staff to contest the timeliness of intervenors' motions. (Applicants' filing is dated October 20, 1988, and according to the certificate of service was served upon intervenors by express mail. The certificate of service, however, is undated and unsigned.)
As noted earlier, the Appeal Feard has observed the "most important" of the criteria coverning a motion to reopen is by far "whether the motion raises a significant safety or environmental issue." Limerick, supra, ALAB-834, 23 NRC at 264. None of the motions to reopen satisfy this test, In this connection, it should be emphasized that the Comission's order diree.ted Applicants to provide a oasis for finding reasonabic assurance that funds will be available to decomission the facility after low power in the event a full power license was not granted. See CLI-88-07, gupra, slip op, at 2-3. That order also afforded intervenors the opportunity to t .
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE (motics, to reopen denied based on Staff analysis pre 9ared after close of evidentiary record); public Service Company of New Hampshire (Seabrook Station, Units 1 ard 21. ALAB-879, 25 NRC 410 (1987) (denial of motion to recpen record upheld on basis of additional tests performed after close of evidentiary record).
) :
i file contentions which challenge Applicants' funding plan on the ground that the plan does not provide reasonable assurance that the funds needed I to deccmission the facility after low power will be available. Id. at 3. !
Thus, to satisfy the most important of the reopening criteria, !
intervenors' contentions must raise a significant question concerning the ability of Applicants to obtain the funds needed to decomission the :
. facility after low power. In view of Applicants' ability to implement a l
l decomissioning plan costing substantially more than the estimated 121.1 j
' million, none of intervenors' contentions can make this showing. t l Accordingly, intervenors' motions to reopen must be denied.
- 1. Applicants' Submission Provides Reasonable Assurance That !
Funds Will Be Available to Decomission The Facility After
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Low Power In The Event Full Power Authori;ation Is Not Granted !
l As noted earlier, intervenors' late-filed contentions questien: l 1 l (1) the adequacy of Applicants' proposal for decomissioning the facility l i
j after low power (ii) the reasonableness of the $21 million cost estimated ,
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c by helicants to irplement the plan; and (iii) the availability to l 1 :
Applicants of the funds needed to implement the plan. To appreciate why i none of these contentiens raises a significant public health and safety or ;
2 envirc, tental issue, it is useful at this juncture for the Staf f to explain why the plan submitted by Applicants satisfies the conditions I f* imposed by the Comission in CLI-88-07.
CLI-88-07 was issued by the Comission in response to ALAB-895, 2/ f In ALAB-895, the Appeal Board held that the Massachusetts Atterrey j f
3/ Public Service Company of New Hampshire (Seabrook Station, Units 1 !
ant ?). ALAE-695, 28 NRC 7 (1958).
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General's petition for waiver of the Comission's financial cualifMation rules set forth the prima facie case required by 10 C.F.R. I 2.T58 and certified the matter to the Comission for a final determinatior, as to whether Applicants should be required to demonstrate their financial qualification to operate the facility safely at low power. ALAB-895, 28 NRC at 26. The Appeal Board expressly declined to extend its l
! . certification to erbrace the question whether Applicants also stould be l
i required to demonstrate their financial qualification to decommission the facility. M. at 25, n.66. M The Appeal Board's action was in accord with the stated policy of the Comission. M., citing 47 Fed. Reg. at 13751; CLI-88-07, supra, slip op. at 2.
In CLI-88-07, the Comission took note of the "the unique and unusual circumstancesofthiscase(.)" Id. d The "unique and unusual circumstance" to which the Comission alluded is the filing of a petition in bankruptcy by the lead co-applicant, public Service Company of New Hampshire (PSNH).
The bankruptcy of a major electric utility company is an occurrence apparently without precedent since the Great Depression. In view of these circumstances, the Comission determined that before Icw power operation would be authorized. Arplicants must first "provide reasonable assurer.r.e 4/ The Appeal Board stated:
Decomissioning, however, is an action that is nomally applicable only after e facility has reached the end of its useful life. This being the case, ar,y consideration at this point of the applicants' purperted lack of funds to decomission Seabrook after lew-power operation secr.ingly r'.'ns afoul of the Comission's prehibition on speculating about the outcome of the operating licensing proceeding.
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that adequate funds will be available so that safe decoa !ssioning will be j reasonably assured in the event that low power operation has occurred and l a full power license is not granted for Seabrook Unit 1." M. l The Comission observed that "Applicanh have not yet provided such assurance." M. For this reason, the Comission stated that "the first !
step in resolution of this question of assurance of adequate funding for !
- decomissioning is to request applicants to provide the basis on which a finding of the necessary "easonable assurance, as stated above, might be i made." 3. The plan submitted by Applicants is intended to provide the j i
i basis upon which the Comission can conclude that there is reasonable ;
assurance that funds will be available to de.: omission the facility in the
'l event a full power license is not granted. [
Poreover, it is apparent from several of the cententiers filed by intervenors that they fail to appreciate fully the importance of this point. For example, each of the intervenors dwells at substantial length i on perceived flaws in Applicants' plan. These alleged flaws range from a l
- failure to assess the iational and international situation regarding 5
! radioactive waste disposal capacity to a failure to document the basis for a 5 assuring that the requirerents of the fuelear Non. Proliferation Act of j ,
1978 can be met to a failure to use supportable assu9tions regarding the 1 !
i~ issuance of the necessary approval by the cognizant agencies of the l
! F Government. The comon thread running through these clairs is that ;
j Applicants' plan is deficient when evaluated in light of the requirements set forth in the Corrnission's decomissioning regulations. $/ Further, i
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these claims are wide of the mark because (1) contrary to intervenars'
- assertions, the requirements of sections 50.33(k), 50.75, and 50.82 of the Consission's decommissioning regulations are not applicable to Applicants
- at this time and (2) the Comission did not require or conter. plate that J
i Applicants' plan corply with all of those requirements.
L Although intervenors are correct that the requirecnts set forth in
, the decomissioning regulations recently adopted by the Comission apply to Applicants, the holders of an operating license to load fuel, see e.g.
10 C.F.R. Il 50.33(k), 50.75, they are incorrect to the extent they insist that Applicants must fulfill all of the requirements set forth in those regulations at the present time. Specifically, pursuant to section 50.33(k)(2), Applicants are not required to submit the decorrissioning report described in 10 C.F.R. I 50.75(b) before July 26, 1990, rnore than eighteen months from now. Section 50.33(k)(2) states in pertinent part:
I 50.33 Contents of application; general information.
Each application shall state:
(k)(2) On or fore July 26, 1990, each holder of an operating license for a production or utilitation facility in effect or July 27, 1990, shall submit inferration in the form of a report as described in i 50.75 of this part, indicating how reasonable assurance will be provided that funds will be available to decormission the facility.
10 C.F.R. I 50.33(k)(2). Further, urder C.F.R. I 50.75(f), Applicants are not required to submit the preliminary decomissioning plan and an assessment of the major technical factors that could affect decomissioning until about five years prior to the projected end of operation.
Applicants are also subject to the recuirements of section 50.82, which provides ir pertinent part:
12 5 50.82. Application for termination of license.
(a) Any licensee may apply to the Comission for authority to surrender a license voluntari',y and to decomission the facility. For a facility that permanently ceases operation after July 27, 1988, this application must be rade within two years following permanent cessation of operations, and in no case later than one year prior to the expiration of the operating license. Each application for termination of license
. must be accompanied, or preceded, by a proposed decomissioning plan.
. 10 C.F.R. I 50.82(a). Thus, under current regulations. Applicants have nearly two years to file the decomissioning report prescribed in 10 C.F.R. 650.75(b), until about five years prior to the end of operations to submit the prelininary decomissioning plan prescribed in 10 C.F.R. 150.75(f), and two years following permanent cessation of operations to file a proposed decomissioning plan. For these reasons, intervenors are incorrect in suggesting that the plan submitted by Applicants in response to the Comission's order rust be evaluated against the substantive requirements contained in the Comission's decorrissioning regulations.
Nor did the Comission require that the plan submitted by Applicants in response to its ordt-r satisfy all of the substantive requirements contained in the decomissioning regulations. As noted earlier, the focus of CL!.88-07 is upon the question whether in light of PSNH's current financial difficulties, there is reasonable assurance that Applicarts will
= have accers to the funds necessary to decomission the facility in the event a full power license is not granted. Given that the regulations prceulgated by the Comission provide a licensee two years to suteit a decomissioning funding report under 10 C.F.P. 1 50.75(b) and substantially more than tve years to sulcit a proposed decomissioning
plan under section 50.75, it is implausible to suggest that the Comission intended to irpose upon Applicants the obligation to submit within 30 days a final decomissioning plan and final decomi:,sioning funding comitrr.ents which meet all regulatory requirements. Plainly it did not. Rather, the "plan" which the Comission requested Applicents to provide is a plan which will serve to "provide a basis on which a finding of' the necessary
, reaserable assurance (regarding Applicants' financial qualification to decomission the facility) might be made." CLI-88-07, slip op, at 2. N The situation here is analogous to the one addressed by the Comission in CLI-87-2, CLI-67-3, and CLI-87-13. U In CLI-87-2, the Comission declined to affirrr an Appeal Board decision which held that the submission of an emergercy plan for the entire emergency planning zone is not a condition precedent to the issuance of a low power license. 25 NRC 4
at 268. The Comission comended the Appeal Board for its careful analysis of the question but decided as a matter of policy that "in the 4
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The Comission's order is replete with references tc the need for Applicants to provide reasonable a:surance that funds will be 1 available to decomission the facility. See CLI-88-07, slip op, at
- 2-3 ("since the funds recuired to decomission safely af ter low power has occurred would appear to be substantially to e than the funds i
required to conduct low power testing . . ., we have given initial consideratinn to this issue"; Applicants must "provide reasonable assurance that adecuate funds will be available so that safe decomissioning will be reasonably assured"; Applicants are to a provide "adequate docurMntation of their plan . . . to provide reasonable assurance that adequate funding for decomissioning will be available") (emphasis added).
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7/ Public Service Company of New Hampshire (Seabrook Station, Units 1 J and 2), CLI-87-2, 25 NRC 267 (1967); public Service Cor.pany of New Harpshire (Seabrook Statiori, Units 1 a r.d 2 ) , CLI-87-3, 26 NRC 875
] (1987); Public Service Company of New Hampshire (Seabrook Station, j Units 1 and 2), CLI-57-13, 26 NRC 400 (1957).
special circumstances of this case," such a plan should be submitted. Id.
at 270. The Comission stated that the "filing of an offsite plan makes possible at least a sunrary review . . . to detemine whether adequate emergency planning is at least in the realm of the possible." M.at271.
In CLI-87-3, the Comissior, stressed that for a meaningful sumary review to take place, the utility plan must be a "bone fide" one. 25 NRC at 879.
j . In CLI-87-13, the Comission found that the plan submitted by applicants to be bora fide even though it did not include all the infonnation needed to make a final determination regardin] the adequacy of the plan. In this
- regard, the Comission stated that it was not essential "to evaluate every detail of the proposed plan" to find the plan to be bona fide and in the realm of the possible, noting that such an evaluation "will be made in the full power proceedings." 26 NRC at 405.
The same considerations are applicable to the plan subraitted here by Applicants, it is not essential at this stage to evaluate every detail of the plan proposed by Applicants to decomission the facility in the event authurization to operate at full power is not granted. N Rather, it is I
sufficient for present purposes that Applicarts' plan contains encoch information te assess whether: (1) the means proposed to decomission the 1
facility af ter Inw power appear to be reasonable; (2) the amount of estimated funding needed to implement the plan is reasonable; and
- (3) there is reasonable t.ssurance that Applicants can obtain the funding required to implement the plan if the need to do so arises. As explained 8/ Such an evaluation, bewaver, will be made in connection with the Comission's review of any decomissier.ing plan required to be filed under the Comission's decorrissioning regulations.
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in the affidavit attached to this response E, the Staff has concluded t
that Applicants' plan is reasonable, as is the estimated cost of implementing it. The Staff also has concluded that there is reasonable I assurance Applicants can obtain the funding needed to implement the plan f even if the actual cost of implementation exceeds Applicants' $21.1 million estimate by as much as $35 million.
. Moreover, it is apparent from several of the contentions filed by intervenors that they fail to appreciate fully the importance of this ;
point. For example, each of the intervenors dwells at substantial length !
on perceived flaws in Applicants' plan. These alleged flaws range from a failure to assess the national and international situation regarding radioactive waste disposal capacity to a failure to document the basis for assuming that the requirements of the Nuclear Non-Proliferation Act of l 1978 can be met to a failure to use supportable assumptions regarding the !
issuance of the recessary approval by the cognizant agencies of the Government. The comon thread running through these claims is that .
Applicants' plan is deficient when evaluated in light of the recuirements set forth in the Comission's decomissioning ragulations. E Further, ;
I these claims are wide of the mark because (1) contrary to intervenors' j assertions,therequirementsofsections50.33(k),50.75,and50.82ofthe Comission's decomissioning regulations are not applicable to Applicants f
i 9/ See Affidavit of Janes C. Petersen, Peter B. Erickson, and Laurence f T.~ Kopp In Response To Interverors' Late-Filed Decomissioning (November 14, (hereirafter "Staff Affidavit"), (
Contentions 1988) i 10/ See generally "General Requirements For Decomissioning Nuclear Facilities," 53 Fed. Reg. 24018 (June 27, 1988). ,
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i at this time and (2) the Comission did not require or contemplate that Applicants' plan comply with all of those requirements.
, Although intervenors are correct that the requirements set forth in 1
i the decomissioning regulations recently adopted by the Comission apply to Applicants, the holders of an operating licenses to load fuel, see e.g.
! 10 C.F.R. Il 50.33(k), 50.75, they are incorrect to the extent they insist
. that Applicants rust fulfill all of t', requirements set forth in those regulations at the present time. Specifically, pursuant to section 50.33(k)(2), Applicants are not required to submit the decomissioning j report described in 10 C.F.R. I 50.75(b) before July 26, 1930, more than i eighteen months from now. Section 50.33(k)(2) states in pertinent part:
i 50.33 Contents of application; general infomation, d
Each application shall state:
l (k)(2) On or before July 26, 1990, each holder of an operating license for a produe. tion or utili:ation facility in effect on l
July 27, 1990, shall submit infomation in the form of a report as described in i 50.75 of this part, indicating how reasonable assurance will be provided that funds will be available to j
decomission the facility.
10 C.F.R. I 50.33(Ir)(2). Further,underC.F.R.I50.75(f).Applicantsare l
I not rer,uired to submit the prelirainary decemnissioning plan and an i
assesstent of the rajor technical factors that could affect
', decomissioning until about five years prior to the pro,iected end of I operation.
l Applicants are also subject to the requirerents of section 50.82, which provides in pertinent part:
i ! 50.82. Application for terminatien of license.
)
(a) Any licensee ray apply to the Comission for authority tn surrender e license voluntarily arc to decorris sion the facility. For a facility that perranently ceases operation
E i
l l after July 27, !?88, this application rust be made within two years following permanent cersation of operations, and in no 1 case later than one year prior to the opiration of the l operating license. Each application for termination of license !
must be accorpanied, or preceded, by a proposed decomissioning -
plan. >
I
'. 10 C.F.R. I 50.82(a). Thus, under current regulations, Applicants have i l
nearly two years to file the decomisuoning report prescribed in *
- 10 C.F.R. I 50.75(b), until about five years prior to the end of l operations to submit the preliminary decomissioning plan prescribed in 10 l C.F.R. 150.75(f), and two years following perr.anent cessation of 1
operations to file a proposed decomissioning plan. For these reasons, f
- t
- intervenors are incorrect in suggesting that the plan submitted by [
i j Applicants in respense to the Comission's order must be evaluated against !
the substantive requirerents contained in the Comission's decomissioning j
} regulations. t
, t
! Against this background, the Staff now addresses the contentions !
l l filed by intervenors and explains why rene of them raises a sipr.ificant public health and safety or environmental issue. l t
- 2. NECNP's late-Filed Contentions l i
j a. NECNP Contention 1 l 1 .
]( NECNP Contentien I states: l t
I Applicarts' decomissioning schedule is unrealistic, and fails !
!* to assess the situatien with regard to radioactive waste i j disposal, as required by the decomissioning rule. Moreover. l given the lack of comitted disposal capacity for Seabrook's -
i radioactive wastes, Applicants' election of the DECON option
! (removal and transportation offsite of reactor part and fuel) is
- inappropriate, ,
i !
j *'EChP Mottor. at 3.
l
< r i
i i
! l i
)' l L__ )
NECNP's contention is based upon a faulty premise: that the plan subritted by Applicants in response to CLI-88-07 must comply in all respects with the Comission's decomissioning regulations. As explained in PartB(1) above, however, Clf-88-07 imposes no such requirement.
Rather, in that order the Comission required only that Applicants provide a basis upon which the Comission could find that there is reasonable
, assurance that funds will be available to decomission the facility after low power in the event a full power license is nnt granted. CLI-88-02, supra, slip op, at 2-3. For this reason, NECNP's claim that Applicants' plan is fatally flawed because it "fails to assess the situatien with regard to radioactive waste disposal" capacity lacks merit and safety or environmental significance. The plan subritted by Applicants satisfies the requirerents inposed by the Cemission in CLI-88-07. See Staff Affidavit at 11 A7-12. E The gravamen of basis (a) this contention is that Applicants' plan fails to address to NECNP's satisfaction "the costs involved in shipping reactor fuel to France, and in shipping reprocessed fuel and reprocessing byproducts back to Seabrook." NECNP Motion at 8. The flaw in this contention ard its basis is that it presupposes that CLI-88 07 required Applicants to submit a plan that complied in all resrects with the decomissioning rules applicable to operating reactors. This is, as
+
explained above, an erroneous premise.
-11/ Footnote 1 to 10 C.F.R. I 50.75 (c) states: "Meunts are based on activities related to the cefinition of 'Decomission' in i 50.2 of this part and do not include the cost of removal and disposal of (FOOTNOTE CONTINUED ON NEXT PAGE)
Additionally, hECNP places undue reliance on the possibility that the spent fuel generated at the Seabrook Station may be shipped to France for disposal. As Applicants nade clear in the October 28, 1988 supplement to the plan, shipping the spent fuel abroad was one of a number of optior,s considered by them for the purpose of estirating the cost of s
decomissioning the f acility af ter low power. Letter from E'dward A. Brown
, to NRC, supra, at 2 (October 28,1988). Other feasible options, such as selling the fuel to other domestic utilities, were not used to estinate the cost of decomissioning the facility af ter low power because shipping the fuel overseas would entail the longest period of storing fuel onsite.
B. In short, the "overseas shipment" option was used by Applicants as the worst case scenario for estimating the cost of decomissioning the facility af ter low power. Thus, no contention baseo on a premise that fuel will be shipped abroad can be admitted.
A less costly ano core likely alternative is for Applicants te sell the spent f uel ge9erated during lw power operation to other licensees which operate hestinghouse fueled reactors. Mr. Erickson anc Laurence l
Kopp, who is a nuclear engineer for the NRC Staff, explain why this is e l feasible cption. See Staff Affidavit at i A17-18. As Mr. Aopp notes, this fuel is ccepatible for use in other Westinghouse fueled reacters.
M. at 1 A17. Further, this spent fuel can be stored in the spent fuel
+ pool of the transferee until such tine thtt it is needed for use. M.
(FOOTNOTE CCNTlhulD FF.CM PREVIOUS PAGE spent fuel or cf nonradioactive structures and caterials beyond that necessary to terminate the license."
l l
Subpart (b) of NECNP Contention 1 deals with the availability of low-level radioactive waste disposal facilities. As is more fully explained by Peter Erickson, the Staff's expert in decomissioning matters, the decomissioning proposals put forward by Applicants in their report are reascuable. Staff Affidavit at 1 A14. As Mr. Erickson also observes, the amount of radioactive waste generated during low power
. operations will be relatively small and easily can be accoivodated by existing waste disposal facilities. M. Mr. Erickson also explains why, contrary to NECNP's assertion, it is not inappropriate for Applicants to elect to use the DEC0H option. It is Mr. Erickson's expert opinion that
" t. DECON option is acceptable" since it represents represents "a logical way to rernove the spent fuel from the [Seabrook] site for reuse by another licensee." B.at5A16.
NECNP's motion to reopen the record to adnit late-filed Contention 1 does not raise a significant safety or erivironmental issue. Thc notion, therefore, should be denied.
- b. NECLP Contention 2 NECNP Contention 2 states:
Applicants have underestitated the costs of decotraissioning Seabrook, because the estimated costs do not incluce packing and transportation of spent fuel and spent fuel reprocessing byproducts,, post processing storage of spent fuel products, or long-tern onsite storage of contaminate reactor parts.
- NEChr Motion at (,
A recent evaluation of the Applicants' estirete of the costs to trpienent the plan was concutted at the Staff's request by Richard 1.
Smith of Battelle Pacific horttwest Laboratories. As reflected in the atta chr.ent to the Staff's afficavit, t . 5nith attests to the
reasonableness of Applicants' estimate. See Staff Affidavit at 1 A10, and attached notarizec letter from Richard I. Smith to Peter B. Erick:on (hovember 9,1988) (hereinaf ter "Smith Notarized Letter"). In reaching this conclusion, Mr. Smith evaluated Applicants' ana'e/ sis of neutron activation of the reactnr vessel and internals, the potential '
contamination of the primary system, the proposed schedules and times, the
. manpower allocated, and waste disposal costs. Smith Notarized Letter at 1. Nr. Smith also evaluated the activation of the reactor vessel and i internals by comparison with NUREG/CR-0130, a previous study that he hao helped prepare for the NRC, Lc. Although Mr. Snith concludes that l Applicants underestimated the activation, it is his opinion that the higher dose rates that may be produced would not have a significant inpact ,
on the estinated costs because all cutting and handling operations of the reactor vessel and internals would have to be done underwater in either l ca',e. M. at 2. He concludes that Applicantr,' assumption that all of the systens external to the reactor vessel would be releasable 15 reasonable.
Even if there is some contaminaticn of a few components, however, these parts could be cecontaninated at a co:t in the range of $1 nillion to 02 i million. Ld. at 2-3. In ..is evaluation of the estimated transport and waste disiosal costs, ttr. Snith further concludes that Applicants may have overestimated those costs by as suuch as $28 per cubic foot. M. at 2. l
- In addition, much of the basis of LECNP Contention 2 is an attack on l the recently adopted provisicos of 10 C.F.R. I 50.75(c) and n.1. hEChr ;
gives no reasons why the Commission should change the policy set out therein in considering the Applicant's sutnission pursuant to CLI-88-07, ho reason is gisen why the prcvisions of 10 C.F.R. 1 50.75 for the i
L
! - 22 -
assessment of disposal sites will not be sufficient. Sec 53 Fed. Reg.
24040-41(1988).
NECNP's motiun to reopen the record to ,imit late-filed Contention 2 does not raise a significant safety or environmental issue. The motion, therefore, should be denied.
- c. NECNP Contention 3
, NECNP Contention 3 states:
Applicants have not demonstrated that adequate funds are aveilable for decomissioning, given inevitable delays in obtaining space in waste disposal facilities.
NECNP Motion at 8.
i According to the plan submitted by Applicants, decommissioning of the Seabrook Station af ter low power operation is estimated to take 52 anonths to complete. See Letter Fron Edward A. Brown to NRC Comissioners, supra, r at 2 (October 20, 1988). NECNP believes this estimate to be overly optimistic based upon its belief that there will be "inesitable delays due to the current unavailability of storage space for Opent fuel reprocessing I
byproducts," and challenges the adequacy of the plan ior its alleged failure to consider the costs of such delays. NECNP Hotion at 8. There
! is neither raerit nor significance to this contention. In the attached affidavit, Mr. Erickson explains why the Staff considers the decommissioning schedule describec in Applicants' plan to be reasonable.
. Staff Affidavit at 1 A14 i Moreover, according to Mr. Erickson, even if NECNP were correct that
) pplicants' decomissioning schecule is overly optimistic, the added costs resulting frcr delays in shipping or storing spent fuel would rot be
- excessive. 14. E) way of cccparison, Hr. Erickson notes that the cost of
-~ -.' * --e-.--.=w--seg.- -w-=-*,.,we., -. -,em-ye---- +,-e-m-e -w->w m,,-----+m.--'--a-a--' w-*- * - - - - -
naintaining the La Crosse facility in a 5AFSTOR Nde with fuel on site is between $2.0 and $2.0 million per year. Ld. The cost of naintaining the {
Hunboldt Bay ljnit No. 3 in a SAFS10R mode is between $0.8 and $1.0 million per year. Ld . The cost of maintaining the Seabrook Station in a similar mode is i.ot reasonably expected to exceed these amounts. Ld . Applicants' financial resources are nore than tufficient to absorb any additional
. storage costs resultic.g from delays in removing the spent fuel generated during low power operation. S e Staff Afficavit at 1 All (Petersen).
NECNP's motion to reopnn the record to admit late-filed Contention 3 does not raise a significant safety or environmental issue. The motion, therefore, should be denied. b
- 3. SAPL's late-Filed Contentions
- a. SAPL Contention 1 SAPL Contention 1 states:
The Applicants have not provided adequate documentation of their plan or appropriate commitrents under that plan, as required by CL1-65-07 in that "The Plan in Response to CL1-BS 07" does not f ully docutent the reasonably anticipated necessary handling of irradiated fuel fron low power operation and does not provide appropriate financial ard institutional comitments for handling said irradiated fuel.
12/ NECNP also requests in passing that the Cc:nission ccntinue the stay of low power cperatier. irposed by CLI-88-07 pending a resolution on the merits of its late-filed decomissionirg contentions, hECNP NECNP's request should be denied. As explained in Potion at 2, 13.
this respense, none of NECNP's (or the other intervenors')
contentions raist.s e safety or environmer.tal issue of sufficient significance to warrant a reopening of tha record of the on site portion of this proceeding. The plan sutnitted by t.;plicant s provides a basis upon which the Cornission can find .easenable assurance that the funds reeded to deccrrission the f acility af ter low power operation will be available. Since the stay on low power operetion irresed by the Cctrission was predicated on the lac 6 of informtion upon which to base such a findir.s, ~see CL1-88-07, slip up. at C, the Cerrission should rew lif t the stay.
I
~ 24 -
(
l SAPL Motion at 6.
j As with NEChP's contentions SAPL Contention 1 is based upon the premise that the plan submitted by Applicants in response to CL1-88-07 ;
nost comply in all r9spects with the Cowtission's decommissioning [
+ regulations. As shown in Fart B(1) above, however, SAPL is mistaken in ;
this assurption. This is reason alone for the Comission to conclude that l SAPL's contention lacks merit and safety or environmental significance.
In any event, the means of disposing or irradiated fuel is adequately l documented in Applicants' proposed plan. See Staff Affidavit at 11 A1618 (Erickson, Kopp) and 1 A24 (Erickson). Further, there is no significance ,
to SAPL's concern that the considerations involved in shipping the spent fuel generated during low power operation to France are not fully documented. SAPL places undue relier.ce on the pcssibility that the spent i
fuel generated at the Seebrook Station may be shipped to France for disposal. As noted earlier, Applicants mace clear in the October 28, 1968 ;
supplecent to the plan that this option was only one of a nurter of i options considered by then for the purpose of in estimating the cost of decomissioning the f acility af ter low power, Letter f rora Edward A. Erown to NRC, supra, at 2 (October 28, 1988). Other feasible options, such as j l
', selling the fuel to other dotestic utilities, were not used to estimate [
the cost of deccrr.issioning the f acility af ter low power because shipping the fuel overseas weulu entail the longest period of storing fuel onsite l anc thus have the greatest potential foi tu.reasing the estinated cost of decorrissioning the f acility af ter low power. Id. A less expensive and nore likely alternative is to sell or transfer the fuel to ctner dorestic (
l licensees of f acilitit:s utilizing 'Je stinghou se fueled reacters. This !
i
+
25 alternative is, as Mr. Kopp agrees, a feasible alternatt... E.g. Stof f +
Affidavit at 1 A17. 1 SAPL's motbn to reopen the record to admit late-filed Contention 1 (
does not raise a significant safety or environmental issue. The motion, therefore, should be denied. l
- b. SAPL Contention 2
, SAPL Contentien 2 states:
The Applicants have riot provided "appropriate comitments" to fund the decommissioning plan, contrary to the requirererts of r CL1-88-07, e SAPL botion at 12.
5APL concedes that Applicants' plan will have provided reasonablo assurance that acequate furding to deccer.ission the facility af ter low powee "if the costs reesonably te be needed are appropriately estivated and prefunded[.)" 5AFL Motion at 13. In the preceding se t.t 'n of this ;
response, the Staff discussed the reasons why Applicants estis. ate of the
- cost of implecenting the plan is reasonable. See also Staff Affidavit at 1 A10 and Smith Letter, s m , passim. SAPL has provided no credible 1 evider.ce to the contrary.
SAPL is ircorrect to the extent it suggests that CL1-08 07 requires Applicants to "prefurd" the costs of implerenting their plan. The f Comission irposed no such requirteent. Moreover, even if section 50.75 ,
were applicable at this tina, prepayment is not mandated. Pursuart to sectic\ 50.75(e)(1), a licer.se may provide financial assurance of decorcissionir.g funding by prepaying, cr t'y establishing an external i sinkirg fur.d. or through a surety arraagerent. The functrg inforration i
provided in 1;plicariti' P an l wovic r ot satisfy the requirerents of section I i
i i
50.75(e)(1). In the preembic accompanying the decommissioning rule the Comission explicitly rejected internal sinking funds a; an adequate funding arrangement for assuring decommissioning funoing. However, the Cor.rnission stated its belief that it is important not to impose inordinate financial burdens on licensees and noted that the elimination of the internal funding option was not expected to impose such a burden for a
, number a reasons, one of whicn was that the Commission was providing a two year period before licensees had to provide financial assurance informa tion. It is not reasonable to believe that within three months from the issuance of the decomissioning rule, the Comission in CL1-88-07 reduced the time period for prcviding the demonstration of financial assurance called for in section 50.75(e)(1) from twu years to 30 days for Applicants.
It bears repeating tbst CLI-88-07 requires only that Applicants "provide reasonable assurance that adequate funds will be available so that safe decomnissioning vill be reasonably assured in the event that low power operation has occurred and a full power license is not granted for Seabrook Unit 1." CLI-88-07, slip cp. at 2. The Commission did not prescribe any particular nethod by which Applicants could sctisfy this requirement. The crucial consideration is whether the neans chosen provide reasonnble assurance that the "adequate funds will be available"
- so tht safe decomissioning will be reasonably assured. M. The Staff is persuaded that such reasonable assurance exists even if the actucl cost of implementing the plan, should it become necessary to do so, exceeds Applicants' $21.1 million estimate by as much as $35 million. See Staff Affidavit ct 55 A6. 8, 11-l'c (Petersen). For the period of tir.e until
financial arrangements satisfy ing section 50.75 are provided by Applicants, reliance on the operating revenues of the joint owners provides a reasonable degree of assurance that funds will be available for decommissioning af ter low power operation, if required. Staff Affidavit at 5 A25 (Petersen). E I As James Petersen, an f4RC Staff Senior Financial Policy Analyst,
, explains, the "funds needed to implement the Plan are to be provided from the operating revenues of each joint owner (Applicant) and, as with ali other project expenses, paid to the Project Account according to each joint owner's pro rata ownership share. El The joint owners' aggregate operating revenues in calendar year 1987 totaled approxinately $3.265 billion, which equates to an approximate n.onthly average of $272 million.
The estimated $21.1 million cost of inplementing the Plan is equivalent to 0.64 percent of the 'oint owners' aggregate operating revenues for the single year 1987." M. at 5 A6. Assuming a_rguendo that the actual cost of implementing the plan approximates $55 million, that cost still would be less han 2 percent of the joint owners' aggregate 1987 operating revenues. It should be noted, however, that because the Plan's cost is
-13/ If the Commission believes that segregation of funds for decermissioning would enhcnce assurance of adequate financing for deconvaissioning, Applicants have stated the, will, if required by the Concission, fund "a separate segregated ' Pre-operatiun Decommissioning Account.'"
-14/ These funding sources are highly reliable in that they are derived f rom each utility's system-wide operations. The funds are ultimately providf.d by the custorers of joint owners who purchase essential utility service on a certinuous basis. Ld. at i A8.
t projected to be spread over a 52 month period the actual monthly expenditures in fact'will be substantially less than this amount. Ld.
Mr. Petersen also points out that d'uring decommissioning sfter low power, total costs will be less than the current monthly costs of maintaining the facility. Ld . at 1 A6. This is br.ause personnel, reactor systems surveillance, maintenance, and emergency planning
. activities will be reduced significantly if a decision were made to decommission the facility after low power. Ld.
Finally, it should be noted that in spite of the circumstances citeo i
i by SAPL in support of this contention, Applicants have been providing full i
funding of current costs Tv an extended period of time. 3 For the I reasons discussed at length by Mr. Petersen, those circumstances do not l
l preclude a finaing of reasonable assurance that adequate funding will be available to decomission the Seabrook Station after lcw power operation shoulo it become necessary to do so. See [d. at 1 A12.
SAPL's motion to reopen the record to admit late-filed Contention 2 does not raise a significant safety cr environmental issue. The motion, therefore, should i be denied.
l
- c. SAPL Contention 3 SAPL Contention 3 states:
The initiation of low power testing at Seabrook in these unique circumstances and at this time would be contrary to the
>
- Comissiun's general policy of keeping radioactivity levels "as low as reasonably achievable" (ALARA) ano contrary to the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. I 4321 et seq.). That is because the ihitirtion of low power operation, without a probability of comercial operation within a tine frame reasonably close to the termination of low power testing, will result in the unnecessary prccuction of radioactivity and therefore will not keep radiation exposures as low as reasonably achievable. Further, no NEPA cost benefit belance has ever been struck in regard to a
f aci lity which does not have a demonstrated probability of achieving near term commercial operation.
f SAPL Motion at 20-21.
As a basis for reopening the record, the issue which SAPL Contention 3 raises is beyond the scope of that permitted by CLI-88-07 and therefore should be rejected summarily. Only contentions challenging the j*
adequacy of /.pplicants' ability to finance the decommissioning of the Seabrook Station after low power are permissible under the Commission's l order. See CLI-88-07, slip op. at 3. Contention 3 seeks to have the Commission deny Applicants permission to operate at low power even if, as is the case here, there is reasonable assurance that Applicants can 1
finance the sate decorraissioning of the facility after low power operation. The contention is improper and should be rejected.
4 Town of Hampton's Late-Filed Contention The Town of Hanpton's contention states:
Applicants' Plan f ails to include an asses. ment of the current situation with regard to disposal of high level and low level radioactive waste, fails to provide an assessment of other site specific factors which could affect decommissioning planning and cost, fails to reasonably assure that there is adequate and safe off-site disposal capacity for Applicants' radioactive waste generated through low power operation, fails to reasonately )
assure that adequate funding is available for safe storage of the waste on site, or for delayed decommissioning, fails to i, reasonably assure adequt.te funds are available for completion of I deconcissioning, or for necessary expenses to lawfully and safely terminate the licensc, and f ails to reasonably assure that the facility ano site will be suitable for release for l
- unrestricted use. A l
5 50.33(k), 50.75(a)pplicants' Plan therefore violates 10 C.F.R.
and (f), and 50.02.
l Town of Haupton Motion at 1-2.
For the reasons set forth in the preceding sections of this response, it is clear that the Town of Hampton's contention does not raise a significant safety or environmental issue. Thc Town's position is
accurately captured in the last ser : in its contention: "Applictnts' Plan therefore violates 10 C.F.R. 6 50.33(k), 50.75(a) and (f), and 50.82." ,l_d . It is a sufficient response to this contention to note again that CLI-88-07 did not mandate that Applicants submit a plan t::at complied with all the requirements set forth in the Commission's decomissioning regulations. See CL1-88-07, supra, at 2-3. In further response to the Town's contention, the Staff notes that the attached affidavit discusses i the claims made by the Town of Hampton and the other intervenors and explains why they do not preclude the Commission from finding that there i
is reasonable assurance that Applicants can obtain the funds needed to decommission safely the Seabrook Station af ter low power should the need to do so arise. See Staff Affidavit, passim. It is further noted that of the provisions cited by the Town of Hampton deal with the plan required to be filed five years before decommissioning begins, not with the report required prior to licensing. See M . 10 C.F.R. 6 50.75(f).
- 5. The Attorney Genercl's Late-Filed Contention The Attorney General's contention states:
A determination that there is reasonable assurance that adequate funds will be availabic to allow safe and timely cecomissioning of t h t. Seabrook fluclear Powar Station in the event that low power operation occurs but a full power license is not granted cannot be made fron the filing by the Joint Applicants in response to CLI-88-02.
Attorney General llotior., Attachment 1 at 1.
The clains made by the Attorney General in the bases supporting his contention are similar in all material respects to those nade by liECi;P, SAPL, and the Town of Hampton, in other words, the Attorney General allegs that Applicants' plan (1) does not comply with the Commission's decomissioning regulations in some respects; (2) uncerestiuates the costs
)
of decommissioning the facility af ter low power; and (?) is insufficient to provide reasenable assurance that the fends needed to decommission the facility after low power will be available for that purpose. Id_. at 1-5.
"Jhe Staff need only discuss these arguments briefly since all of them have been addressed earlier in this response as well as in the attached affidavit and have been shown to be without safety or" environmental
, significance.
Bases (a) and (b) of the Attorney General's contentica assert that the plan submitted by Applicants must comply with the requirements set forth in 10 C.F.R. il 50.33(k)(1) and 50.75. The Attorney General is incorrect. Section 50.33(k)(1) is inapplicable to Applicants in any case because by its terms it applies to "applicants for an operating license [.)" Applicants, however, already posses; an operating licuse to lead fuel. It is section 50.33(k)(2) -- which applies to "a holder of an operating license" -- which covers Applicants' situation. As explained earlier, the text of section 50.33(k)(2) makes clear that Applicants need not submit a decommissioning report until July 26, 1990. See 10 C.F.R. 6 50.33(k)(2). A preliminary decomraissioning plan need not be submitted until about five years prior to the projected end of operations. 10 C.F.R. 6 50.75(f). Noti.ing in CLI-88-07 indicates that the Commission intended to reduce the time Applicants have to fulfill these obligations to 30 cays.
In basis (c) of his contentior., the Attorney General alleges that Applicants have not sufficiently documented the bases for their estimate of the cest of decotroissioning the facility af ter low pcwer. The Attorney General questions the reasonableness of the $21.1 nillich estinate because
l I
this figure is substantially less than the estimated cost of decorivnissioning a f acility that has operated at full- power for the full l term of the license. This is not surprising. As explained earlier, ,
decommissioning the Seabrook Station af ter low power will be much less costly than the decommissioning of a facility af ter full power operation. ,
This is because low power operation will result in little, if any, ,
. contamination cf the primary system and only moderate activation of reactor vessel. Staff Affidavit at 1 A30; see also 53- Fed. Reg. 24018, 24027-28 (. lune 27, 1988). The bases for the estimated cost of deconuissioning the facility are documented in the plan submitted by f Applicants. That estimate has been esaluated by the Staff and found reasonabic. [d;andNotarizedSmith1.etter, supra,at2-3. <
l In basis (d) of his contention, the Attorney General alleges, without I i
factual support, that Applicants' cost estimates are prenised upon ;
unreasonable and unsupportable assumptions regarding the issuance of needed approvals by the Comission, the U.S. Department of Transportation, and other agencies of the Government. In the attached affidavit, the Staff explains why the Staff finds Applicants' estimate of the cost of decommissioring the facility af ter icw power reasonable. Ld . tioreover ,
- l. it should be noted that the Staff has found that there is ressor,able assurance that funds will be available to decommission the f acility af ter low power even if the actual cost of doing so exceeds the estimated cost by as much as $35 million. E.g. Staff Affidavit at 5 All ()etersen).
In bases (e) of his contention, the Attorney General al .eges that Applicants' cost estinate is ur.derstated because it assumes a 7 percent contingency factor whereas the industry average is 25 percent, fails to
l l
account fully for decomissioni,ig activities that must continue during the likely period that spent fuel is stored onsite, understates the duration of low power operation. Assuming these claims are true, they are not signifity 6. As noted above, the Staff has found that there is reasonable assurance that funds will be available to decommission the facility after
!. 1 low power even if the actual cost of doing so exceeds the estimated cost r
, , by as much as $35 million, which is more than 150% of the estimated cost.
See Staff Affidavit at i A30. l In basis (f) of his ' contention, the Attorney General criticizes Applicants for not irientifying the sites where the spent fuel generated -
during low power operation will be disposed and for not specifying the terms and conditions of such shipments. The Attorney General's criticism l is. not valid because the provisioni requiring a licensee to assess the waste disposal situation (10 C.F.R. 5 50.75(f)) are not applicable to the l
plan submitted by Applicants in response to CLI-88-07. See 10 C.F.R. 9 50.33(k)(2). Further, even if that regulation haa some applicability, the Commission stated that its definition of "decorrission" does not include the cost of removal a r.d disposal of spent fuel or of nonradioactive structures and materials beyond that necessary to terminate the license,10 C.F.R. 5 50.75(c), n.1.; see 53 Fed. Reg. 24021, 24031; see also 53 Fed. Reg, at 24040-41. There is no requirement for the a identification of waste disposal s'ites, when providing assurance that funds are available for decommissioning prior to the issuance of a license. Rather, the Commisen reauired only that Applicants provide a basis upon which it c)ulo find that there is reasonable assurance that
e <
funds will be available to decommission the facility after icw power. The plan subnitted by. Applicants does this. See e.g. Staff Affidavit, passim.
Moreover, as,is more fully explained by Peter Erickson, the Staff's expert in decommissioning matters, the decommissioning proposal put forward'by Applicants in their plan is reasonable. Staff Affidavit at 1 A14. As Mr. Erickson also observes, the amount of radioactive waste 7,
generated during low power operations will be relatively small and easily can be accomodated by existing waste disposal facilities. I_d . Mr.
Erickson also explains why, contrary to NECliP's assertion, it is not inappropriate for Applicants to elect to use the DECON option. It is Mr.
Erickson's expert opinion that "the DECON option is acceptable" since it represents "a logical way to remove the spent fuel from the [Seabrook]
site for reuse by another licensee." M.at1A10.
basis (g) of the Attorney General's contention deals with the option of shipping the spent fuel abroad. As *.he Staff explained in resper,se to NECllP Contention 1 and SAPL Contention 1, the "overseas shipment" option was used only for the purpose of estimating the cost of deconnissioning the facility af ter low power; it is not the most likely or economical method of disposing of the spent fuel generated during low power operation.
In Basis (h) the Attorney General asserts that the duration of low l . power operations estimated by Applicants is not reasonable. The .
Intervenor sets forth no basis for this unsupported assertion and thus it cannot be the four.detion of a contention. The Staff has reviewed this estimate and finds it reasonable Staff Affidavit at 5 A6.
4 i'
In Basis (i) of the . Attorney General's contention questions the ability of Applicants to reasonably assure that adequate funds are available to decommission the facility 'siter low power. The Attorney General, however, does not 'previde any credible reason to disregard Applicants' sworn statement or to warrant further -inquiry by the Commission. Further, the Staff's affidavit explains ht length the reasons j
, why the plan submitted by Applicants satisfies the reasonable assurance requirements imposed by CLI-88-07. See Staff Affidavit at 11 All, 25.
For these reasons, the Attorney General's motion to reopen does not raise a significant safety or environmental issue. The motion, therefore, should be denied.
CONCLUSION The plan subnitted by Applicants in response to CL:-88-07 provides a basis upon which the Commission can find that there is reasonable assurance that adequate funding will be available to decommission the Seabrook Station after low power in the event a full power license is not granted. None of the motions to reopen the record to admit late-filed contentions challenging Applicants' plan which have been filed by NEChP, 6
a e
SAPL, the Town of Hampton, cna the Massachusetts Attorney General raises a significant environmental or public health and safety issue as is required under 10 C.F.R. 6 2.734(a)(2). E l The motions therefore should be denied and the stay imposed by the Commission in CLI.r,3-07 lif ted.
ctfully submitted,g 1
1 s e j / /
6 gory nB er Counsel tr f4 taff I
Dated at Rockville, Maryland this 16th day of Hovember 1988 o
-15/ As noted in Part (A) of this response, Section 2.734(d) of the Rules of Practice provides that a n.otion to reopen the record to admit a
- late-filed contention must also meet the standards governing late-filed contentions set forth in 10 C.".R. 5 2.714(a)(1). Q.
Putilic Service Cnapany of liew Hampshire (Seabrook Station, Units 1 and 27, ALAD-883, 27 hRC 43 (1988). Intervenors' motions to reopt;n should be denied because of their failure to meet all of the standards governing motions to reopen. For this reason, it is not necessary for the Staff to discuss whether a balancing of the fivt f actors listed in section 2.714(a) also militates against admissicr.
of intervenors' late-filed contentions, i
L