ML20035E003
| ML20035E003 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 04/12/1993 |
| From: | Barth C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#293-13871 DCOM, NUDOCS 9304140172 | |
| Download: ML20035E003 (24) | |
Text
4
/3 77/
l April 12,1993 YN UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'93 AIT 12 PS :40 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i
T In the Matter of
)
)
Docket No. 50-312-DCOM SACRAMENTO MUNICIPAL UTILITY
)
DISTRICT
)
(Decommissioning Plan) l
)
(Rancho Seco Nuclear Generating Station)
)
NRC STAFF RESPONSE TO ECO'S CONTENTIONS REGARDING THE FUNDING OF DECOMMISSIONING l
INTRODUCTION After a public referendum, conducted on June 6,1989, came out against the licensee Sacramento Municipal Utility District's (SMUD's) continued operation of the Rancho Seco Nuclear Generating Station, SMUD ceased the production of power at Rancho Seco, defueled the reactor and had its license changed to a possession-only license (POL), which does not allow operation of Rancho Seco.2 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3, 37 NRC _, at 2 l
(March 3,1993). On May 2,1991, the licensee made application for approval of its proposed Decommissioning Plan (DP) for on-site storage (SAFSTOR) of Rancho Seco, followed by decontamination of the facility. Id.
l 8 ECO sought to intervene in the POL proceeding, but was found not to have i
standing. See CLI-92-2,35 NRC 47 (1992), appealpending, No. 92-70202 (9th Cir.
l April 2,1992).
l I
l 9304140172 930412 0
PDR ADOCK 05000312 mD C
PDR J
_~
The NRC published a Notice of Opportunity for Hearing on the DP, and an l
associated environmental report, on March 19, 1992. 57 Fed. Reg. 9577.
ECO petitioned to intervene, and a prehearing conference was held on this petition on July 17, 1992. Id. at 3.
The Licensing Board, in LBP-92-23, concluded that ECO had not demonstrated standing, and that it should not be afforded discretionary intervention. Id.
On March 3,1993, The Commission in CLI-93-3, reversed LBP-92-23, in part, granting ECO discretionary intervention, and as here material, providing that ECO might amend its contention on the adequacy of SMUD's decommissioning funding plan.
CLI-93-3, slip op. at 33. The Commission recognized that the funding plan had been submitted as part of the DP, and that ECO had only submitted a deficient contention on decommissioning fund, which maintained that a funding plan had to be submitted with a DP. Id. at 21-22. However, the Commission stated that ECO might have been confused about when contentions were due on the adequacy of the funding plan, in contrast to the rest of the DP, and allowed ECO "to amend its contention challenging the adequacy of SMUD's proposed funding plan." Id. at 22-23. On March 23,1993, ECO filed its proposed amended contention on the decommissioning funding plan.2 For the reason set forth below, the Staff opposes the admission of this proposed amended contention.
2 "ECO's Contention on Licensee's Proposed Decommissioning Funding Plan" (hereinafter "ECO's Contention").
i DISCUSSION
\\
ECO HAS FAILED TO FILE A PROPER CONTENTION FOR LITIGATION ON THE DECOMMISSIONING FUNDING PLAN A.
Recuirements for Contentions The substantive requirements for admissible contentions are set forth in 10 C.F.R. 6 2.714(b)(2), which was revised effective September 11, 1989, to provide:
(2) Each contention must consist of a specific statement of the i
issue of law or fact to be raised or controverted.
In addition, the petitioner shall provide the following information with respect to each contention:
(i)
A brief explanation of the bases of the contention.
(ii) A concise statement of the alleged facts or expert opinion which suppon the contention and on which the petitioner intends to rely in proving the contention at the hearing, together with references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion.
j (iii)
Sufficient information (which may include information pursuant to paragraphs (b)(2)(i) and (ii) of this section) to show that a genuine dispute exists with the applicant on a material issue of law or fact. This showing must include references to the specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.
Subsection (d)(2) further provides that a presiding officer or adjudicatory board designated to rule on the admissibility of a contention shall refuse to admit a contention i
if(a) the contention and supporting material fail to satisfy the requirements of 10 C.F.R. 6 2.714(b)(2), or (b) "the contention, if proven, would be of no consequence in the proceeding because it would not entitle petitioner to relief." 10 C.F.R. $ 2.714(d)(2);
see Rules of Practicefor Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 54 Fed. Reg. 33168 (August 11,1989).
The revised 10 C.F.R. f 2.714 raised the threshold showing for the admission of contentions by requiring the proponent to supply information showing the existence of a genuine dispute of law or fact. 54 Fed. Reg. 33168; Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-942, 32 NRC 395, 426 n.104 P
(1990). As the Commission explained in the Statement of Consideration:
Under these new rules an intervenor will have to provide a concise statement of the alleged facts or expert opinion which support the contention and on which, at the time of filing, the intervenor intends to l
rely in proving the contention at hearing, together with references to the L
specific sources and documents of which the intervenor is aware and on which the intervenor intends to rely in establishing the validity of its j
contention. This requirement does not call upon the intervenor to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention.
i In addition to providing a statement of facts and sources, the new rule will 1
l also require intervenors to submit with their list of contentions sufficient l
information (which may include the known significant facts described l
above) to show that a genuine dispute exists between the petitioner and the applicant or licensee on a material issue oflaw or fact. This will require the intervenor to read the pertinent portions of the license application, including the Safety Analysis Report and the Environmental Report, and to state the applicant's position and the petitioner's opposing view. When l
\\
. i the intervenor believes the application and supporting material do not address a relevant matter, it will be sufficient to explain why the application is deficient.
Apart from imposing additional requirements on the threshold showing for proponents of contentions, other Commission case law under the old rule remains applicable to board determinations regarding whether a proposed contention is admissible.
See 54 Fed. Reg. 33169-71. For example, the revised rule is fully consistent with longstanding case law holding that the contention basis requirements of 10 C.F.R. 6 2.714(b)(2) are (1) to assure that the contention in question raises a matter appropriate for adjudication in a particular proceeding, (2) to establish a sufficient foundation for the contention to warrant further inquiry into the subject matter addressed by the assertion, and (3) to put the other parties sufficiently on notice of the issues so that they know generally what they will have to defend against or oppose. See Philadelphia Electric Co.
(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1976).'
' The revised rule, however, overturned those cases holding that petitioners are not required to describe facts which would be offered in support of a proposed contention.
54 Fed. Reg. 33170, citing Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130,6 AEC 423,425-26 (1973); Houston Lighting & Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542,546-49 (1980).
l 1 '
The amended rule requires the submission of alleged facts sufficient to demonstrate that a genuine dispute of law or fact exists. 54 Fed. Reg. 33170.4 The Commission noted that this requirement was consistent with Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687,16 NRC 460,468 (1982), vacated in part on other grounds, CL1-83-19,17 NRC 1041 (1983), where the Appeal Board stated:
[A]n intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that could serve as the foundation for a specific contention.
Neither Section 189a of the Atomic Energy Act nor i 2.714 of the Rules of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or Staff.
In sum, to set forth an admissible contention under the new rule, a petitioner must l
examine publicly available information to provide some factual basis for its position and I
demonstrate that there exists a genuine dispute between it and the licensee.
54 Fed. Reg. 33171. The Commission's regulations preclude "a contention from being j
admitted where an intervenor has no facts to support its position and where the intervenor contemplates using discovery or cross-examination as a fishing expedition which might produce relevant supporting facts." Id.; see also BP1 v. AEC, 502 F.2d at 429. A person or organization seeking admission to a licensing proceeding is expected to have l
read "the portions of the application (including the applicant's safety and environmental
- An adequate basis for a contention is not established by simply referencing a large number of documents, but requires a petitioner to clearly identify and summarize the facts on which it relies. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-20,21 NRC 1732,1741 (1985), rev'd and remanded on other grounds, CL1-86-8,23 NRC 241 (1986).
reports) that address any issues of concern to it and demonstrate that a dispute exists between it and the applicant on a material issue of fact or law." 54 Fed. Reg. 33,171.
Normally, in an NRC administrative proceeding, the notice and opportunity for hearing published in the FederalRegister establishes the parameters for issues which may be raised. See Public Service Co. offndiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316,3 NRC 167,170-71 (1976); see also Wisconsin Electric Co.
(Point Beach Nuclear Plant, Units I and 2), ALAB-739,18 NRC 335,339 (1983).
This is not the situation at bar. Here the Commission's decision in CLI-93-03 establishes the parameters within which issues may be raised to be litigated. In this regard the pertinent language of the Commission is quoted below.
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. 6 50.82(b). Thus, ECO's 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 fourteen 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. Slip op. 22-23 [ Footnote omitted].
The Commission in CLI-93-3, did not provice for a general opportunity to relitigate matters contained in the Decommissioning Plan, but only matters in the -
Decommissioning Funding Plan, itself. Id. at 21-23, 33. The petitioner had an
I
. obligation to formulate matters pertinent to other portions of the Decommissioning Plan at the time for the filing of contentions on that Plan. A petitioner generally has an obligation to file contentions at least 15 days before the special or first prehearing I
conference if such information exists upon which to premise such a contention.
l 10 C.F.R. @ 2.714(a)(3); Duke Power Co. (Catawba Nuclear Power Station, Units 1 and l
2), CLI-83-1917 NRC 1041,1048 (1983). The Commission, in allowing the petitioner i
further time to file contentions on the decommissioning funding plan, because the petitioner might have been confused when such contentions were due, was not extending the time or giving an excuse to file contentions pertinent to the factual basis of the Decommissioning Plan itself at this late date. See CLI-93-3, at 21-23. There was no
" confusion" as to when contentions on other portions of the Decommissioning Plan were due. Although the Staff recognizes that the viability of the funding plan to some extent depends on assumptions in the Decommissioning Plan, the Commission in providing for the filing of contentions on 'he funding plan was not reopening the entire proceeding to allow the filing of contentions on the Decommissioning Plan, upon which contention were i
l l
due almost a year ago. Id. Just as a petitioner may not file late-file contentions on the basis of information in a recently released document, when it earlier has access to that information, so ECO may not file a contention in the guise of an attack on the funding plan, when it could have raised the earlier by filing a contention on the DP itself. See Catawba,17 NRC at 1048-51; see also Texas Electric Co. (Comanche Peak Steam l
Electric Station, Unit 2), CLI-93-4, 37 NRC _, slip op, at 11-12, (March 10,1993)
(reiterating that contention must be filed when a petitioner is first aware of info mation).
1
. The intervenor may not " bootstrap" itself into now being able to file contentions which deal with the adequacy of the Decommissioning Plan by claiming these matters affect the validity of the funding plan.
Further, it is also noted that the intervenor may not raise matters here that are generally prohibited from litigation in NRC proceedings, such as armed attacks by enemies of the United States. See 10 C.F.R. f 50.13. Similarly, the intervenor may not use this proceeding for litigating matters that do not relate to decommissioning under the i
Commission's regulations, such as funding for the disposal of spent fuel, funding of insurance for accidents, or confidence that a repository will be available for high level waste in the future. See 10 C.F.R. f f 50.54(w), 50.54(bb), 50,75(n.1), 51.23, 51.95(b). The Commission in providing additional to proffer an amended contention on the funding plan, did not waive these regulations or provide that were not applicable. See CLI-93-3, at 21-23.
Thus, the admissibility of ECO's contention is to bejudged against the permission given in CLI-93-3 to file an amended contention challenging the adequacy of the decommissioning funding plan, the Commission's Rules of Practice governing the admission of contentions,10 C.F.R. f.2.714, and other regulations affecting the 4
a admission of contentions.
B.
ECO's Contention And Its Bases ECO allegedly sets forth its basic contention at the bottom of page 1 and top of page 2 of its March 22,1993, filing. There are four conclusions by ECO that the funding plan is inadequate. These four bare conclusions are so broad as not to meet the
I l.
pleading requirements. 10 C.F.R. 6 2.714(b)(2); CLI-93-3, at 8-9,25. ECO then sets forth fourteen numbered " bases" which, in ECO's judgment, are defects in the funding i
l plan. The staff will address each of these fourteen bases below within the framework of 10 C.F.R. f 2.714(b)(2) and the Commission's specific authorization in CLI-93-03 for a new decommissioning funding contention. Prior to doing so, the Staff notes that intervenor provides no basis which meets the requirements of 10 C.F.R. 5 2.714(b)(2),
and no basis which falls within the bounas ofissues authorized to be raised by CLI-93-3.
Specifically, the Commission stated:
"ECO will be permitted... to amend its contention challenging the adequacy of SMUD'S proposed funding plan..." Slip op.
at 23.
Not one of ECO's contentions reference the decommissioning funding plan (which is Appendix C to the Decommissioning Plan).
No funding income figure is referenced and alleged to be in error.
No expenditure figure is referenced and alleged to be in error. Appendix B to the Decommissioning Plan states where the funds are to be spent.
No section of 10 C.F.R. 6 50.75 or 6 50.82 is alleged to be violated by the Decommissioning Funding Plan.
No contention complies with 10 C.F.R. f 2.714(b)(2)in that no persons are identified in ECO's March 22,1992 filing who have any expertise in finance, utility finance, economics, or large industrial facility demolition.
No summary of what ECO will proffer at hearing by expert testimony or by reliable documents is identified in its March 22,1993, filing.
No where does ECO provide sufficient information to show that a genuine issue of fact exists regarding the funding plan.
. The Commission remanded this proceeding and provided that the intervenor might submit contentions on the licensee decommissioning funding plan. Such funding plans are judged under the provision of 10 C.F.R. 6 50.75 and 50.82(c). Yet, ECO nowhere alleges that the funding plan lacks sufficient detail or an identification of a source of sufficient source of funds to meet these regulations. Without such an allegation, ECO does not show it would be entitled to any relief on the contention and the contention may not be admitted for litigation. See 10 C.F.R. 5 2.714(d)(2).
Moreover, ECO has stated "that it will rely on the expert opinions of Dr. A. David Rossin and/or David R. Crispo to support ECO's contention.10 C.F.R. 1 l
6 2.714(b)(2)(ii)(1992)." Reference is then made to qualifications of these persons j
previously provided to the Licensing Board by affidavit. ECO's Contention, at 2.
However, these affidavits do not in any way show that either of these individuals knows anything about financing, costs, SMUD's resources, utility rates or even has examined the SMUD funding plan here in issue. Plainly ECO has not provided sufficient support for its contention to require further inquiry, and the matter should be dismissed on its face. See Comanche Peak, CL1-93-4, slip op. at 12.
Each and every one of ECO's bases for the contention should be denied admission because they fail to conform to the pleading requirements of 10 C.F.R. 6 2.714(b)(2) and are beyond the scope of contention authorized to be considered by the Commission in CL1-93-03. The bases will be individually, discussed below, retaining ECO's numbering system.
Basis 1.
ECO alleges SMUD will not be able to continue to finance the plan because its long-term debt is increasing at the rate of 8.8% per year. ECO Contention at 2-3. No reference is made to the provisions for funding in the financing plan. No person is identified by ECO who has expertise in utility financing who will testify at hearing that the increase of 8.822% in long-term debt of SMUD from 1990 to 1992 can be extrapolated so as to render SMUD unable to continue to fund the Decommissioning Plan. No basis is cited for the statement that "a tidal wave of future debt [will] severly
[ threaten) the viability of the funding plan." See ECO Contention at 3.
Without accounting for revenues, through SMUD's ability to increase its rates, this statement is meaningless, and does not provide a basis to litigate whether the SMUD funding plan meets NRC requirements.
Further, no relevance is shown in the statement that SMUD "almost doubled" its purchased power from 1988 to that purchased in 1991. ECO Contention at 3. However, the SMUD 1991 Annual Report, cited for this statement, also shows that only 26% more i
power was purchased by SMUD in 1991 than in 1987. Id. A " numbers game" does not show that power purchases makes the financing plan less viable. No nexus is shown between the power purchases and the decommissioning funding plan. Basis 1 to the contention must be rejected.
Basis 2. ECO alleges that since the design of the independent spent fuel storage installation (IFSFI) has been withdrawn and its cost unknown, the funding plan is deficient. ECO Contention at 3. The Commission's regulations provide that the storage and disposal of spent fuel is not a part of a decommissioning plan and are not relevant
t
' l to the funding plan for that decommissioning. 10 C.F.R. f 50.75, n.1; 10 C.F.R.
Q 50.54(bb). " Decommissioning activities do not include the removal and disposal of spent fuel..." Supplementary Information Preceding the Decommissioning Rule, i
53 Fed. Reg. 24019, (June 27,1988). The cost of storing spent fuel is beyond the purview of the issues that may be raised pursuant to CLI-93-03. Also, no expert is identified, no precis of testimony or other evidence proffered, to show that SMUD will not be able to fund the Decommission Plan unless purportedly increased IFSF1 costs are factored in. See 10 C.F.R. 6 2.714(b)(2).5 Bases 2 of the contention must be rejected.
Easis 3, ECO alleges that the " cost of decommissioning was also premised upon approval [of the plan] by 'mid-1992'" and since NRC has not done so, the funding plan l
is inadequate. ECO Contention at 3-4. This is a non sequitur. There is no basis given l
upon which it could be concluded that the costs of decommissioning by SAFSTOR until 2008 will be affected by when the NRC approves the plan. There is no allegation that the actions required between now and 2008, or their cost, will be any different if approval of the Decommissioning Plan is delayed. There is no nexus shown between the date of approval of the plan and the costs of decommissioning.
Further, there is no basis for the statement that the costs were " premised" upon a 1992 approval of the plan. Further, no basis is given for allegation concerning poor management qualifications and this statement provides port for the contention.
Basis 3 for the contention should be rejected.
5 Moreover, it is not even contended with requisite basis, that the IFSFI costs will rise.
1 Basis 4.
ECO alleges that projected decommissioning cost increases reflect on SMUD management and competence and that SMUD should be required to make semi-l annual reports to the NRC on decommissioning funding. ECO Contention at 4. The basis identifies no defect in the Decommissioning Plan or any lack of compliance with 10 C.F.R. 6 50.75 or 6 50.82.
It, further, is an impermissible attack upon the Commission's regulations, contrary to 10 C.F.R. f 2.758(a).
10 C.F.R. 6 50.75(b) requires that licensees annually review their decommissioning funding plans. 10 C.F.R.
@ 50.82(c)(2) provides that decommissioning plans for SAFSTOR, as here involved, include:
Means... for adjusting costs estimates and associated funds over the storage and surveillance period.
There is no allegation that this is not being done. No violation of regulation is alleged and Basis 4 for the contention cannot be admitted for lingation.'
Basis 5. ECO alleges that SMUD's failure to achieve projected energy use saving through its Conservation and lead Management Program shows the unreliability of the decommissioning fund program. ECO contention at 5-6. No nexus is shown between one program and another. Although, ECO gives a reference to SMUD's 1991 Load Forecast,7 at 13, to support its statement that some undefined savings are to come from load management to pay for decommissioning, the citation does not support the statement.
6 Further, ECO has no witnesses proffered who has qualifications to testify that SMUD cannot adequately fund decommissioning.
7 This document is Attachment 5 to Licensee's Response to ECO's Decommissioning Funding Plan Contention, dated April 3,1993.
I I
No relevance is shown between the load management program and SMUD's source of funds for decommissioning. This basis also ignores SMUD's ability to set rates to cover variations in its operating expenses. See SMUD Decommissioning Plan, Appendix C,
- r. 4. Basis 5 of the contention must be rejected.
i Basis 6.
ECO alleges that the Decommissioning Plan, and thus the l
decommissioning funding plan, is inadequate because adequate provision is not made for physical and personal security. ECO contention at 5-7. These are matters that go to the Decommissioning Plan, upon which contentions were due last summer, in contrast to the decommissioning funding plan. The Commission's opinion in CL1-93-3, at 21-23, provides no basis for the admission of a contention at this time whose gravamen is an alleged defect in the Decommissioning Plan, in contrast to an alleged defect in the decommissioning funding plan. Moreover, ECO has not cited the provisions for security or fitness-for-duty in Decommissioning Plan and specified why they are inadequate, as j
1
\\
required by 10 C.F.R. f 2.714(b)(2).
Further, the Licensee was given an exemption to the NRC's security regulations, 10 C.F.R. { 73.55 (in view of the existing POL), on July 5,1991. 56 Fed. Reg. 32,453 (July 16,1991). ECO did not seek to participate in the grant of that exemption from security requirements, and cannot raise the issue here.
1 To the extent ECO is seeking to litigate the effects of possible acts of terrorism, that issue is foreclosed by 10 C.F.R. 6 50.13.
To the extent ECO might be seeking to litigate the need to comply with " fitness-for-duty" regulations at Rancho Seco, those regulations only apply to a licensee who is
authoric.ed to operate a nuclear power plant.
10 C.F.R. 5 26.2.
They have no application here where the issuance of the POL eliminated the authority of SMUD to operate Rancho Seco. The obligation to meet " fitness-for-duty' regulations cannot be raised in this Decommissioning Plan proceeding.
Further, no connection is shown between security and " fitness-for-duty" and the funding of decommissioning. The lack of need, under applicable regulation, for full security and " fitness-for-duty" programs reduces costs, and thus the amount of decommissioning funding needed. Thus, even if these matters could have been raised in connection with decommissioning itself, they cannot be raised in connection with the decommissioning funding plan. Basis 6 of the contention may not be admitted for litigation.
Basis 7.
ECO alleges that the decommissioning funding plan is inadequate because the NRC is considering an amendment to the Rancho Seco POL license in regard to personnel who staff SMUD. ECO Contention at 7. There is no showing that this amendment has anything to do with the adequacy of the decommissioning funding plan.
No alleged fact, expert witness, or information is cited to show any material dispute of fact or show that this basis relates to decommissioning funding.
See 10 C.F.R.
f 2.714(b)(2).
Moreover, to the extent ECO seeks to challenge the POL, that matter, as ECO recognizes, is before the Ninth Circuit Court of Appeals, and is not before this Licensing Board.
Basis 7 of the Contention may not be admitted for litigation.
y
. 4 Basis 8. ECO alleges the decommissioning funding plan is inadequate because it does not have measures to identify on-site areas containing radioactivity.
ECO Contention at 7-E. This is an attack on the Decommissioning Plan, which is almost a year late, and not a contention dealing with the inadequacy of the funding plan, which the Cr 1 mission permitted in CLI-93-3. As the Contention states: "Neither ECO nor the l
Commission can have assurance that SMUD's Decommissioning Plan is in compliance."
l Id. at 7. A contention on the Decommissioning Plan is late.
Further, there is no information to show a nexus between this alleged fault in the decommissioning plan and the fundmg plan. See 10 C.F.R. I 2.714(b)(2). In addition, l
there is no information to show that any area of contamination existed which was not identified or which was required to be identified before placing Rancho Seco in SAFSTOR.8 Basis 8 of the contention may not be accepted for litigation.
Basis 9.
ECO alleges that the decommissioning funding plan is insufficient because decommissioning is premised on a single airborne pathway for the release of radioactivity. ECO Contention at 8. Again, this is an attack on the Decommissioning Plan which should have been submitted before last July's prehearing conference, and not an attack on the funding plan as permitted in CLI-93-3. No fact, witness or information i
is cited to show this is a matter which could prevent implementation of the funding plan.
See 10 C.F.R. S 7.214(b)(2).
810 C.F.R. 6 50.82(d) provides: "For decommissioning plans in which the major dismantlement activities are delayed by first placing the facility in storage, planning for these delayed activities may be less detailed. Updated detailed plans must be submitted and approved prior to the start of these activities."
l i i 1.
l i
Further, to the extent ECO seeks to raise beyond design basis accidents, it has not set out the scenario of such an accident to show that it should be considered here. See l
Vermont Yankee Nuclear Pourr Corp. (Vermont Yankee Nuclear Power Station),
ALAB-876, 26 NRC 277, 283-85 (1987). To the extent it seeks to litigate a release of i
radiation caused by terrorism, it may not do so under 10 C.F.R. 6 50.13.
i Basis 9 of the contention may not be admitted for litigation.
Basis 10.
ECO alleges that the Decommissioning Plan, and thus related i
l decommissioning funding plan estimates, are inadequate for determining radionuclide
)
inventories and levels of spent fuel sludge. ECO contention at 8-9. This basis deals solely with the technical basis of matters in the Decommissioning Plan, and not with funding matters. Id. Again, by its terms this basis does not go to the adequacy of the funding plan, but to the adequacy of the Decommissioning Plan, and no provision was made for its late admission for litigation. See CLI-93-3, at 21-23.
Further, no nexus is given between the alleged technical error and whether the funding plan, which is subject to updating under 10 C.F.R. 6 50.82(c),is in error in any significant manner.
No fact, witness or information is identified which could lend suppon to an allegation that this matter affects the decommissioning funding plan in any material way 4
or entitles intervenor to any relief. See 10 C.F.R. 6 2.714(b)(2), (d)(2).
Basis 10 of this contention may not be admitted for litigation.
Basis 11. ECO has alleged that the decommissioning funding plan is deficient as SMUD has not provided a long-term financing plan. These are no requirements in
!l*.
10 C.F.R. f f 50.75, 50.82, or elsewhere, that SMUD supply such a plan. What is required that a decommissioning funding plan be submitted in conformity with hTC regulations. ECO does not allege that such a plan has not been filed.
ECO has ignored that SMUD "has full legal authoQ, to establish its own rates and charges and, therefore, has legal authority to recover its [ decommissioning] costs from ratepayers." SMUD's May 1991 Revised Financial Assurance Plan, at 4.' ECO has constantly avoided recognizing that SMUD's ability to set its own rates and so fund decommissioning. As indicated in note 5 to SMUD's 1991 Annual Repon, SMUD intends to collect the remaining unfunded decommissioning liability of $221 million (i.e.,
$318.8 million total estimated decommissioning cost less $97.8 million current decommissioning fund balance) from ratepayers over the next sixteen years. This requires approximately $13.8 million from ratepayers each year, which is only 2.1% of the $644.4 million in total operating revenues that SMUD collected in 1991. Even if j
decommissioning costs doubled from their current estimated cost - a highly unlikely increase -- rates would increase only about 2% more for the average customer.
The financial community has expressed confidence in SMUD's future financial viability by confirming its very good "A" bond rating from Moody's.
Moody's Municipal and Government News Report, at 2604 (July 14,1992). As the variables contributing to electricity supply and demand change, there is no showing that SMUD
' SMUD Decommissioning Plan, Appendix C.
cannot take adequate steps to match supply with demand at reasonable prices. But even if SMUD had not taken these steps, its rate-setting authority would be more than adequate to compensate for any funding deficiencies.
Moreover, ECO has identified no person with requisite expertise that will testify that an alleged lack of "over-all long term planning," will prevent SMUD from funding the Decommissioning Plan.
Basis 11 of the contention cannot be admitted for litigation.
i l
Basis 12. ECO alleges that the need for decommissioning funding is inadequate as technical specifications for the spent fuel pool water level and temperature are inadequate. ECO Contention at 9-10. Again, ECO is attempting to litigate the adequacy of the Decommissioning Plan, and not the adequacy of the decommissioning funding d
plan, which it fails to reference.
Any question on the adequacy of the technical specifications or Rancho Seco in a defueled status had to be raised in the POL proceeding or upon consideration of the technical elements of the Decommissioning Plan. The i
litigation on the decommissioning funding plan cannot be sed as a "back-door" under which ECO can haw the Licensing Board now consider the POL or the technical adequacy of the Decommissioning Plan.
ECO has provided no citation to fact, information or an expert witness which would show that alleged faults in the technical specifications for the spent fuel pool would affect the decommissioning funding plan in a material manner. Basis 12 to the decommissioning funding plan contention may not be admitted for litigation since it does not challenge the adequacy of that plan.
l
Basis 13. ECO alleges the funding plan is inadequate as it "was premised, among other things, on growth through interest earnings at rates that are now unrealistically high." ECO Contention, at 10. ECO has made no reference to the funding plan and, of course, provided no person with expertise in econometric forecasting, and provide no precis of testimony that the funding plan is inadequate because of some expected rate of return shown in the plan will not be achieved. No basis is given to admit this matter for litigation.
4 SMUD's Decommissioning Plan, Appendix C, Table 2, shows their assumedInl rate of return on interest earnings (i.e., nominal return less inflation rate) is 3.2%. This is close to the 2% to 3% range discussed as the average real long-term rate in NUREG-0584, Rev. 3, " Assuring the Availability of Funds for Decommissioning Nuclear Facilities" at 21. No information is given, as required in 10 C.F.R. { 2.714(b)(2), to show that SMUD's projections are too high. Moreover, SMUD will periodically readjust decommissioning costs and periodically adjust fund collections needed to cover these costs based on changes in interest and inflation rates, as required by NRC regulations.
See 10 C.F.R. f f 50.75(b),50.82(c). Thus, the contention is erroneous in fact as well in law.
Basis 13 of the contention does not meet the pleading and substantive requirements of 10 C.F.R. f 2.714(b)(2) and CLI-93-03, and cannot be admitted for litigation.
Basis 14. ECO alleges that the costs ofinterim spent fuel storage are significant (i.e., $80 million) and must be addressed with adjustments more frequent than 5 years.
ECO Contention at 10-11. Spent fuel costs are specifically excluded from the NRC
. _ _ _ definition of decommissioning. See 10 C.F.R. 6 50.75, n.1; see also Staff response to contention 2 above. The costs of storing spent fuel until it is turned over to the Department of Energy are addressed in f 50.54(bb), and are not relevant to the decommissioning funding plan. ECO provides no fact, expert opinion or information to support a conjuncture that an ISFSI might not be competed in 1998. This is not sufficient support for admission of this basis for the contention. See 10 C.F.R. f 2.714(b)(2).
i, For the reasons stated above, Basis 14 of the contention is beyond the scope of the issues permitted to be raised by the Commission in CLI-93-03, and may not be admitted for litigation.
CONCLUSION The Commission, in CLI-93-03, permitted ECO to submit a contention challenging the adequacy of the proposed funding plan for decommissioning the Rancho Seco facility.
ECO's proposed amended decommissioning funding contention and its bases cannot be admitted for litigation as they concern matters outside the scope of matters remanded in CLI-93-3 and do not meet the requirements of 10 C.F.R. f 2.714 for the admission of a contention. All of the bases ECO's decommissioning funding contention, and the contention itself, should be rej -cted.
Respectfully submitted, WAhk Charles A. Barth Counsel for NRC Staff Dated at Rockville, Maryland this 12th day of April 1993
l
. j5 l :
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'93 APR 12 P5 :40 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
SACRAMENTO MUNICIPAL UTILITY
)
Docket No. 50-312-DCOM 1
DISTRICT
)
)
(Decommissioning Plan)
)
(Rancho Seco Nuclear Generating Station)
)
CERTTIFICATE OF SERVICE i
1 I hereby certify that copies of "NRC STAFF RESPONSE TO ECO'S CONTENTIONS REGARDING THE FUNDING OF DECOMMISSIONING" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system this 12th day of April 1993:
Charles Bechhoefer, Esq., Chairman
- James P. McGranery, Jr., Esq.
Administrative Judge Dow, Imhnes & Albertson Atomic Safety and Licensing Board 1255 23rd Street, N.W.
Mail Stop: EW-439 Suite 500 U.S. Nuclear Regulatory Commission Washington, DC 20037 Washington, DC 20555 Ms. Jan Schori Richard F. Cole
- Sacramento Municipal Utility District l
Administrative Judge 6201 S Street Atomic Safety and Licensing Board P.O. Box 15830 Mail Stop: EW-439 Sacramento, CA 95814 U.S. Nuclear Regulatory Commission Washington, DC 20555 Sacramento County Board of Supervisors l
Thomas D. Murphy, Esq.*
700 H Street, Suite 2450 l
Administrative Judge Sacramento, CA 95814 Ato;nic Safety and Licensing Board Mail Stop: EW-439 U.S. Nuclear Regulatory Commission Washington, DC 20555 l
Thomas A. Baxter, Esq.
Atomic Safety and Licensing Board l
Shaw, Pittman, Potts, & Trowbridge Panel
- 2300 N Street, N.W.
Mail Stop: EW-439 Washington, DC 20037 U.S. Nuclear Regulatory Commission Washington, DC 20555 Office of Commission Appellate Adjudication
- Office of the Secretary * (2)
Mail Stop: 16-G-15 OWFN Attn: Docketing and Service U.S. Nuclear Regulatory Commission Mail Stop: 16-G-15 OWFN Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Adjudicatory File * (2)
Atomic Safety and Licensing Board Panel Mail Stop: EW-439 U.S. Nuclear Regulatory Commission Washington, DC 20555 l
l YsAGA/a/
Charles A. Barth Counsel for NRC Staff i