ML20035B571

Environ & Resources Conservation Organization Answer in Opposition to Licensee Motion for Reconsideration.* W/Certificate of Svc

ML20035B571
Person / Time
Site:	Rancho Seco
Issue date:	03/26/1993
From:	Mcgranery J ENVIRONMENTAL & RESOURCES CONSERVATION ORGANIZATION, MCGRANERY, J.P., JR.
To:	NRC COMMISSION (OCM)
References
CON-#293-13799 DCOM, NUDOCS 9304020167
Download: ML20035B571 (10)

Text

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?h BEFORE THE UNITED STATES NUCLEAR REGUIATORY COMMISSION COMMISSIONERS:

'93 T 26 M 55 Ivan Selin, Chairman Kenneth C.

Rogers James R.

Curtiss Forrest J. Remick E.

Gail De Plangue

) Docket No. 50-312-DCOM In the Matter of

)

) (Decommissioning Order)

Sacramento Municipal Utility District )

(Rancho Seco Nuclear Generating

)

Station)

)

)

ECO'S ANSWER IN OPPOSITION TO LICENSEE'S MOTION FOR RECONSIDERATION Pursuant to 10 C.F.R. 5 2.730 (c) and the Commission's Order, the Environmental and Resources Conservation Organization

("ECO") answers in Opposition to the Sacramento Municipal Utility District's ("SMUD") Motion for Reconsideration in the above-captioned matter.

SMUD has moved the Commission to reverse (a) its grant of discretionary intervention to ECO, (b) the holding that ECO had pled an acceptable contention, and (c) its Order permitting ECO to file supplementary contentions on the Decommissioning Punding Plan and the NRC staff's NEPA evaluation of the proposed Decommissioning Order.1' Jf There is no reason for SMUD to assume that the staff will issue an " environmental assessment" rather than a draft environmental i= pact statement.

Licensee's Motion for Reconsideration at 2 ("SMUD Motion").

9304020167 930326 PDR ADOCK 05000312 C

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SMUD'S OPPOSITION TO DISCRETIONARY INTERVENTION IS MERITLESS SMUD's argument against the grant of discretionary intervention to ECO belies a lack of understanding of Section 189 of the Atomic Energy Act of 1954 as amended, the Commission's jurisprudence, and the basic concept of " discretion".

Section 189 of the Atomic Energy Act expresses a broad intent to allow hearings on Commission licensing actions on

" request therefor by any person whose may be affected.

" 42 USC 5 2239(a) (1) (emphasis added).

The choice of the word "may" is not an accident; that is, there is no need to show a direct and unavoidable effect from the licensing action in order to obtain standing.

The philosophy of the Act to grant standing and allow a hearing on licensing actions pursuant to the AEA in a liberal manner has long been recognized.

However, the Commission decided not to reach the issue of ECO's " legal entitlement" to a hearing in this matter, but rather turr ed to the concept of discretionary intervention which it has developed to further assure the beneficent purposes of the AEA hearing provisions.

See e.g. Portland General Electric Co.

(Pebble Sprinos Nuclear Plant. Units 3 and 21, CLI-76-27, 4 NRC 610 (1976).

In arguing that discretionary intervention is not appropriate for ECO in the above-captioned matter, SMUD attempts to transform the enlarging language of Pebble Springs into I

restraining language and then states that "there is no legal or factual basis for this exercise of discretion", as if SMUD's

- saying it is so, makes it so.

SMUD Motion at 5.

SMUD totally ignores the fact that the Commission explicitly recognized in Pebble Sprinos that it was mentioning only "islome factors bearing on the exercise of.

" the Commission's discretion.

Emphasis added.

The very language of Pebble Sprinos makes it clear that the factors mentioned therein were not meant to be used in limited fashion but formed only a starting point for a consideration of a variety of factors in deciding granting discretionary standing.

Further, in arguing that the issue of loss of off-site power is a " patently immaterial question", SMUD calls into question its own judgment and responsibility as an NRC licensee, especially given the obvious dependence of Rancho Seco safety and Security systems on the availability of electricity.

SMUD Motion at 6.

And SMUD's allegation that its application is "for approval of a routine decommissioning plan for Rancho Seco" cannot pass the " red face" test.

SMUD Motion at 6.

Among other things, the fact that SMUD has been forced to withdrawal the

" ~ ' ' ~ ~

independent spent fuel storage installation portion of its decommissioning plan from Commission safety review indicates that this application is anything but " routine".

ECO has shown its ability to make experts available for the Commission's consideration, such as Dr. A.

David Rossin, who among other things, has been Assistant Secretary of Energy for Nuclear Energy and is the President of the American Nuclear

-4 _

Society.

As an expert, Dr. Rossin will contribute to the Commission's consideration of SMUD's application.

Moreover, in saying that the Commission has "not made the findings which must underlie a grant of discretionary intervention" SMUD (1) ignores the fact that the Commission's opinion clearly expresses its rationale for allowing discretionary intervention in this instance, (2) attempts to L

create a need for " findings" where there is no such requirement l

in NRC jurisprudence and (3) ignores the fact that the basic definition of " discretion" is the " power of free decision; i

individual judgment; undirected choice".

Webster's New Colleciate Dictionary (1949).

In short, the only reason that SMUD presents for reconsidering the grant of discretionary intervention is that SMUD would prefer that such intervention not be granted.

SMUD's Motion for Reconsideration of the grant of discretionary intervention should be denied.

II.

SMUD MISUNDERSTOOD THE COMMISSION'S ADMISSION OF THE CONTENTION.

In Sacranento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI 93-3, 37 NRC (March 3, 1993)

I (Slip Op. at 17), the Commission held that "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".

In CLI 3, the Comnission simultaneously remedied that SMUD failure by ordering SMUD to provide ECO with the bases for SMUD's

I determination in its Environmental Report that the probability of a LOOP is less than once in 20 years.

Slip Op. at 32.

Therefore, contrary to SMUD's allegation, this was not a

" tentative holding" but rather a definitive holding and a i

definitive remedy.

SMUD Motion at 7.

SMUD misses the point in stating that ECO's original contention " fails to show that a genuine d.ispute exists with the l

applicant on a material issue of law or fact",

Id.

The issue l

was that, until SMUD makes the bases of its bare conclusion 1

available, neither ECO nor the Commission can' determine whether there is any material issue of law or fact.#

Similarly, SMUD's argument that the issue is unimportant because it was not discussed at the pre-hearing conference and not explicitly addressed in the Licensing Boards Prehearing Conference Order is specious, because the Licensing Board did not allow ECO's Amendment and Supplement to the Petition for Leave to Intervene and Request for Hearing filed June 29, 1992, thereby excluding the LOOP issue from the pre-hearing conference.

Contrary to SMUD's assertion, ECO did appeal the striking of that contention to the Commission.

SMUD's further argument as to the materiality of LOOP constitutes the submission of evidence without documentation or 2/

Insofar as SMUD intends to imply that ECO's Petition shall be dismissed if it does not submit a contention with respect to LOOP, SMUD errs.

SMUD Motion at 7 n.6.

That portion of the Commission's Order addresses a failure by ECO to file any of the amended or new contentions which the Order in CLI-93-3 allows for.

l affidavit, which should not be considered by the Commission'but rather will be part of the matters to be considered by the Atomic.

i Safety and Licensing Board pursuant to the Commission's Order.

l SMUD Motion at 8-9.

{

Whether ECO will be able to frame an admissible contention with respect to LOOP after review of the documentation l

which the Commission ordered SMUD to provide ECO (as well as a i

consideration of other related matters) is the issue.

The Commission has properly delegated that issue to the Atomic Safety and Licensing Board.

SMUD has misunderstood and mischaracterized the Commission's holding with respect to LOOP and its Motion for Reconsideration should be denied in this respect also.

l III. SMUD ARGUMENTS WITH RESPECT TO THE DECOMMISSIONING FUNDING PLAN AND THE STAFF NEPA DOCUMENT ARE ALSO WITHOUT MERIT.

I A.

The Decommissioninc Fundinc Plan i

The heart of SMUD's argument against allowing ECO to submit contentions with respect to the Decommissioning Funding Plan is that, when SMUD was pursuing approval of that plan I

pursuant to 10 CFR S 50.12, no hearing would have been allowed' and that it is " patently unfair and prejudicial to licensee" for the Commission to allow a hearing at this time.

SMUD Motion at 13.

3/

This ignores the basic proposition that there are different types of " hearings" and that the ability to comment on the exemption request does constitute a judicially reviewable form of

" hearing".

SMUD Motion at 13 n.12.

. _ _ _ _ _ _ _ _._______________ _ ______ _____ _ This, of coarse, flies in the face of SMUD's earlier acknowledgement in its Motion that the Commission has

" discretionary authority to hold hearings and to permit participation in our proceedings" at anytime.

SMUD Motion at 3 (citation omitted).

SMUD's whole approach also ignores the fact that the Commission's basic responsibility is not to ease approval of anything SMUD wants but ratner its basic responsibility is to protect the health and safety of the publid'.

Similarly, SMUD should not be allowed to rely on the fact that ECO "did not attempt to supplement this proposed

[ Decommissioning Funding Plan) contention" after the prehearing conference since SMUD successfully opposed all attempts by ECO to supplement the record after the prehearing conference.

It is also relevant that SMUD was not able to cite a-single judicial or NRC precedent or any other authority in support of its argument against allowing the consideration of contentions with respect to the Decommissioning Funding Plan.

l l

The Commission should also deny SMUD's Motion for Reconsideration with respect to the Decommissioning Funding Plan.

i ff Likewise, SMUD's reliance on a regulation published five days before the pre-hearing conference and long after the time allowed for ECO to submit contentions is without merit.

SMUD Motion at 12.

I

.8-i B.

Staff Environmental Review SMUD's Motion with respect to the Commission allowing ECO to offe proposed contentions with respect to the NRC Staff Environmental document is totally without merit.

SMUD's principal objection seems to be to the commission's decision to allow a pre-effectiveness hearing on the NEPA issues in this case.

CLI-9 3 -3, Slip Op. at 32.

However,

)

the Commission has on many occasions stated.that it has discretion with respect to some licensing actions to allow a pre-effectiveness or post-effectiveness hearing in its sole SMUD not only ignored these Commission precedents, discretion.

but also failed to cite any judicial or NRC decision (or any other authority for that matter), which would indicate that a pre-effectiveness hearing would not be appropriate in the circumstances in this case.

r Finally, SMUD is misleading in characterizing the Generic Environmental Impact Statement on Decommissioning Nuclear Facilities, NUREG-0586, as the " applicable staff environment review documentation.

SMUD Motion at 14-15.

While NUREG-0586 is arguably a " relevant" document, it is surely not a site-nor is it a document specific or reactor-specific document, addressing the particulars of the SMUD application for a The NRC's regulations require a Decommissioning Order.

particular NEPA document to be developed by the Staff with That document does not respect to SMUD's particular application.

yet exist.

t i

I

I L i In short, the Commission's Order did nothing more than I

guarantee ECO the right to amend its NEPA contentions with respect to the NRC staff NEPA documentation on SMUD's application, which right is guaranteed by the Commission's regulations.

Egg 10 CFR S 2.714 (b) (2) (iii) (1992).

And SMUD did

[

not even allege but much less show cognizable prejudice from the I

i Commission's exercise of its discretion in assuring ECO a pre-l effectiveness hearing on the NEPA issues.

For all of these reasons, SMUD's Motion for r

Reconsideration with respect to the Commission's decision on the i

NEPA issues should be denied.

CONCLUSION Wherefore, ECO respectfully urges the Commission to deny SMUD's Motion for Rcconsideration in toto.

I Respectfully submitted, j

/

March 26, 1993 A-1 N

Tataes P.

McGranery//Jr.

S6ite 500 F#

1255 Twenty-Third St.,

N.W.

" ~ ~ ~ ~ _

Washington, D.C.

20037 (202) 857-2929 Counsel for Environmental and Resources Conservation Organization 1

~.

BEFORE THE UNITED STATES NUCLEAR REGULATORY COMISSION COMMISSIONERS:

Ivan Selin, Chairman Kenneth C.

Rogers James R.

Curtiss l

Forrest J. Remick tp'

'O

,, CO E.

Gail De Plangue

) Docket No. 50-312-DCOM In the Matter of

)

(

) (Decommissioning Order) p 1

Sacramento Municipal Utility District )

(Rancho Seco Nuclear Generating

)

Station)

)

h'

)

\\

CERTIFICATE OF SERVICE I hereby certify that one copy of Environmental and Resources Conservation Organization's Petition for ECO'S ANSWER g

IN OPPOSITION TO LICENSEE'S MOTION FOR RECONSIDERATION of the Prehearing Conference is being served upon the following by by first-class mail, postage prepaid on this 26th day of March, 1993:

Office of Commission Appellate Administrative Judge Adjudication Charles Bechhoefer, Chairman U.S.

Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.

20555 U.S.

Nuclear Regulatory Commission Washington, D.C.

20555 Administrative Judge Administrative Judge Richard F.

Cole Thomas D. Murphy Atomic Safety and Licensing Atomic Safety and Licensing Board Board s'

5 U.S.

Nuclear Regulatory U.S.

Nuclear Regulatory Commission Commission Washington, D.C.

20555 Washington, D.C.

20555 Edwin J.

Reis, Esq.

Thomas A.

Baxter, Esq.

[$

Charles A.

Barth, Esq.

David R.

Lewis, Esq.

Office of the General Counsel Shaw, Pittman, Potts &

U.S.

Nuclear Regulatory Trowbrige Commission 2300 N Street, N.W.

Washington, D.C.

20555 Washington, D. C.

20037 0

267/7 L

Am

,4 J a m e s 'P. McGranerygDr.

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