ML20044F804
| ML20044F804 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 05/26/1993 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | SACRAMENTO MUNICIPAL UTILITY DISTRICT |
| References | |
| CON-#293-13990 CLI-93-03, CLI-93-12, CLI-93-3, DCOM, NUDOCS 9306010067 | |
| Download: ML20044F804 (15) | |
Text
{{#Wiki_filter:* 1 [. /.3T90 i UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION "93 m" 26 is :14 f COMMISSIONERS: Ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gail de Planque hg 3y { g 'jg s ) In the Matter of ) ) SACRAMENTO MUNICIPAL ) Docket No. 50-312-DCOM j UTILITY DISTRICT ) ) (Decommissioning Plan) (Rancho Seco Nuclear Generating ) Station) ) 1 l ) 7 i MEMORANDUM AND ORDER CLI 12 I Sacrarento Municipal Utility District (SMUD or licensee) has i filed a motion for reconsideration of the Commission's Memorandum I and Order CLI-93-03, which granted Environmental and Resources i Conservation Organization (ECO) discretionary intervention, f I admitted one contention, and permitted'an amendment of another. l 37 NRC This proceeding involves ECO's challenge to the i i Nuclear Regulatory Commission (NRC) staff's proposed order l approving a decommissioning plan for, and authorizing l decommissioning of, the Rancho Seco Nuclear Generating Station j (Rancho Seco). For the reasons set forth below, we deny SMUD's l motion for reconsideration. l 9306010067 930526 PDR ADOCK 05000312 i C PDR ]b 5D 2' t
i i -+- 2 i The licensee premises its motion for reconsideration on f ( essentially four bases.' First, the licensee argues that the i t t Commission should reconsider its determination to grant discretionary intervention because ECO has not met the standards I required for discretionary intervention set out in Commission i jurisprudence. Second, the licensee argues _that the Commission I I improperly admitted the contention regarding loss of off-site i power (LOOP) because the LOOP issue does not raise a material issue of law or fact and is unrelated to any ECO interest, and [ because ECO has not demonstrated a significant ability to contribute to the record on this issue. Third, the licensee i f maintains that to allow ECO the opportunity to file an amended { r contention regarding SMUD's decommissioning funding plan is-j J f patently unfair and prejudicial to the licensee. Fourth, the l licensee argues that allowing the adjudication to remain open for F the specific purpose of allowing contentions to be filed on the {.! staff's environmental review documents is inconsistent with [ t Commission regulations. The staff supports the licensee's motion with respect to the l first three noted objections for essentially the-same reasons i f presented by the licensee.2 The staff does not seek reconsideration of the fourth matter because the staff believes l l i F ' Licensee's Motion for Reconsideration, March 10, 1993. s i NRC Staff's Support of Licensee's Motion for l 2 Reconsideration, March 26, 1993. I
.4: 4 i I 3 ~j that the relief provided by the Commission is consistent with l 20mmission. egulations. ECO cpposes the licensee's motion.3 I Analysis l For the reasons set out in more detail below, SMUD has i failed to identify any error or abuse of discretion by the i Commission in deciding CLI-93-03. Although SMUD asserts that its i interests are compelling and that our decision is highly prejudicial, SMUD has not articulated any specific harm that it 13 suffering as a result of our order. t 1. Discretionary Intervention In CLI-93-03, we granted ECO discretionary intervention because ECO presented several difficult questions which, if i resolved in its f avor, would support standing. We also found l that ECO had submitted one viable contention. In addition, we stated that the Commission is presently reviewing the process for l I review and approval of decommissioning plans, including the i' timing and scope of public participation in the decommissioning procers. CLI-93-03, slip op. at 7. The decision to grant ECO l intervention, without resolving the question of standing as of I right rested on our discretionary authority to hold hearings and to permit participation in our proceedings. The~ licensee does not challenge this authority. Nonetheless, the licensee asserts that we ignored our own { standards and precedents in granting ECO discretionary 3 ECO's Answer in Opposition to Licensee's Motion for Reconsideration, March 26, 1993. j
{ v. i f t i intertention.in this instance. We disagree. Cases _ cited by-the licensee, including Portland General Electric Co. (Pebble Springs l I Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976) (hereinafter Pebble Sprinos) are consistent with our decision to grant ECO discretionary intervention. As we stated in Pebble -{ Spriras, it was expected that the practice of granting discretionary intervention should develop "not through precedent, but through attention to the concrete facts of particular situations." 4 NRC at 617. Although ECO did not establish a clear case for standing,. ECO aterred certain arguments that would support it's standing. 3 The standing issue posed questions of first impression-in the context of a staff decommissioning order. Resolution of those-l questions might have little, if any, future application'in view i of the Commission's current examination of the process for appr:ving decommissioning plans. Thus, in this instance we have i f determined that it is in the public interest to resolve the particular natters raised by the petitioner rather than to' expend j f any further resources resolving the difficult questions regarding 1 ECO's standing as of right. In reaching our decision, we also took into account whether ) Eco r.ad raised potentially litigable matters in this proceeding. f i The Commission admitted one aspect of ECO's environmental i contention regarding the probability of a LOOP and has permitted i ECO to arend' its contention regarding the funding plan. Although-bott the staf f and licensee argue that ECO is not capable of I l 1 i
f 5 making a substantial contribution on either of these matters, such a conclusion is premature. The questions of whether a genuine issue of material fact remains regarding the LOOP contention and whether ECO has submitted an admissible amended funding plan contention are before the Licensing Board. If ECO establishes litigable matters with respect to either of these contentions, it will clearly be in the public interest to resolve these matters, which involve the adequacy of the licensee's discussion of credible accidents in the Environmental Report, and to determine whether SMUD has provided adequate financial assurances for funding decommissioning. On the other hand, if neither contention survives further scrutiny under the applicable provisions of 10 C.F.R. 5 2.714(b)(2) or S 2.749, then such matters will be dispensed with promptly. In sum, we gave due consideration to the Pebble Sprinos criteria and the particular circumstances of this case in formulating our order. Thus, we decline to reconsider our determination to crant ECO intervention as a matter of discretion. 2. Admissibility of the Environrental Contention ECO's environmental contention alleged, in part, that SMUD's Environmental Report is inadequate because SMUD's discussion of radiological impacts appears to rely merely on general NRC regulations, guidance and reports. As an example, ECO alleged that SMUD's discussion of the probability of a loss of off-site 1
? t 0 ~ { power (LOOP) is inadequate. In CLI-93-03 we admitted ECO's 5 contention that there is no reference to a particularized study to allow independent verification of the conclusion that the ] i probability of a LOOP is less than once in 20 years. CLI-93-03, slip-op. at 17. SMUD arguos that this matter was not raised on appeal by l ECO.' SMUC is incarrect. On appeal, ECO argued that the Licensing Board erred by not considering ECO's specific examples i i of alleged deficiencies in SMUD's Environmental Report. Although ECO did not restate the specifics of ECO's objections to SMUD's l t discussion of the LOOP, ECO referred in its appellate brief to f the pages of ECO's supplemental petition that, according to ECO, i ] the Licensing Board failed to consider.5 The cited portions of ECO's supplemental petition included ECO's allegation that there is no reference to a particularized study in SMUD's Environmental j Report to allow independent verification of SMUD's conclusion } regarding the probability of a LOOP. In its motion for reconsideration SMUD presents a new [ i argument regarding the LOOP -- that the probability of a LOOP is { ' SMUD Motion at 8. In support of its argument that the Licensing Board [ 5 improperly denied the admissibility of ECO's environmental l contention, ECO' stated that "ECO. spells out in great detail.the Various requirements for an. environmental report. ECO [ Amendment [ and) Supplement [to Petition for Leave to Intervene and Request. l for Hearing, June 29, 1992 at] 16-28. And ECO discussed in great detail.the various ways.[in which) the environmental report did l not meet those requirements.... Having previously spelled out l those duties there is nothing further for ECO to have done." -) ECO Brief in Support of Appeal from LBP-92-23, September 8, 1992,. j at 30-31. 1 -l I
4 l 'l 7 i innaterial and, thus, ECO has not raised a valid contention.6 This is not the argument that SMUD provided in its answer to ECO's supplement when SMUD addressed ECO's reference to the l probability of a LOOP.7 Had SMUD made these arguments to the Board, it might have defeated admission of this contention. I Nevertheless, SMUD is free to pursue this new line of argument f before the Licensing Board in resolving any remaining matter i regarding this contention.e We decline to reconsider our-j determination to admit ECO's environmental contention with respect to the probability of a LOOP.
- 3. Amendino the Fundina Plan Contention In CLI-93-03 we Dermitted ECO to amend its contention f
t challenging the adequacy of SMUD's proposed funding plan because there was sufficient confusion in the proceedings below as to I whether ECO could raise the objections to the funding plan in a f proceeding other than the instant one. Both staff and licensee 6 SMUD's Motion at 8-9. The staff's arguments supporting { SMUD's motion also pose objections raised for the first time on l' reconsideration. l 7 Licensee's Answer to ECO's Amendment and Supplement to j i Petition for Leave to Intervene and Request for Hearing, July 8, 1992, at 21-22. 8 Although we have already admitted the original. contention as we decided in CLI-93-03, we leave for the Licensing Board to-determine if the further amendment to the contention is l admissible and to determine if a genuine issue of material fact remains regarding the probability of a LOOP. The Licensing Board { should also determine if ECO's amended contention raises matters i that were not dependent on the analysis of the probability of a LCOP. To the-extent that ECO raises issues which could have been raised before because they are not dependent on the new l I information provided regarding the probability of a LOOP, ECO nust meet the criteria for late-filed contentions. t ? f
i 8 [ i insist that ECO was responsible for the confusion and that-it was clear that any such objections had to be raised in this f proceeding. We disagree. We found that the confusion apparently stemmed from the handling of an earlier SMUD request for, and ) staff consideration of, an exemption from complying with the l funding requirements in 10 C.F.R. 5 50.75(e) (1) (ii). see CLI l 03, slip op. at 21-22. Due to a subsequent change in Commission rules in July 1992, an exemption was no longer necessary and, thus, was no longer being considered by staff.' Nevertheless, the Licensing Board still concluded that ECO's comments-regarding i' the funding plan would be considered when staff determined I whether to grant SMUD's exemption request, and, for this reason, the Licensing Board concluded that the " crux of ECO's concern... has been fulfilled." LBP-92-23, 36 NRC 120, 137 (1992). In its motion for reconsideration, SMUD. maintains that staff l made it clear that there would not be another proceeding in which t ECO cculd challenge the funding plan and such contentions must be -j raised here. In support of this argument SMUD quotes the NRC { -staff's response to ECO's contention regarding the funding plan: I Chapter 5 and Appendix C of SMUD's decommissioning plan provide SMUD's funding j plan. The NRC staff is reviewing.that proposal. Approval of the funding plan will be in the Order or by separate approval. ECO l provides no basis to contest the adequacy of SMUD's funding plan in this proceeding, and i i CLI-93-03, slip op. at 22 (citing Prehearing Conference i Transcript at 140). See Final Rule, Decommissioning Funding for l Prematurely Shut Down Power Reactors, 57 Fed. Reg. 30,383 (July 9, 1992). 1 i i i -.~-
i I 9 i its adequacy, therefore, cannot be a contention herein." Staff's mention of a " separate approval" does little more than i raise further confusion as to whether there would be a separate l proceeding in which ECO could challenge the funding plan. Moreover, ECO indicated its intent to challenge the adequacy of l the funding plan." Thus, we decline to reconsider our i l determination to permit ECO to amend its funding plan contention. SMUD also argues that if ECO is permitted to amend its I funding plan contention, the amendment should be limited to [ matters related to the exemption request. We leave to the i t ) Licensing Board to determine whether ECO has presented issues r i which go beyond the scope of the adequacy of the funding plan and, if new matters are raised, whether such new matters meet the I late-filed criteria listed in 10 C.F.R. S 2.714 (a) (1) (i)-(v). l t f I M SMUD's Motion at 11-12 (emphasis added) (quoting NRC Staff Response.to ECO's Supplement to its Petition for Leave to . Intervene and Request for Hearing, July 10, 1992, at 27). I " See, e.c., Prehearing Conference Transcript, at 141-(July l 14, 1992) (Counsel for ECO stated that it found "that the [ decommissioning plan funding arrangement that the staff i originally proposed to approve is full'of contradictions, } uncertainties, and ensuing radiological and environmental risks due to the period of time of funding; therefore, [the funding plan] should be rejected." Moreover, counsel for ECO stated at the prehearing conference that "I am not here trying to attack as l everyone has recognized, the decommissioning funding plan itself. i That is a separate proceedir.g....[W)hile it is still a separate l proceeding, they-[ staff and SMUD) are criticizing me for not having raised [ECO's challenges to the funding plan) in the l context of this proceeding also." Id. at 150. t i I f
4 i 10 4. Stavina Issuance of the Decommissionina Order. f .In CLI-93-03 we ordered the staff to withhold issuance of the decommissioning' order until after the Licensing Board has j i completed both its review of.the admissibility of any amended or late-filed contentions and has held a hearing or otherwise resolved any litigable matter that may be raised. Slip op. at i 27-28. We provided for a pre-ef fectiveness hearing ' based' on the i totality of the circumstances. presented in this instance. Because the staff's environmental review documents had not been { I 4 i issued, we reccynized that contentions might be filed by ECO pursua nt to 10 C.F.R. 5 2.714 (b) (2) (iii) after the staff had completed its environmental review. Thus, we permitted a l i reasonable opportunity for consideration of such contentions t consistent with our grant of intervention as a matter of l discretion and our determination to permit a prior hearing on ,1 litigable matters. The licensee has not shown any specific I support for its argument that our determination has caused it 4 considerable hardship. Therefore, we decline to-reconsider this-e .i ] portion of our order. i l In the alternative SMUD argues that (1) the Commission should direct the NRC staff to conclude its environmental review promptly and (2) the Commission should clarify that ECO must show. that the new staf f documents on which ECO submits late-filed ~ -l contentions contain data and conclusions which differ significantly from the data or conclusions in SMUD's j environmental report and the NRC's Generic Environmental Impact a ~ r --w w ~.. * + .c
-+ i f 11 i 4 Statement on Decommissioning of Nuclear Facilities (NUREG-l t 0586) (hereinaf ter GEIS). With respect to SMUD's first request, we note that CLI-93-03 was not intended to delay issuance of the i staff's environmental revios documents. Thus, when the staff l r completes its review, the staff's assessment or other environmental review documents should be issued promptly. i With respect to SMUD's second request, the Commission I emphasized in CLI-93-03 that 10 C.F.R. S.2.714 (b) (2) (iii) of our l regulations expressly provides for the filing of supplemental or-amended contentions if the staff's environmental review documents contain data or conclusions which differ significantly from the } data or conclusions in the licensee's environmental documents. i See CLI-93-03, slip op. at 30-32. We also stated that any such contentions are subject to the late filed criteria listed in f i section 2.714 (a) (1) (i)-(v). Apparently, SMUD believes that the [ provision in section 2.714 (b) (2) (iii), referring to contentions that may be filed on the staff's environmental review documents, f I adds a sixth factor to the existing five factors that must be l considered when determining whether a late-filed _ contention is-f i admissible pursuant to section 2.714 (a) (1) (i)-(v). SMUD argues l that in addition to meeting the five factors listed in section.
- 2. 714 (a) (1) (i)-(v), ECO must also_show that the staff's documents i
significantly differ from both applicant's environmental documents and the GEIS. Although information regarding the j l difference between the applicant's environmental report and the i r staff's environmental review documents is relevant to the " good-j i I i j i
12 l caused factor, section 2.714 (b) (2) (iii) neither adds nor removes from consideration any factor to be balanced in the determination i of tr.e admissibility of a late-filed contention pursuant to sect:cn 2. 714 (a). l The Commission promulgated changes.to section 2.714, { effective in September 1989.12 One significant change to this l .i sect;on is that the Commission now requires the petitioner to provide sufficient information with its proffered contention "to-t i show that a genuine dispute exists with the applicant on a material issue of law or fact." 10 C.F.R. S 2.714 (b) (2) (iii). { As a general matter, in making this showing the petitioner must i reference specific portions of the application which the petitioner disputes or the reasons for the petitioner's belief that required information is omitted. On environmental-matters i this showing must include a reference to the specific portion of the applicant's environmental report which the petitioner believes inadequate. -However, the Commission expressly i reccgnizes that if data and conclusions in staff environmental i review documents significantly differ from the data and conclusions on a material issue in the applicant's environmental I .] repert, the petitioner could raise a genuine issue by referring i to those portions of the staff's environmental' documents which the petitioner disputes. See 10 C.F.R. S 2.714 (b) (2) (lii). 12 Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989), aff'd sub nom. Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990). i
r i 13 In prc=ulgating this change we did not alter the criteria to { be considered when-determining the admissibility of a late-filed i contention, but merely emphasized that prior agency case law makes it clear that any late-filed contention, including those i filed on subsequent NRC environmental review documents, are i subject to the late-filed criteria set out in section i 2.714 (a) (1) (i)-(v). '3 We did not mean to imply that a showing il that the staff's environmental review documents significantly. differ frcm the applicant's environmental report is always necessary to raise a good contention. Even without such a showing, a petitioner may still be able to meet 'the late-filed { contentien requirements of section 2.714 (a), e.a., by presenting j e 1 significant new evidence not previously available. Likewise, a 1 showing tt.,4t the staff's environmental review documents -l l significantly differ from the applicant's environmental report, l .I although ordinarily sufficient to show good cause for lateness, l 3 is not by itself sufficient to make an environmental contention admissible, because the petitioner must still meet the other criteria in section 2.714(a). Further, we decline to require ECO to also show how the data l and conclusions in staff's environmental documents differ-l -l significantly from the data and conclusions in the GEIS for i i purposes Of filing a contention. The GEIS cannot be: categorized 1 l as an " applicant's document" under 10 C.F.R. S 2.714 (b) (2) (iii). i
- 54 Fed. Reg. at 33,172.
l 1 l .1
r 14 Conclusion f i For the reasons stated above, SMUD's motion for i reconsideration of CLI-93-03 is denied. It is so ORDERED. i For the Commission f Y h*9 Y.?p wn'd\\ f., (7 ~n, A w..<~.'.'" o ,N' '~ ( -r e
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-l %'9? p..Z,[ lk UOHN C. HOYLE I / Assistant Secretary i Dated at Rockville, Maryland, y this 26th day of May 1993. j k i f l r i, ? A I r ) L f e f k i i )
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of SACRAMENTO MUNICIPAL UTILITY Docket No.(s) 50-312-DCOM DISTRICT (Rancho Seco Nuclear Generating Station (Decomissioning Plan)) CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMM M&O (CLI-93-12) DTD 5/26 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712. Office of Comission Appellate Administrative Judge Adjudication Charles Bechhoefer, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Administrative Judge Administrative Judge Richard F. Cole Thomas D. Murphy Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Charles A. Barth, Esq. James P. McGranery, Jr., Esq. Office of the General Counsel Counsel for Petitioner U.S. Nuclear Regulatory Commission 1255 23rd Street, N.W., Suite 750 Washington, DC 20555 Washington, DC 20037 Thomas A. Baxter, Esq. David R. Lewis, Esq. Shaw, Pittman Potts & Trowbridge 2300 N Street, NW. Washington, DC 20037 Dated at Rockville, Md. this 26 day of May 1993 /f ' - As t,k Office of the Secretary of the Comission}}