ML052010443

Joint Motion for Approval of Settlement Agreement and Termination of the Proceeding

ML052010443
Person / Time
Site:	Yankee Rowe
Issue date:	07/11/2005
From:	Block J, Horin W Citizens Awareness Network, Winston & Strawn, LLP, Yankee Atomic Electric Co
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-29-OLA, CLI-05-15, LBP-04-27, RAS 10165
Download: ML052010443 (16)

Text

PfAs IoI&,6 July 11, 2005 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD- USNRC July 11, 2005 (3:42pm)

In the Matter of: ) OFFIC BE OF SECRETARY

) RUL EMAKINGS AND YANKEE ATOMIC ELECTRIC ) ADJU DICATIONS STAFF COMPANY ) Docket No. 50-29 (Yankee Nuclear Power Station) )

)

License Termination Plan )

JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT AND TERMINATION OF THE PROCEEDING Pursuant to 10 C.F.R. §2.338(i), the Citizens Awareness Network ("CAN') and Yankee Atomic Electric Company ("Yankee") (collectively, "the Parties"), without objection by the Nuclear Regulatory Commission Staff ("Staff"), hereby move the Atomic Safety and Licensing Board ("Board") for approval of a Settlement Agreement agreed to by the Parties, and accordingly, termination of this proceeding. CAN has authorized counsel for Yankee to submit this Joint Motion on their behalf.

I. Background A. Status of This Proceeding This proceeding concerns Yankee's application for Nuclear Regulatory Commission ("NRC") approval of a License Termination Plan ("LTP") for the Yankee Nuclear Power Station ("YNPS"), located at Rowe, Massachusetts. NRC approval of an LTP or LTP amendment is in the form of a license amendment, and thus carries associated public hearing rights. The Citizens Awareness Network("CAN") filed six proposed contentions in connection with Revision 0 of Yankee's LTP. The Licensing Board, in a Memorandum and Order of lemn-rq-cA I

November 22, 2004, admitted three contentions, all raising similar issues regarding the completeness of the radiological characterization at YNPS and the alleged lack of a groundwater remediation plan in the LTP.1 Yankee appealed that decision pursuant to 10 C.F.R. § 2.311(c).

The NRC Staff also appealed. Those appeals gave rise to the Commission decision of June 29, 2005, CLI-05-15. The Commission concluded that "we do not have grounds to vacate the

[Licensing] Board's decision" on admissibility of the contentions. 2 However, the Commission provided clarification on its LTP regulations in 10 C.F.R. § 50.82 and further recognized "that this case may have become somewhat overtaken by events."3 In this regard, the Commission noted in particular Yankee's submittal of Revision I of the LTP and the Staffs completion of an Environmental Assessment ("EA"). 4 Following the Commission's decision on June 29, 2005, the Licensing Board on June 30, 2005 issued an Order requesting the Parties to file briefs addressing what genuine issues of material fact remain to be adjudicated in light of the Commissions' determinations in CLI 15. Briefs addressing this issue are due no later than July 14, 2005, with responses due no later than July 25, 2005.

I "Memorandum and Order (Granting Hearing Request)," LBP-04-27, 60 NRC 539 (2004)

("Memorandum and Order").

2 CLI-05-15, slip op. at 17.

3 Id.atl8.

4 Id.

2 III

B. The Admitted Contentions The three CAN contentions admitted by the Licensing Board were proposed as follows:

Contention 2 The LTP should not be approved at this time because Yankee Atomic has failed to provide documentation of the source, cause, and remediation of the current high levels of tritium contamination in the ground water or site, in violation of 10 CF.R. Part 20, Subpart E, § 50.52, § 50.82. The samples collected in 2003 following the drainingand emptying of the fuel pool still show an extremely high concentration of tritium (e.g., >45,000 pCi/L in monitoring well MW-107C). The LTP does not resolve the question as to whether this high level of contamination was previously overlooked or whether it relates to a new or recent release connected with work on thefuel pool in 2003. A supplementalEnvironmentalReport and supplemental EIS should be preparedto explain the source and cause of the contamination, demonstrate that it is contained within the site, and provide a planfor cleaningup the contamination.

Contention 3 The LTP should not be approved at this time because Yankee Atomic has failed to adequately characterize several possible contaminated zones within the ground water under the site in violation of 10 C.F.R. Part 20, Subpart E and the requirements of JO CF.R. § 50.82. Without adequate characterization,there can be no assurance that the LTP will adequately safeguardpublichealth by demonstratingcompliance with 10 C.F.R. Part 20 standards.

Contention 4 The LTP should not be approved at this time because it does not completely characterize the vertical extent of subsurface soil contaminationbeneathfacility structures in violation of 10 CF.R. Part20 and § 50.82. This is significant because without immediate characterization of the likely source area(s) of subsurface soil contamination beneath facility structures Yankee Atomic Electric Company cannot assure adequateprotection of human health and that of nearby sensitive receptors under the LTP's site characterization as requiredby 10 C.F.R. Part20 and § 50.82.

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All three contentions were supported by a declaration by Robert Ross, a hydrogeologist.

In admitting the contentions in LBP-04-27, the Licensing Board clarified their scope. The Licensing Board concluded that Contention 2 "is admissible insofar as it challenges the LTP on the ground that it does not fulfill the requirements of 10 C.F.R. § 50.82."5 With respect to Contentions 3 and 4, the Licensing Board concluded:

Once again, what CAN is asserting is that there has not been the complete site characterization that it believes the regulations require be included in the LTP. We do not understand the Licensee to dispute that the characterization has not been completed. Nor could it. Apart from the emphasis in its response upon the ongoing nature of the characterization process, Part 2 of the LTP, entitled "Site Classification," contains a mixture of historical and survey data and then identifies continuing activities, including in Section 2.8 "Continuing Characterization Activities." That being so, the challenge to the now combined third and fourth contentions squarely presents the same issue that was raised by the second contention: namely, whether the LTP had to contain a full site characterization, combined with any plans for remediation that might be required as a result of the characterization. 6 Accordingly, the Licensing Board combined and admitted Contentions 3 and 4.7 II. Overview of Settlement Agreement Terms and Conditions Under the proposed Settlement Agreement CAN has agreed that the admitted contentions in this proceeding, Contentions 2, 3, and 4, regarding the completeness of the radiological characterization for YNPS and the alleged lack of a groundwater remediation plan in the LTP are moot and as a result, all the Parties agree, the proceeding should be terminated.

Yankee has agreed to provide CAN with final hydrogeological reports developed to satisfy Federal and State law. Yankee has also agreed to maintain a CAN representative on its 5 Memorandum and Order, LBP-04-27, 60 NRC at 545 (footnote omitted).

6 Id. at 546.

7 Id. at 32,671.

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Community Advisory Board. With respect to well-monitoring, Yankee has agreed to perform offsite down gradient monitoring of the groundwater for tritium, and that such monitoring will be conducted to demonstrate that the Environmental Protection Agency's Maximum Contaminants Level standards are met, will resume following the completion of site demolition activities (anticipated to be completed this fall), and will continue for such period as required by Federal and State law.

III. Approval of Settlement Agreement by the Board and Termination of this Proceeding and if Necessary Tolling of Time to File Briefs in Response to Board Order of June

30. 2005 Accordingly, the Parties request that the Board approve the Settlement Agreement attached hereto as Exhibit 1, accept CAN's withdrawal from this proceeding, dismiss Contentions 2, 3, and 4 as moot, and terminate this proceeding. Approval of this Settlement Agreement is in the public interest because the matters required to be adjudicated have been resolved by the Settlement Agreement and Consent Order submitted by the Parties. Further, the Commission favors the "fair and reasonable settlement and resolution" of contested issues in its licensing proceedings. As required by 10 C.F.R. § 2.338(g), a proposed Consent Order is attached as Exhibit 2.

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In the alternative, should the Board not have approved this Settlement Agreement by July 14, 2005, the Parties ask that the time to file briefs in response to the Board's directive set forth in the Order of June 30, 2005 be tolled pending the Board's ruling on this motion.

Respectfully submitted, J ithan M. Block, Esq.

N9LO0' William A. Horin, Esq.

94 Main Street David A. Repka, Esq.

P.O. Box 566 Amy C. Roma, Esq.

Putney, VT 05346-0566 WINSTON & STRAWN LLP 1700 K Street, NW Washington, D.C. 20006-3817 COUNSEL FOR CITIZENS COUNSEL FOR YANKEE ATOMIC AWARENESS NETWORK ELECTRIC COMPANY Dated in Putney, Vermont Dated in Washington, District of Columbia This 8th day of July 2005 This V day of July 2005 DC:424947.1 6

EXHIBIT I SETTLEMENT AGREEMENT WHEREAS, Citizens Awareness Network ("CAN") has requested and been granted a hearing before the Atomic Safety and Licensing Board ("Board")

relating to certain matters concerning Yankee Atomic Electric Company's

("Yankee") application for Nuclear Regulatory Commission ("NRC") approval of a License Termination Plan ("LTP") for the Yankee Nuclear Power Station

("YNPS"), located at Rowe, Massachusetts, Docket No. 50-29 ("NRC Proceeding");

WHEREAS CAN and Yankee have determined that it is in the public interest to seek dismissal of the admitted CAN contentions (Contentions 2, 3, and 4), regarding the completeness of the NRC required radiological characterization for YNPS and the alleged lack of a groundwater remediation plan in the LTP, because these contentions are now moot; WHEREAS CAN and Yankee have agreed that because all the admitted contentions are now moot, this proceeding should be terminated; THEREFORE, IT IS STIPULATED AND AGREED by CAN and Yankee that:

I. CAN and Yankee admit that the NRC has jurisdiction over the parties and the subject matter of this Settlement Agreement.

2. CAN agrees that CAN's Contentions 2, 3, and 4, as admitted by the Board, regarding the completeness of the characterization for YNPS and the alleged lack of a groundwater remediation plan in the LTP, are now moot and all matters

otherwise required to be adjudicated have been resolved by this Settlement Agreement and the Consent Order issued by the Board.

3. CAN further agrees that as a result of this agreement the NRC proceeding on the contentions should be terminated.

4. Yankee agrees to provide CAN, CAN's attorney, Jonathan Block, and expert, Robert Ross, all hydrogeological reports developed to satisfy Federal and State requirements. Draft reports will not be provided unless necessary for understanding the final reports. Yankee also agrees to provide reimbursement for any work done for CAN by Mr. Ross, up to, but not exceeding, $1000.00 in the aggregate in fees related to providing CAN with an expert assessment of the hydrogeological issues in the EA and documents Yankee provides to CAN in performing this agreement. Mr. Ross will invoice Yankee directly for reimbursement of such fees.

5. Yankee agrees that a CAN representative will maintain its seat on the Community Advisory Board ("CAB") as long as it stays in existence.

6. Yankee hereby provides assurance to CAN that Yankee will perform down gradient offsite monitoring of the groundwater for tritium which will be conducted off the YNPS industrial site; specifically employing monitoring wells as necessary to meet Federal and State requirements. The offsite monitoring wells currently being used are described in Attachment A to this Exhibit 1.

Attachment B to this Exhibit 1 provides the location of these wells.

7. Yankee hereby provides assurance to CAN that this monitoring will continue for such period as mandated by Federal and State requirements.

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8. Yankee hereby provides assurance to CAN that the down gradient offsite monitoring of the groundwater for tritium will be conducted to demonstrate that the Environmental Protection Agency's Maximum Contaminants Level ("EPA MCL") standards are met, as is consistent with the YNPS LTP.

9. Yankee hereby provides assurance to CAN that this down gradient offsite monitoring will resume following completion of site demolition activities, anticipated to be completed in the fall of 2005.

10. All parties hereto agree to exercise due diligence in the performance of their various responsibilities under this Settlement Agreement and to cooperate with each other in carrying out its intent.

11. This Settlement Agreement supersedes all prior representations, negotiations, and understandings of the parties hereto, whether oral or written, and constitutes the entire agreement between the parties with respect to the matter hereof.

12. This Settlement Agreement shall not be effective, final and binding on the parties hereto unless this Settlement Agreement is approved in its entirety by the Board or the Commission and the proceeding terminated. If the Board or the Commission does not approve this Settlement Agreement in its entirety, then this Settlement Agreement shall not take effect and shall be deemed null and void.

The parties agree that if the Board or the Commission does not approve this Settlement Agreement, they will negotiate in good faith to resolve any outstanding issues necessary to obtain its approval by the Board or the Commission.

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13. In the event this Settlement Agreement becomes binding upon the parties in accordance with the terms herein, the Settlement Agreement shall be binding upon the parties successors, assigns, representatives, employees, agents, partners, subsidiaries, and affiliates.

14. Yankee and CAN expressly waive the right to challenge, contest the validity of, or seek judicial review of any order entered as a result of this Settlement Agreement so long as such order is fully consistent with each provision of this Settlement Agreement.

15. When approved by the Board, the order entered as a result of this Settlement Agreement has the same force and effect as an order made after full hearing.

IN WITNESS WHEREOF CAN and Yankee have caused this Settlement Agreement to be executed by their duly authorized representatives on this 8th day of July 2005.

I I

\ ,vL _.

William A. Horin, Esq. / Jonathan M. Block, Esq.

David A. Repka, Esq. Counsel for Citizens Awareness Network Amy C. Roma, Esq.

Counsel for Yankee Atomic Electric Company DC:424949.1 4

EXHIBIT I - ATTACHMENT A Tritium in Ground Water from Off Site Monitoring Wells Yankee Nuclear Power Station Rowe, Massachusetts Aquifer Well Depth Well No. Completion (feet) Tritium (pCVI)

July-03 not detected November-03 430 March-04 279 May-04 not detected August-04 750 November-04 750 November-04 760 August-03 not detected November-03 not detected March-04 210 May-04 890 September-04 not detected November-04 323 November-04 620 Noemer0 ..- '.'§S,;4, November-04 ' d k ;,;,.6; not.detcte not detected November-04 not detected November-04 .M. not detected September-04 not detected November-04 not detected September04 ntdtce November-04 not detected November04 _ not detected September-04 not detected November-04 not detected Note: EPA MCL for tritium is 20,000 pCUi,. r

EXHIBIT 1 - ATTACHMENT B In-d.

A - wards I I

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S W so Scub: Feet Yankee Nuclear Power Station Rowe, Massachusetts K

EXHIBIT 2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges:

Alan S. Rosenthal, Chairman Dr. Richard F. Cole Dr. Charles N. Kelber In the Matter of Docket No. 50-29-OLA YANKEE ATOMIC ELECTRIC COMPANY ASLBP No. 04-831-01-OLA (Yankee Nuclear Power Station LTP)

ORDER (Approving Settlement Agreement and Terminating the Proceeding)

On July 11, 2005, Citizens Awareness Network ("CAN") and Yankee Atomic Electric Company ("Yankee") (collectively, "the Parties") moved for an order approving the Settlement Agreement attached as Exhibit 1 to the Joint Motion for Approval of Settlement Agreement also filed July 11, 2005.

Consistent with the Commission's policy to encourage the settlement and resolution of contested issues in NRC licensing proceedings, we find the Settlement Agreement to be in the public interest. Pursuant to our authority under 10 C.F.R. § 2.338(i), we grant the Parties motion to approve the Settlement Agreement, dismiss Contentions 2, 3, and 4, and

terminate this proceeding. The Settlement Agreement hereby has the same force and effect as an order made after a full hearing.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Rockville, Maryland July_, 2005 DC:424954.1

• Copies of this order were sent this date by Internet electronic mail transmission to the counsel for the parties.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

YANKEE ATOMIC ELECTRIC )

COMPANY ) Docket No. 50-29

)

(Yankee Nuclear Power Station) )

)

License Termination Plan )

CERTIFICATE OF SERVICE I hereby certify that copies of "JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT AND TERMINATION OF THE PROCEEDING" in the captioned proceeding have been served on the following by deposit in the United States mail, first class, this I lth day of July, 2005. Additional e-mail service, designated by *, has been made this same day, as shown below.

Office of Commission Appellate Administrative Judge*

Adjudication Alan S. Rosenthal, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Administrative Judge* Washington, DC 20555-0001 Richard E. Cole E-mail: rsnth(la)comcast.net Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Administrative Judge*

U.S. Nuclear Regulatory Commission Charles N. Kelber Washington, D.C. 20555-0001 Atomic Safety and Licensing Board Panel E-mail: rfclInrc.gov Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Office of General Counsel Washington, DC 20555-0001 Attn: Associate General Counsel E-mail: ckelber(aatt.net for Hearings, Enforcement and Administration Deborah B. Katz*

Marian L. Zobler, Esq.* P.O. Box 3023 Shelly D. Cole, Esq. Charlemont, MA 01339-3023 Office of the General Counsel E-mail: deb~nukebusters.org Mail Stop 15 D21 E-mail: mlzinrc.gov; sdclinrc.gov Office of the Secretary*

OGCMaiICenterinrc.gov Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop - D-16 Cl Washington, D.C. 20555-0001 (original and two copies)

E-mail: HEARINGDOCKET~nrc.gov

-I-

Bill Perlman, Chair* Linda Dunlavy*

Franklin Regional Council Executive Director of Governments Executive Committee Franklin Regional Council 425 Main Street of Governments Greenfield, MA 01301-3313 425 Main Street E-mail: topcat(a)graypanther.com Greenfield, MA 01301-3313 Email: lindad(ifrcog.org Gerald Garfield, Esq.*

Day, Berry & Howard City Place 1 Hartford, CT 06103 Email: Rgarfield(a-dbh.com Jonathan M. Block, Esq.*

94 Main Street P.O. Box 566 Putney, VT 05346-0566 E-mail: 1ohb(a-).sover.nct 0

William A. Horin, Esq.

Counsel for Yankee Atomic Electric Company DC:424727.1