ML20046C524
| ML20046C524 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 08/02/1993 |
| From: | Lisa Clark NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#393-14169 92-663-02-DCOM, 92-663-2-DCOM, DCOM, NUDOCS 9308110102 | |
| Download: ML20046C524 (27) | |
Text
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/ 4'/69 August 2,1993
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'93 AUS -2 PS :C5 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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SACRAMENTO MUNICIPAL UTILITY
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Docket No. 50-312-DCOM DISTRICT
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(Decommissioning Plan)
(Rancho Seco Nuclear Generating Station,
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Facility Operating License No. DRP-54)
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ASLBP No. 92-663-02-DCOM NRC STAFF RESPONSE TO ECO'S CONTENTIONS ON THE STAFF ENVIRONMENTAL ASSESSMENT, FINDING OF NO SIGNIFICANTIMPACT AND SAFETY EVALUATION INTRODUCTION On July 12,1993, Environmental and Resources Conservation Organization (ECO) filed contentions on the Staff Environmental Assessment and Findings of No Significant Impact and Safety Evaluation. The Staff hereby responds to the contentions.
BACKGROUND The Licensee, Sacramento Municipal Utility District (SMUD), filed an application for termination of its license and a proposed decommissioning plan for Rancho Seco on May 20,1991. SMUD subsequently provided a supplement to its Environmental Report (ER) on October 21,1991, and additional environmental information in response to Staff inquiries on April 15, 1992.
ECO filed a petition to intervene and request for hearing on the Licensee's Environmental Repon and the decommissioning plan. After a prehearing conference held D
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O 2-on July 17,1992, ECO asked the Licensing Board to withhold any order dismissing their motion until after SMUD filed a supplemental environmental report and after the Staff issued either an Environmental Assessment or Draft Environmental Impact Statement.
The Licensing Board denied ECO's petition, deciding, among other things, that withholding a decision pending the filing of additional contentions based on future environmental reports would run counter to the Commission's long-standing requirement that contentions submitted after the prehearing conference be considered " late-filed."
i Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station)
LBP-92-23,36 NRC 120,140 (1992).
On appeal, the Commission, as here material, remanded the case to the Licensing Board for a determination on the admissibility of any amended or new contentions on l
several issues, including the Staff's environmental review. Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station) CLI-93-3,37 NRC 135,138,154-55 i
(1993), reconsideration denied, Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station) CLI-93-5,37 NRC 168 (1993). The Commission noted that i
while 10 C.F.R. f 2.714(b)(2)(iii) provides that a petitioner may seek to amend i
contentions or file new contentions if data or conclusions in subsequent NRC environmental review documents differ sk.ificantly from those of the applicant, such contentions are also subject to the late-filing criteria set out in 10 C.F.R.
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{ 2.714(a)(1)(1)-(v). Id. at 154. The Commission also observed that the first of those criteria, whether there is good cause for lateness, may be satisfied if the information in the Staff documents was not otherwise available to the petitioner. Id.
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O 3-4 DISCUSSION ECO should be denied admission of proffered contentions six through ten and the 1
contention relating to the Safety Evaluation because it has failed to show that a balancing of the five factors applicable to late filings favors admission. Independently, the Board should reject the filing on the basis that ECO has failed to raise an admissible contention.
The Staff's arguments are set forth in detail below.
l.
ECO Has Not Shown That a Balancing of the Five Late-Filing Factors Favor Admission of Contentions Six Through Ten and the Safety Evaluation Contention.
Section 2.714(b)(2)(iii) provides that on issues arising under NEPA, the petitioner shall file contentions based on the applicant's environmental report and may amend those i
contentions or file new contentions if there are data or conclusions in the Staff environmental assessment that differ significantly from the data or conclusions in the applicant's document. Thus, to the extent that an issue is raised by the applicant's environmental report, an intervenor must file contentions on that document. Final Rule, Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug.11,1989), a.g'd sub nom. Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir.1990). Any such contentions may thereafter be amended or supplemented based on new information contained in Staff i
documents in recognition of the fact the Staff may take a different position on the environmental questions raised. Id.
ECO has failed to make any showing that the Staff's Environmental Assessment differs significantly from SMUD's environmental submissions with respect to the data
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relied upon or the conclusions reached. Thus, ECO has no good cause for waiting until after the issuance of the Staff's assessment to file contentions challenging that information. As dirussed in detail below, the lack of good cause for this untimely P
filing, and an overall balancing of the factors governing late filings, weighs against admission of those contentions.
Regardless of whether the contentions are premised upon the applicant's environmental report or Staff's environmental assessment, they are subject to the provisions of f 2.714. Id.; CLI-93-3,37 NRC at 154. Section 2.714 provides that late-filed contentions will not be considered unless the balancing of the five factors listed in i 2.714(a)(1) favors their admission. The five factors are:
(1)
Good cause for failure to file on time.
(2)
The availability of other means whereby the petitioner's interest will be protected.
(3)
The extent to which petitioners can aid in developing the record.
(4)
The extent to which petitioner's interests may be represented by other parties.
(5)
The extent to which petitioner's participation will broaden the issues or delay the proceeding.
The petitioner bears the burden of proof in showing that a balancing of these five factors favors intervention. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CL1-83-25,18 NRC 327, 331 (1983). Although the regulations call for a balancing test, it has been held that where a petitioner fails to show good cause for filing a late petition, the other four factors must weigh heavily in its favor in order for the petition to be granted. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
ALAB-707,16 NRC 1760,1765 (1982). See also Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743,18 NRC 387,397 (1983).
I,
e i
I ECO's contentions six through ten challenge information that was contained in SMUD's Environmental Report, which was prepared in 1991 and has been available for inspection in the Public Document Room. Despite having the burden of showing good cause for failing to file until now, ECO does not make any claim that the foundation for those contentions rests uniquely on the Staff's environmental review. Instead, ECO makes the broad and unsupported statement that good cause is satisfied by the fact that mformation in the Staff document was previously unavailable.
As noted above, the Commission's regulations particularly provide that environmental contentions, to the extent possible, must be submitted on the basis of a licensee's environmental report, and may not await the Staff's environmental document.
Since the environmental report prepared by the Licensee has been available to ECO for more than two years, and the Generic Environmental Impact Statement (GEIS) on Decommissioning of Nuclear Facilities, NUREG-0586 for over four years, there is no good cause for the failure to challenge the substance of the Licensee's report until now.
The intervenor is under the obligation to review the Environmental Report filed by the licensee and to promptly file contentions. In Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041 (1983), the Commission reversed an Atomic Safety and Licensing Appeal Board holding that the unavailability of an environmental statement provided good cause for failure to file environmental contentions within the times set in 10 C.F.R. 6 2.714. The Commission stated:
These procedural requirements are consistent with a petitioner's obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable it to uncover any information that
. t could serve as the foundation for a specific contention. Accordingly, the institutional unavailability of a licensing-related document does not establish good cause for filing a contention late if information was publicly available early enough to provide the basis for the timely filing of that contention.
17 NRC at 1045.
As to the unavailability of Staff environmental documents, the Commission highlighted the duty of an intervenor to formulate contentions on the basis ofinformation available b it at the time contentions are normally due, without awaiting the Staff's environmental documents. The Commission stated:
While all environmental contentions may, in a general sense, ultimately be challenges to the NRC's compliance with NEPA, factual aspects of particular issues can be raised before the DES is prepared. As a practical matter, much of the information in an Applicant's ER is used in the DES. Just as the submission of a safety-related contention based on the FSAR is not to be deferred because the staff may issue an SER requiring a change in a safety matter, so too, the Commission expects that the filing of an environmental concern based on the ER will not be deferred because the staff may provide a different analysis in its DES. Should that circumstance transpire, there will be ample opponunity to either amend or dispose of the contention.
17 NRC at 1049.
Thus, as a matter of law, an intervenor must file contentions on the basis of an applicant's environmental report, and does not have good cause to file late contentions unless it establishes that new or different data or conclusions are contained in a later Staff environmental document. Clearly, ECO has failed to meet this standard to the extent that it challenges the substance of the Environmental Assessment in contentions six through l
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I ten.2 Funher, ECO's showing on the remaining four factors fails to overcome the fact that there is no good cause for this untimely filing.
Regarding factor three, the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record, ECO states that the individuals it represents have generalized expertise in nuclear power plants and specialized expertise concerning Rancho Seco. The fact that the intervenors may be knowledgeable about nuclear power plants, however, does not indicate whether they would aid the Board in evaluating the environmental impacts of the decommissioning plan. Beyond alleging inadequacies in the Staff Environmental Assessment, ECO has not provided any indication that it has panicularized knowledge of this subject. No experts 2
have been identified for these issues, no affidavits have been filed with these contentions 4
and no supponing information has been supplied. Given the lack of any showing that ECO would be of any assistance to the Board in assessing the environmental impact of the proposed action, this factor must be weighed against admission. Unsupponed assenions concerning a petitioner's ability, such as these, are insufficient to make a positive showing on this factor. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-88-12,28 NRC 605,611 (1988).
2 See ER at 5.4 (Public Services and Socioeconomic Impacts),
5.5 (Natural Resources), 5.6 (Transportation and Noise), and 4.2 (Population Distribution and Trends).
The affidavits submitted by ECO with pleadings concerning 2
other aspects of this proceeding do not demonstrate any expertise with regard to the environmental issues ECO attempts to raise through these contentions.
Unquestionably, admission of contentions on the Environmental Assessment would i
broaden the issues and delay the proceeding, so factor five also weighs against admission.
While factor two, the availability of other means to protect petitioner's interest, and factor four, the extent to which petitioner's interest would be represented by other parties, weigh in favor of admission, those factors are generally accorded less weight than the other three factors. South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1) ALAB-642,13 NRC 881,895 (1981).
In conclusion contentions six through ten should be rejected upon a balancing of s
the late-filing criteria. Contentions one through five, however, are on a somewhat different footing. Because they challenge matters which are relevant only to the Staff Environmental Assessment, they could not have been filed earlier. Thus, ECO has good cause for filing late. Given the imponance of that factor, an overall balancing of the late-filing factors favors admission.
As for ECO's safety evaluation contention, a challenge to the Staff's technical basis fact that the premised upon the Independent Spent Fuel Storage Installation (ISFSI)is not i
part of the safety evaluation need not await the issuance of a that document. As discussed below, the Staffs's evaluation of the ISFSI is pan of its review of separate application for a materials license under Part 72. This procedure is well established, and could certainly have been discovered by ECO before the issuance of the SE. Thus, there is no good cause for filing at this time. ECO has provided no basis for this claim and thus has made no showing that it would assist the Board in assessing the adequacy of the Staff's technical basis.
Factor three, therefore, weighs against admission of the
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contention as does factor five, since admission of this contention would broaden the issues and delay the proceeding. Thus, this contention should also be rejected upon a i
balancing of the late-filing factors.
II. ECO Has Not Proffered an Admissible Contention A. Standards for Admissibility The substantive requirements for admissible contentions are set fonh in 10 C.F.R. 5 2.714(b)(2), which requires that each contention consist of a specific statement of the issue oflaw or fact controverted, a brief explanation of the bases of the contention, a concise statement of the alleged facts or expert opinion on which the petitioner intends to rely in proving the contention at the hearing, references to those specific sources and documents on which the petitioner intends to rely, and sufficient information. 54 Fed. Reg. 33,168, 33,180 (August 11, 1989).
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 if(a) the contention and supporting material fail to satisfy the requirements of 10 C.F.R.
( 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. I 2.714(d)(2);
see Rules of Practicefor Domestic Licensing Proceedings - Procedural Otanges in the Hearing Process, 54 Fed. Reg. 33,168 (August 11, 1989).'
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In adopting the regulations the Commission stated:
Under these new rules an intervenor will have to provide a concise statement of the alleged facts or expert opinion which (continued...)
In addition, a contention must raise matters appropriate for adjudication in a particular proceeding to (1) establish a sufficient foundation for the contention to warrant further inquiry into the subject matter addressed by the assertion, and (2) 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 54 Fed. Reg. 33,169,33,171; Philadelphia Electric Co.
. ALAB-216, 8 AEC 13, 20-21 (Peach Bottom Atomic Power Station, Units 2 and (1976).
A contention must fall within the scope of the issues set forth in the notice of hearing. See Public Senice Co. ofIndiana (Marble Hill Nuclear Generating Station, i
8(... continued) support the contention and on which, at the time of filing, the intervenor intends to rely in proving the contention at hearing, together with references to the specific sources and documents of which the intervenor is aware and on which the intervenor intends to rely in establicizing the validity of its contention.
This requiremr.it does not call upon thre 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.
In addition to providing a statement of facts and sources, the new rule will also require intervenors to submit with their list of contentions sufficient information (which may include the known significant facts described above) to show that a genuine dispute exists betweer.
the petitioner and the applicant or licensee on a material issue of law 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 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.
54 Fed. Reg. 33,168, 33,170 l
Units 1 and 2), ALAB-316, 3 NRC 167,170-71 (1976); see also Wisconsin Electric Co.
(Point Beach Nuclear Plant, Units 1 and 2), ALAB-739,18 NRC 335,339 (1983).
The alleged facts on which a contention is based must be sufficient to demonstrate that a genuine dispute oflaw or fact exists. 54 Fed. Reg. 33,170. As stated in Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687,16 NRC 460, 468 (1982), vacated in pan on other grounds, CLI-83-19,17 NRC 1041 (1983):
[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 6 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.
t In sum, to set forth an admissible contention, a petitioner must examine publicly available information to provide some factual basis for its position and demonstrate that there exists a genuine dispute between it and the licensee. 54 Fed. Reg. 33,171. The Commission's regulations preclude "a contention from being 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." /d.; see also BPI v. AEC, 502 F.2d at 429. A person or organization seeking admission to a licensing proceeding is expected to have read "the portions of the application (including the applicant's safety and environmental 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 fut or law." 54 Fed. Reg. 33,171.
As the Court stated in Vermont Yankee Nuclear Power Corp. v. NRDC,435 U.S.
519, 553-54 (1978):
[I]t is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions. This is especially true when the intervenors are requesting the agency to embark upon an exploration of uncharted territory.... Indeed, administrative proceedings should not be a game or a forum to eng:ge in unjustified obstructionism by making cryptic and obscure reference to matters that "ought to be" considered and then, after failing to do more to bring the matter to the agency's attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters " forcefully presented."
As discussed below, none of the contentions proposed by Petitioner' satisfies the standards for contentions set forth in the Commission's regulations governing contentions, 10 C.F.R. f 2.714.
B.
Contentions 1 through 5 cannot be admitted as none provides a basis for relief.
Contentions 1 through 5 should not be admitted as they are of no consequence. As we have detailed above, only contentions which would entitle a petitioner to relief may be admitted for litigation in NRC proceedings. 10 C.F.R. I 2.714(d)(2)(ii). Not one of the first five contentions maintains that an environmental impact statement should have r
instead been prepared, instead of an environmental assessment. The Commission, in As noted by SMUD, it is difficult to discern what ECO is l
pleading as contentions.
It is entirely possible that the numbered statements are actually bases for the broad assertion at the beginning of ECO's pleading to the effect that the EA and FONSI are inadequate.
If that is the case, the contention is inadmissible because an adequate basis has not been alleged for the reasons discussed below.
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adopting its decommissioning regulations, indicated that an EIS is generally not required upon approving a decommissioning plan for a particular facility. It stated:
The Commission's primary reason for eliminating a mandatory EIS for decommissioning is that the impacts have been considered generically in a GEIS. The Commission determined that examination of these impacts and their cumulative effect on the environment and their integration into the w2ste disposal process could best be examined generically. A final, updated GEIS has been issued.... The GEIS shows that the difference in impacts among the basic alternatives for decommissioning is small, and the dose impact of decommissioning is small, whatever alternative is chosen, in comparison with the impact accepted from 40 years of licensed operation. The relative impacts are expected to be similar from plant to plant, so that a site-specific EIS would result in the same conclusions as the GEIS with regard to methods of decommissioning.
53 Fed. Reg. 2.4039 (June 27,1988). Thus, proffered contention 1 through 5 should be rejected as not one provides any basis for relief, indicates why an EIS instead of an EA should have been prepared or shows that any matter was not properly considered in the EA.
C.
An examination of each of the proffered contentions shows that not one may be admitted for litigation.
Contention 1 ECO's Contention I reads as follows:
In preparing its environmental assessmer.
the NRC staff is required to consult relevant agencies and persons. &g 10 CFR 651.30(a)(2). The EA at (6.0 indicates only that the " staff consulted with the State of California regarding the environmental impact of the proposed action." This constitutes inadequate compliance with the NRC's own regulations because (a) there is no indication what the State of California's view were nor any reference to any consultation with any other relevant authorities such as the Council on Environmental Quality or the U.S.
Department of Energy, both of which had previously expressed
strong views as to the adverse environmental consequences of decommissioning Rancho Seco and the need for an environmental impact statement (EIS).
t The relevant regulation,10 C.F.R. 6 51.30(a)(2), states that an environmental assessment shall include a list of agencies and persons consulted and identify the sources used. Nowhere does the regulation require that the Staff consult with any particular authority such as the Council on Environmental Quality or the U.S. Department of Energy. Further, the regulation contains no requirement that the Staff specifically incorporate the views of those consulted in the Environmental Assessment. For these reasons, ECO's contention has no basis and should be rejected.
This contention is inadmissible for the additional reason that it fails to allege facts which would be of any consequence. ECO does not suggest, nor is there reason to believe, that including a statement of the views of the State of California or any other authority would alter the analysis used in evaluating the environmental impacts of decommissioning or the conclusions reached by the Staff.
Before issuing the Environmental Assessment, the Staff invited the State of California to present its views on the decommission plan.
Environmental Assessment at 23.
The previously expressed" views of the Council on Environmental Quality and the U.S. Department of Energy presumably refer to the position that NEPA demands consideration of resumed operation of the plant. Long Island Lighring Co. (Shoreham Nuclear Power Station, Unit 1) CLI-91-2, 33 NRC 61, 67-68 (1991). However, the Commission has already rejected that argument for Rancho Seco. Sacramento Municipal Utility District (Rancho l
t Seco Nuclear Generating Station) CLI-93-3,37 NRC 135,144-45.
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Contention 2 ECO's contention 2 reads as follows:
The Staff document violates 10 CFR 651.119 (1993) because it does not indicate whether it is a draft or final finding at EA 17.0.
Under 6 51.119(a), the finding of no significant impact is identified as a draft or final finding, and contains certain required information. A draft finding includes a request for comments. Section 51.104 provides that in any proceeding in which a hearing is held where the NRC Staff has determined that no environmental impact statement need be prepared, any party may take a position and offer evidence on the proposed action within the scope of NEPA. In the proceeding, the presiding officer decides any matters in controversy. When such a hearing is held, 5 51.34 provides that the appropriate NRC Staff director will prepare a proposed finding of no significant impact which may be subject to modification as a result of review and decision, in which case the final finding of no significant impact is made by the presiding officer.
The Staff in this instance has issued a final Environmental Assessment. While the document does not explicitly state that it is a final finding, its status as such is evident from the fact that it does not include a request for comments. Because a hearing on the proposed action has been requested, the finding is subject to possible modification and final issuance by the presiding officer if a hearing is held. This procedure is entirely consistent with the regulations and NRC practice. Thus, it is clear that this contention would be of no consequence since it would not entitle ECO to any relief. Admission of the contention should therefore be denied.
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Contention 3 ECO's contention 3 reads as follows:
The Staff document violates 10 CFR 551.33(b) (1993) because it does not consider whether circumstances exist requiring the publication of a draft FONSI.
Under i 51.33(a), the appropriate Staff director may make a determination to prepare and issue a draft finding of no significant impact for public review and comment before making a final determination whether to prepare an environmental impact statement or final finding of no significant impact. The director's decision is purely discretionary. As the Commission stated when promulgating this regulation:
Section 51.33 gives the NRC staff discretionary authority to prepare a draft finding of no significant impact and issue the draft finding for public comment... Section 51.33(b) describes certain circumstances in which the preparation of a draft finding of no significant impact may be appropriate.
These circumstances include those in which preparation of a draft finding will further the purposes of NEPA. The NRC staffis not required, however, to use this discretionary procedure.
As noted above, the Staffin this case chose not to prepare a draft finding. The i
circumstances listed in subpart (b) are merely a listing of situations in which draft i
findings are ordinarily issued and are in no way binding upon the Staff in making its determination. In addition, ECO sets out no reason to inquire further if an EIS rather, than an EA, should be required and in that it does not give any reason why an EIS should have been published. Thus, ECO's contention has no basis in the regulations and should be rejected.
Contention 4 ECO's contention 4 reads as follows:
If the FONSIis intended to be final, it violates 10 CFR 651.34(b)
(1993) since a hearing is currently in progress on the proposal and that regulation bars the NRC Staff from issuing a final finding of no significant impact.
Under 10 C.F.R. i 51.33(a), an NRC Staff director determines whether to prepare a draft or final finding of no significant impact. See also 10 C.F.R. 651.119. When a hearing is held, this finding is subject to modification by the presiding officer as a result of review and decision. In such a case, the final agency finding of no significant impact is issued by the presiding officer or the Commission.
The Staffis not prohibited from issuing a final finding because a hearing has been requested. Under 10 C.F.R. Il 51.33 and 51.119, the Staff may issue a final finding of no significant impact subject to modification in hearing. This is similar to the Staff issuance of a Final Environmental Impact Statement which also may be modified as a result of hearing.
See,10 C.F.R. 65 51.93, 51.94, 51.109(a).
Because ECO's contention is premised upon a misapplication of the regulations it should be rejected for lack of basis.
The contention should also be rejected for the reason that it does not raise an issue of any consequence. ECO is in no way harmed by issuance of a final finding of no significant impact. Even when, as in this case, a final finding is issued by the Staff any interested organization such as ECO has the opportunity to challenge the underlying environmental determinations by requesting a hearing. In such a case, the Staff's finding s
h 4 is subject to modification by the presiding officer or the Commission deciding the issues in controversy. The contention cannot be admitted because the contention is of no l
consequence as it would not entitle petition to relief. See 10 C.F.R. 6 2.714(d)(2)(ii).
Contention 5 Contention 5 reads as follows:
i If it is intended to be a draft FONSI, the Staff document violates 10 CFR 651.119(a) because it does not include a request for comments, specify where comments should be submitted, or when the comment period expires.
As stated above, the Staff document is not a draft and for that reason did not include a request for comments. This contention should be rejected for lack of basis.
Contention 6 i
Contention 6 reads as follows:
The EA's consideration (at para. 5.0) of postulated accidents is totally inadequate because it does not consider non-radiological accidents during the decommissioning process.
At the post operating license stage, the regulations at i 51.95(b) provide that in j
connection with the amendment of an operating license ~to authorize the decommissioning of a facility the Staff will prepare a supplemental environmental report to update the prior environmental review. As stated in i 51.53, concerning the applicant's supplemental j
report, the supplement is to reflect new information or significant environmental changes associated with the proposed decommissioning activities.
The Staff's Environmental Assessment does not include a discussion of non-radiological accidents because the postulated accidents for Rancho Seco were considered i
to be within the range of accidents evaluated in the Staff's " Technology, Safety, and Costs of Decommissioning a Reference Pressurized Water Reactor Power Station,"
i NUREG/CR-0130, June 1978, which formed the basis of the Staff's GEIS. See Environmental Assessment at 21. In NUREG-CR-0130, the Staff considered a number of non-radiological accidents associated with decommissioning. See NUREG-CR-0130 at {f 11.2.3,11.3.2,11.4.3.
f Because ECO has not specified any accident which should have been, but was not, considered in the Environmental Assessment the contention has no basis and should be rejected for that reason. A contention that simply alleges that some matter "ought to be considered" does not, as the Supreme Coun held in Vermont Yankee, supra, provide the basis for an admissible contention.
Contention 7 ECO's Contention 7 reads as follows:
The EA's consideration of the radiological impacts of decommissioning at para. 3.2 is without sufficient factual basis because there is not an engineering analysis of an independent i
spent fuel storage facility on which to base ~any of the conclusions with respect to normal emissions or accidental emissions.
This contention should be rejected because it is based upon a false premise. The Staff's Environmental Assessment concerns only the activities associated with decommissioning the plant, not the independent spent fuel storage installation (ISFSI).
The ISFSI is the subject of a request for a Materials License under Part 72 which was 61ed on October 4,1991. Docket No. 72-11 (50-312). SMUD has provided a separate
. environmental report on the ISFSI, the most recent version of which was submitted on June 16,1993 and is available in the Public Document Room.
The Staff's consideration of the Materials License request was noticed in the Federal Register on January 13,1992. 57 Fed. Reg.1286. ECO had the opportunity at that time to petition to intervene on issues related to the ISFSI but did not. The only issues which may be raised now, on the basis of a petition to intervene filed upon notice of consideration of SMUD's decommissioning plan, are those related to decommissioning activities. As the Commission has stated, decommissioning activities do not include the removal and disposal of spent fuel which are considered to be operational activities.
52 Fed. Reg. at 24,019. ECO's attempt, through this contention, to raise matters which are outside the scope of this proceeding should be rejected.
Contention 8 ECO's contention 8 reads as follows:
1 The EA's non-radiological impact findings are inadequate because there is no discussion of the activities anticipated to be performed by SMUD. There is no discussion, much less qualification, of the environmental, including economic and socioeconomic impacts of the proposed action and there is no discussion of the t
changes that have taken place in the 20 years since the issuance of the Staff Reference 18.
1 This contention is overly vague and without basis.
Section 3.0 of the Environmental Assessment includes discussions of the site and location of the plant (3.1.1), the current demographics of the area (3.1.3), the expected socioeconomic impacts of decommissioning (3.1.3), and the impact of decommissioning activities on i
transponation (3.1.7), water use (3.1.5) and water quality (3.1.8). ECO's vague and I
I.
unsupported allegations do not raise any material issue concerning the Staff's findings on the non-radiological impacts of decommissioning. No showing is made that any of these matters are misstated or that they could not have been raised on the basis of the Licensee's environmental report. For each of these reasons, the contention must be rejected.
Contention 9 The EA errs in finding that the only relevant demographic and socioeconomic effects that are relevant are within a 13 mile radius of Rancho Seco. Sg EA at para. 3.1.3. The relevant radius is 50 miles as demonstrated by both the SMUD submissions and general NRC practice.
s This contention should also be rejected for lack of basis. ECO does not delineate a single example of any demographic or socioeconomic impact which could be relevant to the decommissioning of the plant but was not considered by the Staff in the Environmental Assessment. Absent any allegation that the Staff failed to consider a relevant demographic or socioeconomic effect, ECO has failed to meet its obligation to provide a meaningful basis for further inquiry by this Board. See Vermont Yankee, supra. ECO has failed to allege any basis on which it could be presumed the allegedly missing information could lead to any different result herein and the contention must be rejected.
10 C.F.R. 5 2.714(b)&(d)(2). The question of what, in the abstract, the relevant radius for demographic and socioeconomic effects of decommissioning should i
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be is simply not a matter which can be raised in the context of considering a decommissioning plan for a specific facility.8 Contention 10 ECO's Contention 10 reads as follows:
The EA's consideration of decommissioning alternatives at para 1.4 is inadequate since it does not consider the alternative of preserving the plant in operable status for possible future use.
This contention should be rejected because the Commission has already determined that the Staff need not consider the alternative preserving the plant in operable status for possible future resumption of operation. As the Commission said in CLI-93-3,37 NRC at 144-45:
DV]e 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.g., national emergency) not present here.
Under NEPA, an agency need only consider the range of alternatives " reasonably related" to the scope and goals of the proposed action.
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. 650.2(1990); GEIS at 2-5.
Accordingly, such environmental analysis in this proceeding, which involves Staff's order approving of a decommissioning plan for, and decommissioning of, Rancho Seco need not address resumed operation as an alternative. The 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 only with Wther the decommissioning plan provides a safe and environmentally sound decomn Mioning.
Shorcham, CLI-90-8,32 NRC at 208.
The SMUD submission provided specific demographic and 5
socioeconomic information for a 13 mile radius, ER at 4.2.1, which was utilized by the Staff in its Environmental Assessment.
Under 10 C.F.R. S 2.714 (b) (2) (iii) and CLI-93-3, ECO had to raise this 3
issue within the time provided for filing contentions and has no good cause for filing now.
l
(Footnotes omitted.) Despite the Commission's clear language in that case, ECO is once again attempting to compel consideration of resumed operation of the plant. This contention should be rejected.
The Safety Evaluation Contention ECO's safety evaluation contention reads as follows:
Similarly, ECO contends that the NRC Staff lacks a sufficient technical basis to conclude in its Safety Evaluation that there is either reasonable assurance of health and safety or an adequate funding plan because the engineering design, schedule and cost of the Independent Spent Fuel Storage facility are unknown at this time.
This contention should be rejected on the grounds that it is not relevant to the action which is the subject of this proceeding.6 The design, schedule and cost of the ISFSI are not the subject of the Staff's review of the decommissioning plan submitted by SMUD.
Instead, those matters are germane to SMUD's application for a materials license for the ISFSI, which is reviewed separately by the Staff under Part 72. Indeed, the Safety Evaluation (SE) specifically states:
Although the licensee analysis assumes NRC approval of an ISFSI design, this safety evaluation does not depend on that approval. Even if RSNGS were to remain in Custodial-SAFSTOR until Deferred-DECON, the impacts of RSNGS in Custodial-SAFSTOR are well within the impacts evaluated in the Final Environmental Statement related to the operation RSNGS [Ref. 40]. For this scenario, this Safety Evaluation herein of the Custodial-SAFSTOR would apply to the entire SAFSTOR period.
SE at 2.
b See pp.
B-9, supra,
. t The Staff also remarks that the proposed schedule was found acceptable even if approval for onsite storage is not achieved before the DECON phase. SE at 9. Thus, it is clear from the SE itself that the Staff's evaluation of the ISFSI is not relevant to the SE of SMUD's decommissioning plan. The contention should, therefore, be denied for lack of basis.
CONCLUSION
~
For the above stated reasons, none of ECO's proffered contentions are admissible.
Respectfully submitted, y
Lisa B. Clark Counsel for NRC Staff Dated at Rockville, Maryland this 2nd day of August 1993 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
Docket No. 50-312-DCOM SACRAMENTO MUNICIPAL UTILITY
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DISTRICT
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(Decommissioning Plan)
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(Rancho Seco Nuclear Generating Station,
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ASLBP No. 92-663-02-DCOM Facility Operating License No. DRP-54)
)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. I 2.713, the following information is provided:
Name:
Lisa B. Clark Address:
U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D. C. 20555 Telephone Number:
301-504-1571 Admission:
Maryland Court of. Appeals,1981 Name of Party:
NRC Staff Respectfully submitted, M
Lisa B. Clark Counsel for NRC Staff
^
Dated at Rockville, Maryland this 2nd day of August 1993
UNITED STATES OF AMERICA Y
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSINGbAQ -2 P5 :05 In the Matter of
)
, '[(
iy; 7
)
,ec SACRAMENTO MUNICIPAL UTILITY
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Docket No. 50-312-DCOM DISTRICT
)
)
(Decommissioning Plan)
(Rancho Seco Nuclear Generating Station,
)
Facility Operating License No. DRP-54)
)
ASLBP No. 92-663-02-DCOM CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO ECO'S CONTENTIONS ON THE STAFF ENVIRONMENTAL ASSESSMENT, FINDING OF NO SIGNIFICANT IMPACT AND SAFETY EVALUATION" 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 2nd day of August 1993:
Charles Bechhoefer, Esq.
James P. McGranery, Jr., Esq.
Chairman
- Dow,I.ohnes & 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 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 Thomas D. Murphy, Esq.*
700 H Street, Suite 2450 Administrative Judge Sacramento, CA 95814 Atomic Safety and Licensing Board Mail Stop: EW-439 U.S. Nuclear Regulatory Commission Washington, DC 20555 i
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Thomas A. Baxter, Esq.
Atomic Safety and Licensing Board 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
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Edwin J.
's Deputy ssistant General Counsel for Reactor Licensing
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