Text

Memorandum & Order.* Staff Withholds Final Decision on Environ & Resources Conservation Organization Petition & Remands Matter to Board for Determination on Admissibility of Any Contentions.W/Certificate of Svc.Served on 930303
	ML20034G720
Person / Time
Site:	Rancho Seco
Issue date:	03/03/1993
From:	Chilk S; NRC OFFICE OF THE SECRETARY (SECY)
To:	; ENVIRONMENTAL & RESOURCES CONSERVATION ORGANIZATION
References
	CON-#193-13673 CLI-93-03, CLI-93-3, DCOM, NUDOCS 9303110092
	Download: ML20034G720 (35)
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/3(>13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

~33 %3 -3 ? 0 '10 COMMISSIONERS:

Ivan Selin, Chairman Kenneth C.

Rogers

,_n.

James R.

Curtiss Forrest J.

Remick E.

Gail de Plangue

, d6MiD MAR - 31993

)

In the Matter of

)

SACRAMENTO MUNICIPAL

)

Docket No. 50-312-DCOM UTILITY DISTRICT

)

(Decommissioning Plan)

(Rancho Seco Nuclear Generating

)

Station)

)

MEMORANDUM AND ORDER CLI-9 3 - 03 Environmental and Resources Conservation Organization (ECO) has filed an appeal before the Commission pursuant to 10 ' F.R.

5 2.714a (1992).

This appeal challenges an Atomic Safety and Licensing Board's August 20, 1992 order which denied ECO's intervention petition and request for hearing on the Nuclear Regulatory Commission (NRC) staff's proposed order approving of a decommissioning plan for, and authorizing decommissioning of, the Rancho Seco Nuclear Generating Station (Rancho Seco).

The Licensing Board concluded that ECO had failed to establish standing eitner as a matter of right or of discretion and had failed to set forth at least one viable contention.

LBP-92-23, 36 NRC 120.

For the reasons set forth below, we withhold a final 9303110092 930303 PDR ADOCK 05000312 hfC2 <

C PDR

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decision on ECO's petition and remand the matter to the Licensing Board for a determination on the admissibility of any amended or new contention filed in accordance with terms of this order.

Thus, to a limited extent, ECO's appeal is granted.

I.

Background

The licensee, Sacramento Municipal Utility District (SMUD),

shut down Rancho Seco after a June 6, 1989 public referendum came out against SMUD's continued operation of this facility.

The licensee has since ceased production of power, defueled the f

reactor, and obtained from the NRC conversion of its operating

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license to a " possession-only" license, which permits only possession of the facility and radioactive material, but not plant operation.

ECO unsuccessfully sought to intervene in the prior proceedins that authorized the possession-only license.'

On May 20, 1991, the licensee filed its application for termination of its license and a proposed decommissioning plan.

The plan provides for 10 to 20 years of on-site storage 1

(SAFSTOR)2 followed by the removal of the residual l

' See Sacramento Municioal Utility District (Rancho Seco

)

Nuclear Generating Station), CLI-92-2, 35 NRC 47 (1992), appeal I

docketed, No. 92-70202 (9th Cir. April 2, 1992) (briefs have been filed on ECO's appeal, and the parties are awaiting the j

j scheduling of oral argument).

j 2 SAFSTOR is a method of decommissioning in which the nuclear facility is placed and maintained in a condition that allows both safe storage and subsequent decontamination.

Egg Final Rule, General Requirements for Decommissioning Nuclear Facilities, 53 Fed. Reg. 24,018, 24,022 (June 27, 1988); NRC's Generic Environmental I= pact Statement on Decommissioning of Nuclear Facilities (NUREG-0586) (hereinafter, GEIS) at 2-6.

i i

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radioactivity.

The licensee subsequently provided a supplement-to its Environmental Report on October 21, 1991, and provided i

additional information regarding both the decommissioning plan and environmental report on April 15, 1992 in response to NRC I

staff inquiries.

ECO filed its petition to intervene and request for hearing j

pursuant to a March 19, 1992 Notice of opportunity for Hearing f

with respect to both the decommissioning plan and the Environmental Report submitte hy SMUD.3 A prehearing i

conference was held before the Licensing Board on July 14, 1992.

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Following the prehearing conference, on July 17, 1992, ECO filed

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i a motion requesting that the Licensing Board withhold issuing an j

order wholly denying ECO's petition for leave to intervene and request for a hearing until after the licensee had filed its supplemental environmental report and after staff had issued either an Environmental Assessment or Draft Environmental Impact i

Statement, whichever occurred first.

The Licensing Board in LBP-92-23 concluded that ECO had i

failed to demonstrate standing in its own right or as a j

representative of one or more of its members.

Additionally, the Licensing Board rejected ECO's request for discretionary i

i intervention because the Licensing Board was unconvinced that ECO would assist in building a sound record on which the Commission j

could base its decision.

The Licensing Board also based its i

determination as to discretionary intervention on its finding

{

1 3 57 Fed. Reg. 9,577 (Mar. 19, 1992).

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I that ECO had failed to proffer at least one viable contention.

Finally, the Licensing Board denied ECO's motion for the

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Licensing Board to withhold issuing an order wholly denying ECO's j

intervention.

According to the Licensing Board, this motion contemplated that ECO would be allowed to amend its contentions I

after the prehearing conference and such deferral would be I

counter to the long-standing Commission practice that contentions

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must be submitted prior to the first prehearing conference or i

i otherwise are considered " late-filed" and judged accordingly.

II. Arguments Before the Commission On appeal, ECO, argues that it has established standing i

based on the three alternative theories.

First, ECO asserts that

[

it established standing as a representative of a member of its organization who otherwise had standing in his own right, but who has authorized ECO to represent his interests.'

ECO maintains

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that its member, David R. Crespo, who lives within 43 miles of Rancho Seco, will be environmentally harmed if Rancho Seco is not preserved for resumed operation, or in the alternative Mr. Crespo will be radiologically harmed if Rancho Seco is decommissioned by the method set forth in SMUD's decommissioning plan.

Second, ECO i

4 argues that it has met the standing criteria based on harm to its own organizational interests.

According to ECO, decommissioning Rancho Seco will constitute an adverse change to the physical

' Environmental and Resources Conservation Organization l

Brief in Support of Appeal 1 rom LBP-92-23 filed September 8, 1992 (hereinafter ECO Brief).

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environment which requires the agency, pursuant to the National Environmental Policy Act (NEPA), to prepare an Environmental Impact Statement (EIS).

ECO maintains that the failure to prepare an EIS creates a risk that serious environmental impacts will be overlooked.5 Third, ECO asserts that its pleadings were sufficient to warrant intervention as a matter of discretion.

According to ECO, the expertise of its identified members could f

aid in the development of a sound record and it had proffered both viable environmental and safety contentions.6 NRC staff argues that ECO has not established standing as a representative of the interests of one of its members or based on e

its own interests.

According to staff the allegations of harm to 1

the identified member are vague and the alleged harm, even if t

true, is derived from the decision not to operate Rancho Seco rather than from the decommissioning order which is at issue here.7 Moreover, staff asserts that ECO did not allege 1

sufficient harm to its own interests.

According to staff, ECO only asserted a desire for information from an EIS and did not link any harm to the decommissioning order itself.8 Additionally, staff argues that the Licensing Board 5 ECO Brief at 3-4.

6 Id. at 25.

a NRC Staff Response in Opposition to Appeal From LBP-92-23 7

Filed By the Environmental Conservation and Resources Organization, September 23, 1992, at 12 (hereinafter Staff's Response).

8 Staff Response at 11.

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i correctly denied discretionary intervention because no admissible i

contentions were set forth and ECO failed to show expertise that would aid the Commission in its determination on 7

decommissioning.'

Staff maintains that none of ECO's contentions " remotely complied" with the pleading requirements for admissibility provided in 10 C.F.R. S 2.714 (1992).

Staff i

agrees with the Licensing Board's denial of ECO's motion to

[

withhold issuance of an order denying standing until ECO was given an opportunity to amend its contentions.

According to staff, once standing is denied, a petition should be denied i

l irrespective of contentions."

Moreover, staff argues that ECO did not review all publicly available documents pertinent to this proceeding and only speculated that new information would be

[

revealed in future documents."

The licensee's arguments are essentially the same as staff's.

The licensee asserts that ECO's arguments are difficult to understand and that any uncertainty regarding the bases for l

ECO's appeal should be resolved against ECO.12 In addition, the licensee argues, as both it and staff did before the Licensing Board, that discretionary intervention is not permitted in this

' Staff Response at 15.

'O Id. at 29-30

" Id. at 31-32.

12 Licensee's Brief in Opposition to the Appeal of Environmental and Resources Conservation Organization (hereinafter Licensee's Brief) at 5-6, filed September 23, 1992.

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proceeding because the only potential intervenor was denied standing.

1 IV. Analysis This controversy centers on whether ECO has met the minimum requirements for intervention in NRC proceedings.

A petitioner wishing to participate in an NRC proceeding must establish both standing and also present at least one viable contention.

10 C.F.R.

S 2.714 (1992).

The Commission is presently reviewing the i

process for review and approval of decommissioning plans, including the timing and scope of public participation in the decommissioning process.u The arguments raised by ECO in suppoic of its standing here present complex questions of law and fact.

Although ECO did not clearly present a case showing the requisite interest to participate in an NRC proceeding, ECO did present several difficult questions which, if resolved in its favor, would support standing.

Moreover, ECO has submitted one viable contention and will be permitted to amend another.

For these reasons and in light of our on-going review of our provisions for public participation on decommissioning matters, we have chosen to leave the question of standing as of right unresolved and to grant ECO discretionary intervention.

To the extent that we have decided this appeal without resolving the petitioner's standing as a matter of law, we rest our decision on our discretionary authority to hold hearings and to permit u See SECY-92-382, Decommissioning - Lessons Learned t

(November 10, 1992).

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participation in our proceedings."

We do so in view of the unusual circumstances presented by this case.

Our decision

.should not be viewed as precedent for any other matter that may come before the Commission.

We therefore turn directly to ECO's contentions.

A.

Contentions.

In its supplement, ECO submitted an environmental contention and safety contentions.

ECO also raised a number of procedural l

matters which it labelled as contentions, though these matters

(

did not concern the substantive merits of the licensee's l

decommissioning plan.

1.

Standards.

i The standards for an admissible contention are established in 10 C.F.R. SS 2.714(b) and (d)."

Section 2.714(b) provides i

that each contention must consist of a specific statement of the issue of law or fact to be raised or controverted, a brief explanation of the bases of the contention, a concise statement l

of the " facts or expert opinion" which support the contention,

" Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614-17 (1976).

See also Florida Power and Licht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-91-13, 34 NRC 185, 188 (1991); Public

['

Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438, 442 (1980);

Tennessee vallev Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1420-21 (1977).

The applicable rules in 10 C.F.R. S 2.714 were amended in D

1989 "to raise the threshold for the admission of contentions."

54 Fed. Reg. 33,168 (Aug. 11, 1989).

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together with references to specific sources and documents of which the petitioner is aware and upon which the petitioner intends to rely.

Further, the contentions must include sufficient information to show that a genuine dispute exists on a material issue, making reference to the specific portions of the application (including the applicant's environmental report and safety report).

A contention may be refused if 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."

10 C.F.R. 5 2.714 (d) (2) (ii).

2.

ECO's Attemot to Incorocrate Its Petition BV Reference.

In this proceeding, consistent with section 2.714 (b) (2), the Licensing Board directed ECO to supplement its original petition with its list of contentions and supporting documentation by June 29, 1992.

Memorandum and Order (Filing Schedules and Prehearing Conference) dated May 15, 1992.

Pursuant to this order ECO filed a supplement to its initial petition.

At the prehearing conference, ECO attempted to incorporate part of its original petition as contentions.

Prehearing Conference Transcript (hereinafter Tr.) at 109 (July 14, 1992).

The Licensing Board ruled that "only information appearing in the supplement would be considered as contentions."

LBP-92-23, 36 NRC at 132.

On appeal ECO asserts that the Licensing Board's exclusion of " contentions" identified in ECO's original petition was arbitrary and capricious, an abuse of discretion, and a violation I

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1 10 of ECO's rights pursuant to the AEA, NEPA, and the Administrative Procedure Act (APA)."

As a general matter, section 2.714 does not preclude a party from filing contentions in the original intervention petition.

In this case, however, ECO did not label contentions as such in its initial petition and the pleading is not organized in such a way that it is obvious that it inct ied contentions.

To the contrary, the petition was obviously t

organized in a way to comply with section 2.714 (a), which sets forth the requirements for a party to demonstrate its interest in a proceeding, how that interest may be affected, and specific aspects of the subject matter of the proceeding as to which the petitioner wishes to intervene.

Specific pleading requirements for the admissibility of contentions are set out in section 2.714(b).

Moreover, on appeal ECO (1) did not specifically identify any particular " contention" from its initial petition that was not considered by the Licensing raard, and (2) did not specifically identify any argument from the original petition which was ignored by the Licensing Board and which, if considered, would have changed the ultimate conclusion regarding ECO's intervention petition.17 Thus, we do not find that the i

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ECO Brief at 26.

'7 ECO cannot fault the Licensing Board for misapprehension of ECO's pleadings where ECO failed to follow specific pleading requirements.

ECO's counsel is no stranger to NRC proceedings and in fact was Inminded in the earlier proceeding on the possession-only license that parties who appear before the Commission " bear full responsibility for any possible misapprehension of {their] position caused by the inadequacies of

[their] brief..." Rancho Seco, CLI-92-2, 35 NRC at 55 n.2 (continued...)

4 11 Licensing Board erroneously rejected portions of ECO's original petition as contentions.

3.

ECO's Environmental Contention.

ECO's environmental contention alleges that "SMUD's environmental report is inadequate."18 According to ECO, SMUD's October 21, 1991 Supplement to its Environmental Report is

" totally inadequate" because it fails to address impacts of decommissioning which are required to be considered under 10 i

C.F.R. S 51.45.

Further, ECO maintains that the NRC's GEIS provides inadequate consideration of the specific impacts of decommissioning Rancho Seco as well.

Finally, ECO argues that j

SMUD's discussion of a loss of off-site power (" LOOP") is inadequate and that the NRC staff's request for further information constitutes a de facto admission that SMUD's Environmental Report is unacceptable.

The Licensing Board denied ECO's environmental contention, for the most part, because it found that the environmental impacts that ECO seeks to litigate relate only to the cessation of operations, rather than to decommissioning.

LBP-92-23, 36 NRC at 133-36.

op. at 20-27.

Because the Commission has previously ruled that such matters are outside the scope of a decommissioning proceeding, the Licensing Board determined ECO's t

17(... continued)

(quoting Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 NRC 277, 278 (1982)).

'8 Supplement at 16-28.

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12 environmental contention was not admissible.

In view of the Commission's earlier determination that cessation of operations does not require NRC approval but is left to the licensee, the Licensing Board found that resumed operation need not be considered in this instance in conjunction with the request for decommissioning."

The Licensing Board also rejected ECO's assertion that staff's questions to the licensee regarding the licensee's Environmental Report further supported ECO's contention that the Environmental Report is inadequate.

LBP 23, 36 NRC at 136.

According to the Licensing Board this assertion did not comply with specific pleading requirements for admissible contentions in that ECO failed to describe the matters to which staff questions are addressed or why they might constitute a defect in the Environmental Report.

ECO argues on appeal that the licensee's Environmental Report's discussion of impacts of decommissioning is deficient under NEPA and Council on Environmental Quality (CEQ) regulations because it does not adequately consider the "no-action" alternative to decommissioning Rancho Seco.20 ECO does not

" LBP-92-23, 36 NRC at 135.

The Licensing Board stated that its determination that all that need be considered in this proceeding is the adequacy of the decommissioning proposal itself (not resumed operation) "is consistent with cases holding that, under NEPA, an agency need consider only alternatives that lead to the objective of the proposal."

Id.,

citing City of Ancoon v.

Hodel, 803 F.2d 1016, 1020-22 (9th Cir. 1986) (per curiam), cert.

denied, 484 U.S.

870 (1987); Citizens Acainst Burlincton. Inc.

v.

Busev, 938 F.2d 190, 195 (D.C. Cir.), cert, denied, 112 S.Ct. 616 (1991).

20 ECO Brief at 31.

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define "no action" but states that " appropriate versions of the

'no action' alternative would oreserve the notential for future operation and approval of decommissioning would destroy that potential."

See ECO Brief at 28 (emphasis in original).

ECO apparently recognizes that NEPA and CEQ regulations are applicable only to an agency's environmental review, not a licensee's, but ECO avers that to the extent that the Environmental Report must discuss such requirements, SKUD's Environmental Report is inadequate.21 ECO argues that SMUD's Environmental Report contains only a l

i summary dismissal of the "no-action" alternative without any l

detailed or quantitative consideration of the direct, indirect and cumulative costs and benefits of that alternative.

According j

to ECO, the Environmental Report is also deficient for not addressing the non-radiological impacts of decommissioning presented in its supplement.

In its supplement, ECO asserted that non-radiological impacts of premature decommissioning include harm from replacement energy sources ( e. q,_, pollution and dependence on foreign oil), threat to the reliability of the electrical system and lack of assurance of electricity at reasonable rates.

ECO Supplement at 9, and Crespo Affidavit at 4.

21 ECO pointed out in its supplement that pursuant to 10 C.F.R. S 51.45 SMUD's Environmental Report is required to include a discussion sufficiently complete to aid the Commission in developing and exploring, pursuant to NEPA, appropriate alternatives to the recommended courses of action.

ECO Supplement 17-23.

14 Despite ECO's urging,22 we decline to reconsider our prior determination that resumed operation is not to be considered as an alternative to a proposal to decommission a facility except perhaps in extraordinary circumstances (e.c.,

national emergency) not present here.23 Under NEPA, an agency need only consider the range of alternatives " reasonably related" to the scope and goals of the proposed action.24 The goal of decommissioning is to return the facility to a condition that " permits release of the property for unrestricted use...."

10 C.F.R.

S 50.2 (1990);

i GEIS at 2-5.

Accordingly, such environmental analysis in this proceeding, which involves staff's order approving of a i

decommissioning plan for, and decommissioning of, Rancho Seco need not address resumed operation as an alternative.

The 22 ECO Brief at 29.

See Shoreham, CLI-90-8, 32 NRC at 207; Sections 108, 23 186(c), 188 of the Atomic Energy Act, 42 U.S.C.

SS 2138, 2236, 2238.

Even if " resumed operation" were an alternative to decommissioning, we would not be required to consider it under the NEPA " rule of reason".

NRDC v.

Callaway, 524 F.2d 79, 92 (2d Cir. 1975).

SMUD has decided not to operate the plant based upon the decision of the voters, and neither the voters nor SMUD show any signs of backing away from their decisions.

Moreover, even if we determined that great environmental benefits would flow from the " resumed operation" of Rancho Seco, we have no authority to overturn the determination to cease operation.

Indeed, as we have previously held, the Commission lacks authority to direct a licensee to operate a licensed facility, except in extraordinary f

circumstances not present here.

2' Process Gas Consumers Group v.

U. S. Department of Aoriculture, 694 F.2d 728, 769 (D.C. Cir. 1981); see City of Ancoon, 803 F.2d at 1021 ("When the purpose is to accocplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved."); Citizens Aaainst Eprlinoton, 938 F.2d at 195 (a " proposed alternative is L

reasonable only if it will bring about the ends of the federal action").

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4 15 broadest NRC action related to Rancho Seco's decommissioning will be how that decommissioning will be accomplished.

Thus, it follows that in considering NEPA alternatives the NRC, and thus the licensee, need be concerned at present c 11y with whether the decommissioning plan provides a safe and environmentally sound decommissioning.

Shoreham, CLI-90-8, 32 NRC at 208.

The Commission does generally consider in connection with the proposal for agency action the "no-action alternative, i.e.

not taking the proposed action.

In this case, "no action" on the proposed approval of the Rancho Seco decommissioning plan would simply be not to approve the plan, or, more generally, not to approve decommissioning at Rancho Seco at all.

ECO argues that a detailed cost-benefit analysis of such a "no-action" alternative must be performed pursuant to NEpA.

ECO's theo.y appears to be that "no action" on decommissioning will preserve Rancho Seco for resumed operation.

Therefore, this argument goes, the NEPA analysis of "no action" must address the non-radiological impacts of alternative power sources that might be avoided if Rancho Seco is not decommissioned and if the plant is someday put back into operation.

The " ifs" show the defect in ECO's line of argument.

Even if we were to prevent SMUD from decommissioning, it is speculative, at best, that the alleged non-radiological impacts could be prevented.

For example, to reach ECO's desired goal --

the avoidance of pollution and its related effects, dependence on foreign oil, and a reasonably priced and reliable electricity

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source -- the NRC would have to conclude from its NEPA review l

that the decommissioning plan should be rejected; SMUD then would have to decide to resubmit the question of operating the plant to the voters or sell the plant to a willing buyer ready and able to operate Rancho Seco; and the NRC would have to find the facility 5

i safe and ready for renewed operations.

As the courts have held, "there is no need to consider alternatives of speculative

[

feasibility or alternatives which could only be implemented after significant changes in governmental policy or legislation or f

n which require similar alterations of existing restrictions...."

r NRDC v.

Callaway, 524 F.2d at 93; Shoreham, CLI-90-8, 32 NRC at 206.

Accordingly, consideration of the "no-action" alternative

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need not go into environmental impacts that could be avoided only by the highly speculative and not reasonably foreseeable resumed

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operation of Rancho Seco.

Thus, we reject ECO's attempt to i

reintroduce as "no action" the " resumed operation" alternative i

that the Commission has already declined to consider.

ECO's environmental contention does not, however, depend solely on ECO's asserted interest in resumed operation.

ECO also argues that the Environmental Report is inadequate because SMUD's discussion of radiological impacts appears to rely merely on general NRC regulations, guidance and reports.D As an example, ECO alleges that SMUD's discussion of the probability of a loss of off-site power

(" LOOP") is inadequate.

ECO argues that where the Environmental Report " states in conclusory fashion that the D

ECO Supplement at 25-26; ECO Brief at 30-31.

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' probability of a LOOP is less than once in 20 years' (ER at 5-6) there is D2 reference to a particularized study to allow independent verification of the conclusion." 26 According to SMUD, "the frequency [of a LOOP] was calculated in accordance with the guidelines of Regulatory Guide 1.15 5.... "27 However, Regulatory Guide 1.155 does not provide the complete guidelines for determining the frequency of a LOOP.

f Moreover, we do not find that the record before us demonstrates that ECO otherwise has obvious access to the analysis used to determine this probability.

Therefore, ECO's contention that there is no reference to a particularized study to allow independent verification of the conclusion that the probability of a LOOP is less than once in 20 years is admitted.

SKUD is ordered to provide ECO with the basis for its conclusion regarding the frequency of a LOOP.

ECO will then be permitted 14 f

days from service of SMUD's submittal in which to file an amended contention, if it chooses, taking into consideration the information provided by the licensee in accordance with this order.2s ECO Supplement at 26 (citing SMUD's Supplement to Rancho 26 Seco Environmental Report - Post Operating License Stage at 5-6 (Oct. 21, 1991)) (emphasis in original).

27 Licensee's Answer to ECO's Amendment and Supplement to Petition for Leave to Intervene and Request for a Hearing at 22 (July 8, 1992).

28 When filing this amended contention, ECO need not satisfy the criteria for a late-filed contention.

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la We agree with the Licensing Board that ECO's attempt to incorporate by reference staff's March 12, 1992 questions to the-l licensee was insufficient to support the admissibility of its contention that the Environmental Report is inadequate.

LBP 23, 36 NRC at 136.

Staff's questioning does not indicate oer se t

that the Environmental Report is inadequate, especially when as in this case the licensee has filed a detailed response to staff's inquiry.29 At present, the record before us on this 4

point indicates nothing more than that staff requested further information and analysis from the licensee and the licensee has I

provided a response to this inquiry.

It does not establish that a genuine dispute exists with the applicant on a material issue of law or fact with respect to the Environmental Report.

Egg 10 C.F.R. S 2.714 (b) (2) (iii).

Subsequent to the prehearing conference, ECO in its July 17, 1992 Motion to Compel Service argued that licensee's April 15, 4

1902 response was not adequate.

However, ECO was remiss for not putting forth this argument in its supplement when it relied on staff's questions.

ECO has an " ironclad obligation to examine i

the publicly available documentary material pertaining to the facility in question with sufficient care to enable it to uncover any information that could serve as the foundation for a specific Sgg Response to the Request for Additional Information in 2'

Support of the Rancho Seco Decommissioning Plan and Associated Environmental Report from J.

Shetler, Deputy Assistant General Manager, SMUD, to Seymour Weiss, NRC (Apr. 15, 1992).

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contention."3 ECO's attempt to provide further support for its t

environmental contention after the prehearing conference amounted I

to an unauthorized, untimely supplement to its contentions and, thus, will not be considered.31 4.

Safety Contentions.

1 In part IV of ECO's supplemental petition, ECO set forth a l

number of safety related contentions (IV(A) - IV(C), and IV(F)).

f In addition, the Licensing Board designated Mr. Crespo's 1

1 preference for the DECON method of decommissioning over SAFSTOR, raised in his affidavit, as a safety contention.

The Licensing Board rejected all proffered contentions.

We will address each 3

of ECO's safety related cor.tentions separately, except for IV.C, which ECO does not raise on appeal.

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33 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

ALAB-687, 16 NRC 460, 468 (1982), vacated in eart on other arounds, CLI-83-19, 17 NRC 1041 (1983).

At the Prehearing Conference ECO admitted that it had not reviewed the April 15, 1992 response filed by SMUD. See Tr. at 131-133. We take official notice of the fact that the licensee's response was available for public inspection in the Nuclear Regulatory Commission's Public Document Room by April 28, 1992, two full months prior to ECO's 2

June 29, 1992 filing of its supplement.

The Commission can take i

official notice of "a matter beyond reasonable controversy" and one that is " capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy."

shoreham, CLI-92-2 33 NRC at 75 (quoting Government of Vircin Islands v.

Gereau, 523 F.2d 140, 147 (3d Cir. 1975), cert.

denied, 424 U.S. 917 (1976) (citations omitted) ).

31 See 10 C.F.R. 5 2.714 (b) (1) ; see also vermont Yankee Nuclear Power Corp.

v.

NRDC, 435 U.S.

519, 535-36 (1978) (It is

" incumbent upon intervenors who wish to participate to structure l

their participation so that it is meaningful, so that it alerts i

the agency to the intervenor's position and contentions").

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'I 20 a.

Contention Iv(A).

I ECO contends that a large part of SMUD's decommissioning plan has been invalidated by SMUD's request to " terminate" NRC review of the hardened SAFSTOR portion of the decommissioning plan which relies on installation and use of an Independent Spent Fuel Storage Installation (ISFSI).

Although ECO cited in its supplement no support for its belief that SMUD had abandoned its application for an ISFSI, ECO's counsel indicated at the Prehearing Conference that ECO was relying on a March 20, 1992 letter from licensee that requests the NRC staff to " terminate" its review of the Rancho Seco ISFSI Safety Analysis Report.32 The Licensing Board accepted both licensee's and staff's explanation that the ISFSI application had not been abandoned; although the safety analysis with respect to the fuel storage cask, which the licensee had not selected, was suspended, the environmental review of the ISFSI was continuing.

LBP-92-23, 36 NRC at 136.

On appeal, ECO insists that ISFSI is no longer being considered, but ECO has provided no adequate basis to overturn the Licensing Board's construction of the March 20, 1992 letter.

We find that the licensee's letter cannot be read reasonably to suggest that SMUD has abandoned an ISFSI for Rancho Seco.

Moreover, ECO has not offered any other supporting documentation or facts on which it intends to rely to support this contention.

32 Tr. at 89.

SMUD provided the Board and parties a copy of the letter with its July 8, 1992 answer to ECO's Supplement.

O 21 Therefore, ECO has not shown that a genuine dispute exists with i

the applicant to support admission of its contention.

b.

Contention IVfB.

i ECO contends that the decommissioning funding plan should be reviewed in this proceeding or approval of decommissioning should be stayed pending approval of SMUD's decommissioning l

funding plan in another proceeding.

ECO Supplement at 29.

The Licensing Board rejected this contention because it determined that ECO failed to establish a material factual or legal dispute.

LBP-92-23, 36 NRC at 136-37.

Although SMUD's funding plan was submitted with its proposed i

decommissioning plan, ECO did not raise any specific contention regarding the adequacy of the funding plan or its contents before the Licensing Board.

Instead, ECO stated at the prehearing conference that it intended to challenge the adequacy of the funding plan in another proceeding.

However, there is no other i

proceeding in which ECO can challenge the adequacy of the funding plan.

ECO's confusion apparently stems from an earlier exemption from complying with the funding requirements in 10 C.F.R.

S 50.75 (e) (1) (ii) granted by staff to SMUD.33 Staff withdrew the exemption when staff realized that the exemption had been issued without honoring staff's commitment to provide an opportunity for public participation on matters related to the decommissioning of Rancho Seco.

Staff then noticed the proposed 33 San 57 Fed. Reg. 15,117 (Apr.

4, 1992).

t

22 exemption and ECO filed comments to which SMUD responded."

However, at the prehearing conference, staff counsel informed the Licensing Board, SMUD, and ECO that an exemption was not necessary now in view of the final rule permitting a case-by-case determination of the appropriate period for collecting funds to compensate for shortfall of decommissioning funds for plants like Rancho Seco that cease operation before the full term c# their operating license expires.35 Despite staff's assertion, the point remained unclear as evidenced by the Licensing Board's discussion of this contention.

The Licensing Board stated that ECO's comments would be taken into consideration by staff in staff's determination regarding whether or not to grant an exemption " consistent with a newly revised version of 10 C.F.R.

S 50.75."

LBP-91-23, 36 NRC at 137.

As a result of this confusion, although ECO stated that it was intending to challenge the adequacy of the funding plan, such challenges were not raised in this proceeding.

The only challenge ECO formally raised in this proceeding regarding the funding plan was that a funding plan must be provided with a decommissioning plan.

However, neither the Board, the licensee, nor the staff disagreed.

Approval of the decommissioning plan is contingent on the licensee having an approved funding plan.

See 10 C.F.R. S 50.82(b).

Thus, ECO's M See 57 Fed. Reg. 30,383 (July 9, 1992).

35 Sag Tr. at 140 ("In order to make a case by case determination there no longer needs to be an exemption").

I l

21 i

challenge appears to be a bare request that the staff comply with our regulations in approving the decommissioning plan.

Such a request fails to raise a genuine dispute over the legal requirements in section 50.82 and is rejected.

However, in light of the confusion regarding the exemption, ECO will be permitted 14 days from the service of this order in which to amend its contention challenging the adequacy of SMUD's proposed funding plan, consistent with this order.M

c. Contention IV.F.

ECO attempts again to incorporate by reference staff's March 12, 1992 questions to licensee.

This contention is s!tmilarly worded to the environmental contention in which ECO also attempted to incorporate staff's questions.

In this instance, instead of asserting that staff's inquiry supported the inadequacy of the environmental report, ECO asserts that the i

questions are a per se reflection of defects in the decommissioning plan.

ECO Supplement at 30-31.

On appeal, ECO maintains that it "is not incorporating the NRC questions to raise the substantive issues addressed therein, 4

but only as support for [ECO's] proposition that the application is inadequate."

ECO Brief at 40.

However, staff's March 12, 1992 inquiry does not nar se indicate that the decommissioning plan is inadequate.

Th. _1censee provided a detailed response to staff's inquiry on April 15, 1992, which supplemented the L

" When filing this amende. contention, ECO need not satisfy the criteria for a late-filed contention.

w a

24 decommissioning plan.

The mere fact that staff asked licensee to provide further information regarding the decommissioning plan, l

which the licensee did, does not establish that at present a genuine dispute exists with the applicant on a material issue of law or fact with respect to the supplemented decommissioning plan.

See 10 C.F.R. S 2. 714 (b) (2).

Both staff's questions and the licensee's response were available prior to ECO's filing of its supplemental petition.37 In its supplement ECO did not mention the April 15, 1992 response and at the prehearing conference ECO suggested that ECO had not reviewed the response,38 although ECO had an obligation to do so in formulating its contentions.3' On appeal, ECO argues that it informed the Licensing Board in ECO's July 17, 1992 Motion to Compel Service (filed after the prehearing conference) that the licensee's April 15, 1992 response, for several reasons, did not P

affect the validity of ECO's contentions.'O This attempt to add further support for its contention after the holding of a prehearing conference again constituted an unauthor14ed, untimely supplement and, thus, will not be considered."

Therefore, this s

contention was properly rejected by the Licensing Board.

l 37 See supra n.30.

j 38 Tr. at 131-133.

See supra n.30 and accompanying text.

}

3' l

'O ECO Brief at 40.

M See supra n.31 and accompanying text.

j l

o 25 d.

DECON v.

SAFSIRE.

The Licensing Board believed that an " isolated sentence" in Mr. Crespo's affidavit "might also be deemed a safety contention."

LBP-92-23, 36 ffRC at 138-39.

Mr. Crespo stated that DECON is a better method of decommissioning than SAFSTOR, the planned method, because it would best protect the public health and safety by removing the radiological hazard most procptly and it would offer better assurance that the economic costs of decommissioning would be minimized.

This general averment, absent greater specificity, is insufficient to cupport a contention.

In submitting an affirmative safety contention, as opposed to alleging a deficiency that is obvious on the face of a licensing document that is required to be filed, ECO must identify the specific bases for the contention, allege facts or expert opinion which support the contention, provide references to specific sources and documents on which ECO intends to rely to establish those facts or expert opinion, and identify a material f actual or legal dispute with the applicant. A2 The Licensing Board determined, and we agree, that ECO met none of these requirements.

On appeal ECO argues that the affidavits submitted by Mr.

Crespo and Mr. Rossin, which are attached to its supplement, identify them as experts to testify on this matter.

Even if this 42 See 10 C.F.R. 2.714(b) and (d).

Thus, there is no inconsistency between our decision with respect to ECO's LOOP contention, supra, and our decision to reject this contention here.

}

S I

I t

26 i

is so, ECO has not identified the bases for Mr. Crespo's conclusions that DECON would best protect public health and safety.

Although Mr. Crespo mentioned that DECON would most promptly remove the radiological hazard, he never identified any source documentation or data supporting the assertion that it

[

would therefore best protect public health and safety.

Moreover, he never identified the supporting documentation to explain why, l

1 even if DECON would minimize the cost of decommissioning, DECON would best protect public health and safety.'3 Thus, ECO has failed to establish a material legal or factual dispute regarding l

t the choice of decommissioning methods.

l ECO also argues that the Licensing Board incorrectly considered Mr. Crespo's assertions solely as a safety contention under the AEA.

ECO asserts that it also should have been a

considered a NEPA contention.

ECO Brief at 40.

As stated earlier, ECO bears full responsibility for any misapprehension caused by deficiency in its pleadings and cannot fault the 2

Licensing Board. See suora note 17.

This discussion in Mr.

i crespo's affidavit is not even identified in ECO's pleadings as a j

contention.

Thus, it was generous for the Licensing Board to consider it as such.

Moreover, even if this is considered a NEPA l

Particularly in the absence of an identifiable basis for

'3 the contention, it is not obvious why Mr. Crespo believes that the DECON method of decommissioning Rancho Seco would best protect public health and safety.

While DECON might remove the contaminated material from the site more quickly than SAFSTOR, i

generic studies show that with SAFSTOR the delay will result in a i

reduction in occupational dose and radioactive waste volume for some nuclear facilities due to radioactive decay.

See GEIS at i

15-5, 4-B, Table 4.3-2.

i D

n i

l 27 j

contention, presumably because Mr. Crespo asserts that the DECON 3

method would minimize economic costs of decommissioning and provide more assurance that the economic cost would be borne by those persons who received the benefits, it too does not meet the pleading requirements for an admissible contention.

As ECO points out it is not challenging the staff's environmental assessment or an environmental impact statemen; which have yet to be issued, but rather its contentions are based on alleged I

inadequacies in SMUD's Environmental Report.

ECO Brief at 29-30.

t l

However, with respect to the choice of SAFSTOR rather than DECON as a method of decommissioning Rancho Seco, neither Mr. Crespo i

(

nor ECO has identified any particular inadequacies in the Environmental Report.

This contention not only lacks specificity i

and bases, but ECO has also failed to allege any facts or submit l

any documentation in support of its conclusions.

See 10 C.F.R.

}

t q

S 2.714(b)(2).

Thus, the contention was correctly rejected.

l 1

5.

ECO's Procedural Contentions.

In addition to its contentions concerning environmental and I

safety matters ECO raised several contentions related to i

procedural aspects of the proceeding on SMUD's decommissioning plan.

ECO appeals the Licensing Board's disposition of two of these issues.

A.

Contention IVfD).

ECO avers that a decommissioning order may not be issued ii prior to the completion of an adjudicatory hearing.

As stated l

previously, the Commission is presently reviewing its process for l

1

28 review and approval of decommissioning plans, including the question as to whether it will offer a hearing on decommissioning plans and the timing of any hearing that it may decide to offer on such plans.

Thus, we have decided to leave unresolved the generic issues regarding the timing of a hearing in decommissioning cases at this time."

Accordingly, we have decided to treat this case sui ceneris and, wholly as a matter of Commission discretion, to direct staff not to issue the decommissioning order pending completion of the proceeding before the Licensing Board.

Therefore, ECO will have an opportunity to file amended contentions consistent with this decision and the Licensing Board will review the admissibility of any amended or late-filed contentions and hold a hearing or otherwise resolve any litigable matter that may be raised before issuance of the decommissioning order.

B.

Contention IVfE).

ECO states that it was entitled to, but was not provided, service of all documents filed with NRC staff by SMUD and its attorneys after ECO submitted its original petition for intervention and request for hearing.

Pursuant to 10 C.F.R. 5 2.701(b), ECO is entitled to service of all adjudicatory filings made by SMUD or the staff.45 However, this provision

" However, Section 191 of the AEA on which ECO relies is not dispositive of the question.

Section 191 specifies neither the scope nor the timing of hearing rights under the AEA.

45 The term " party" used in section 2.701 and 2.712 refers to all participants in a proceeding, even petitioners who have (continued...)

a 29 does not require service of documents exchanged between the licensee and staff in the review process."

To the extent that staff and licensee have been required in other proceedings to serve intervenors with information which was not offered for filing, this requirement did not come from a particular regulation but was based on the circumstances in each case.'T

'5 (... continued) yet to be granted intervenor status.

To interpret the regulations differently would lead to the result that petitioners would not have to be served and would not have to follow the general procedures for service of documents unless and until they were granted intervenor status.

This would clearly run counter to NRC practice.

" Information exchanged between the staff and a licensee is not considered offered for filing in an adjudication and, thus, is not subject to the provisions of 10 C.F.R. 5 2.701.

Moreover, section 2.701 does not contain prescriptive requirements for which documents must be filed in the course of an adjudication.

The petitioners have access to such information that is placed in the public document room.

However, staff and SKUD clearly have an obligation to keep the Licensing Board and ECO apprised of any relevant and material new information.

Egg Duke Power Co.

(William B. McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 626 (1973); Tennessee Valley Author ity (Browns Ferry Nuclear Plant, Units 1, 2, and 3), ALAB-677, 15 NRC 1387, 1394 (1982); Philadelchia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-765, 19 NRC 645, 656-57 (1984).

See, e.a., Carolina Power and Licht Co. (Shearon Harris

'I Nuclear Power Plant, Units 1 and 2), LBP-82-119A, 16 NRC 2069, l

2112 (1982) (the Licensing Board weighed the intervenors desire to have prompt notice of any significant development against the burden that would be placed on the licensee to provide additional i

copies of each document and determined that service was necessary but the licensee only had to serve the lead intervenors in each area rather than all of the individual intervenors).

ML20034G720

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