ML20058E047
| ML20058E047 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 11/30/1993 |
| From: | Bechhoefer C, Cole R, Murphy T Atomic Safety and Licensing Board Panel |
| To: | ENVIRONMENTAL & RESOURCES CONSERVATION ORGANIZATION |
| References | |
| CON-#493-14498 93-677-01-DCOM, 93-677-1-DCOM, DCOM-R, LBP-93-23, NUDOCS 9312060139 | |
| Download: ML20058E047 (90) | |
Text
.
+
r I
SERVED Mt - 1 1993
)
i LBP-93-23 t
UNITED STATES OF AMERICA g
NUCLEAR REGULATORY COMMISSION
,3 l
0 l
ATOMIC SAFETY AND LICENSING BOARD q
Before Administrative Judges:
NOV 3 0 893 -
l
~~
Charles Bechhoefer, Chairman sWMerd agog ggg Dr. Richard F.
Cole 4
Thomas D.
Murphy b
l Il 01 In the Matter of Docket No. 50-312-DCOM-R t
SACRAMENTO MUNICIPAL (Decommissioning Plan)
UTILITY DISTRICT l
(Rancho Seco Nudiear ASLBP No. 93-677-01-DCOM-R Generating Station, Facility Operating License No. DPR-54)
November 30, 1993 r
i SECOND PREHEARING CONFERENCE ORDER (Proposed Contentions Summary Disposition Motion)
]
This proceeding involves an application by the i
Sacramento Municipal Utility District (SMUD or Licensee) for l
decommissioning of the Rancho Seco Nuclear Generating Station, a nuclear facility located near Sacramento, j
In a Memorandum and Order dated March 3,
NRC 355 (May 26, 1993),. the Commission determined that the Environmental and Resources Conservation Organization (ECO) t possessed standing (as a matter of discretion) and that it i
i i
j i
9312060139 931130
)
PDR ADOCK 05000312~
=
=-
_j
~-
=_ _
t t
' had submitted at least one admissible contention.
The commission further permitted ECO to file additional proposed contentiona in three designated areas, subject to various specified conditions.
ECO responded by submitting, within the time periods specified by the Commission, proposed contentions in the three areas defined by the Commission--decommissioning funding, loss of offsite power (LOOP), and the environmental assessment / finding of no significant impact.1 SMUD and the l
NRC Staff each submitted responses opposing admission of each of the proposed contentions.2 On September 21-22, j
t I
L 1
i 1ECO's Contention on Licensee's Proposed Decommissioning Funding Plan, dated March 22, 1993 [ Funding Contention); ECO's Contention on SMUD's Consideration of_the Loss of Offsite Power, dated April 1, 1993 [ LOOP Contention); ECO's Contentions on the Staff Environmental Assessment (EA), Findings of No Significant Impact,-and j
Safety Evaluation, dated July 12, 1993 [EA Contention).
I 2 Licensee's Response to ECO's Proposed Decommissioning Funding Plan Contention, dated April 1, 1993 [SMUD Funding Response); NRC Staff Response to ECO's Contentions Regarding the Funding of Decommissioning, dated April 12, 1993 [ Staff
_I Funding Response); Licensee's Response to ECO's Proposed LOOP Contentions, dated April 13, 1993 [SMUD LOOP Response);
NRC Staff Response to ECO's Contention Regarding the Loss of Offsite Power, dated April 21, 1993 [ Staff LOOP Response);
Licensee's Answer to ECO's Contentions on the Staff Environmental Assessment, Findings of No Significant Impact, and Safety Evaluation, dated July 27, 1993 [SMUD EA Response); NRC Staff Response to ECO's Contentions on the Staff Environmental Assessment, Finding of No Significant Impact and Safety Evaluation, dated August 2, 1993 [ Staff EA Response).
I
~
l' !
1993, the Licensing Board conducted a prehearing conference o
i to consider these filings.3 4
In addition, on September 7, 1993, SMUD filed a motion j
under 10 C.F.R. S 2.749 for summary disposition of ECO's original LOOP contention that had been admitted by the
.}
Commission.4 On September 27, 1993, ECO filed an answer in opposition to SMUD's motion,5 whereas the Staff filed a I
5 response in support of SMUD's motion.6 Although we did not i
consider this motion at the September 21-22 prehearing conference, we do not believe that further argument on this motion is necessary for us to reach a decision.
Because of r
the close relationship of the subject of the admitted j
contention to the proposed LOOP contention, we here deal both with the LOOP contention and the summary disposition motion.
l Based on our review of all of these filings, and our i
consideration of the. arguments proffered at the prehearing j
conference, we hereby conclude that a portion of SMUD's-3The conference was announced by the Licensing Board's Notice of Prehearing Conference, dated August 31, 1993, published at 58 Fed. Reg. 7306 (September 8, 1993).
4 Licensee's Motion for Summary Disposition of ECO's Original LOOP Contention, dated September 7, 1993.
SECO's Answer in Opposition to SMUD's Motion for Summary Disposition of ECO's Original LOOP Contention, dated September 27, 1993.
6NRC Staff Response in Support of Licensee's Motion for Summary Disposition of ECO's Original LOOP Contention, dated September 27, 1993.
i
-4 contention on decommissioning funding should be admitted but that no other contention is admissible.
We are also.
granting sunmary disposition of ECO's original LOOP f
contention.
I A.
General Standards.
As we observed earlier in this proceeding, the rules governing the admissibility of contentions (10 C.F.R.
SS 2.714(b) and (d)) were amended in 1989 "to raise the threshold for the admission of contentions."
LBP-92-23, 36 NRC 120, 132 (1992), reversed on other crounds, CLI-93-3, 37 NRC 135 (1993).
We explained that those rules now require, inter alia, that there be a specific statement of law or fact to be raised or controverted, a brief explanation of the bases of the contention, a concise statement of the
' facts or expert opinion' that support the contention, together with' references to specific sources and documents of which the petitioner is aware and upon which the petitioner intends to rely, and sufficient information to show that a genuine dispute exists with the applicant (or licensee) on a material issue.
On NEPA issues, the contentions are to be based [at least initially] on the applicant's or' licensee's environmental report [ER].
Further, the contention must be of consequence in the proceeding and, if proved, entitle the petitioner to relief of some sort.
36 NRC at 132.
Some further guidance is, additionally, warranted.
In adopting this higher threshold, the Commission was H21 requiring that an intervenor or petitioner prove its case prior to the admission of its contention.
As set forth in p
the Statement of Considerations, This requirement does not call upon the intervenor-to make its case at this stage of the proceeding, but l
t
~
r
, 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.
54 Fed. Reg. 33168, 33170 (August 11, 1989).
In addition, the rules are intended to require the intervenor to read a
pertinent portions of an application, and to state the applicant's position and the petitioner's opposing view.
When asserting that the application and supporting material "it lack certain facts or do not address a relevant matter, will be sufficient for the intervenor to explain why the application is defici nt."
Id.
However, as we interpret h
the revised rules, the mere circumstance that an intervenor may not cite an application document in its contention does j
not Der se invalidate the contention--although in particular circumstances it may bear upon the contention's admissibility.
The scope of permissible contentions is normally bounded by the scope of the proceeding itself.
Here, the i
scope of issues comprehended by the Commission's remand orders is narrower:'
it is confined to the subjects identified by the Commission in CLI-93-3 and CLI-93-12.
Beyond that, of course, an intervenor may always seek to file' late-filed contentions, which are subject to a balancing of the five factors identified in 10 C.F.R.
J i
m.
)
. S 2.714 (a) (i)-(v).7 Given the Commission's explicit recognition of that circumstance in CLI-93-3, it is clear that, from the standpoint of jurisdiction, we may also a
consider any such contentions that may fall within the scope r
of the entire proceeding.
Finally, it is clear that the " raised threshold" incorporated by the Commission into its contention rule must be reasonably applied and is not to be mechanically construed.
The Commission has long held that its rules of procedure are not to be applied in an " overly formalistic" manner.8 Nothing under the raised threshold appears to contradict that approach.
Thus, failure of an intervenor or petitioner to dot an "i" or cross a "t" should not necessarily undermine the acceptability of a contention, particularly where a significant health and safety or environmental issue is i
attempted to be raised.
In affirming the validity of the Commission's raised threshold, the Court of Appeals only upheld the rule on its face--explicitly noting that the rule could be applied to prevent all parties from raising material issues, that the rule might thus be misapplied, and b
Some portions of the contentions identified by the 7
Commission, to be described in detail infra, must likewise satisfy the late-filed factors.
BConsumers Power Co. (Midland Plant, Units 1 and 2),
CLI-74-3, 7 AEC 7, 12 (1974), citing American Farm Lines v.
Black Ba]l Freicht Service, 397 U.S. 532 (1970).
. - _ ~
... -.. ~. ~.. ~.
. that it was not ruling on any such instances.
Pacific Gas &
Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and j
2), LBP-93-1, 37 NRC 5, 13 (1993), citing Union of Concerned Scientists v.
NRC, 920 F.2d 50, 56-(D.C.Cir. 1990).
Under CLI-93-3, 37 NRC at 154, ECO was required in f
certain circumstances to address the Commission's requirements for late-filed contentions, which essentially involves addressing the five factors found in 10 C.F.R. 5 2.714 (a) (1) (i)-(v).
These factors are:
(i)
Good cause, if any, for failbre to file on time; (ii)
The availability of other means whereby [ECO's]
interest will be protected; (iii)
The extent to which [ECO's] participation may reasonably be expected to assist in developing a l
sound record; (iv)
The extent to which [ECO's] interest will be l
represented by existing parties;
{
(v)
The extent to which [ECO's]^ participation will broaden the issues or delay the proceeding.
Of the five factors, the preeminent factor has long been recognized as factor (i), good cause for failure to file-on time.9 Although the regulations call for a 1
l balancing test, it has been held that where'a petitioner or intervenor fails to show good cause for filing a late petition or contention, the other four factors must weigh heavily in its favor in order for a petition or contention 9 Nuclear Fuel Services. Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975).
.. i P
+
. l to u franted.
Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 397 (1983),
citing Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1765 (1982).
As in other areas, however, in considering late-filed contentions our balancing of the late-filed factors in 10 C.F.R. S 2.714(a) must also be reasonable--taking into account not only a balancing of the lateness but also each of the other factors, including mitigating circumstances, if any.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1045-47 (1983).
Indeed, in balancing these factors, a licensing board has " broad discretion in the circumstances of individual cases."10 To be accepted, a late-filed contention must of course satisfy not only the late-filed factors but also the various contention requirements that we have outlined.
There are two approaches we might take in considering both the late-filed factors and contention requirements.
On the one hand, we could first evaluate the late-filed factors' and then, only if we determined that those factors warranted t
acceptance of a contention, determine whether the contention l
I requirements were satisfied.
We choose alternatively to analyze the contention requirements first, to identify l
whether or not a significant health and safety or 10 West Valley, suora, 1 NRC at 275.
. environmental question is being advanced.
If so, we would then consider whether the timeliness factors are themselves I
satisfied.
Those factors include as a forceful ingredient the contribution to an adequate record likely to be made by the intervenor.
In this way, we can gain further assurance that a significant health and safety or environmental i
problem is not being swept under the rug by insignificant procedural technicalities.
See Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2),
LBP-93-9, 37 NRC 433, 436-37 (1993).
j In reviewing the proposed contentions before us, as well as the summary disposition motion on the single admitted contention, we will keep these principles in mind.
We turn now to those contentions.
B.
Decommissioninc Fu g4,ng.
1.
ECO's Contenticn.
ECO's proposed decommissioning funding contention reads as follows:
^ing Funding Plan is SMUD's proposed Decomv.. asa inadequate as a matte
- f act and of law as detailed below not only (a) bE 4,Si the funding plan is inadequate to meet th
.,at targets expressed, but also (b) because SMUD lacks the resources to meet those L
targets, (c) because the mechanism of public and Nuclear [] Regulatory Commission ("NRC") review only once every five years fails to adequately protect the health and safety of the public by failing to alert the NRC Staff and the public to growth in cost estimates and/or slippages in decommissioning funding in a timely manner, and (d) because the funding target itself is grossly underestimated due, among other things,_to inadequate estimates of the technical issues to be
+
I t faced and the technical and manpower resources that will be demanded during the decommissi ling task.ll In support of this broad contention, ECC irst states that it will rely on the expertise of Dr.
A.
David Rossin and/or David R. Crespo.12 Later, it clarified that it was f
relying primarily on Dr. Rossin.13 Next, the contention sets forth 14 different bases or reasons in support of its general conclusion (one of which I
was withdrawn at the September 21-22, 1993 prehearing i
conference 14 ).
Summarized briefly, these are:
1.
Increase in long-term debt by 8.8%/ year and increase in dependence upon purchased power; and current avoidance of rate increases in favor of long-term indebtedness; collectively creating uncertainties of confidence in the firmness, availability and cost of power and eventually creating tidal wave of debt that will threaten the viability of the funding plan.
2.
Decommissioning cost estimate unreliable because i
l premised on original cost of Independent Spent Fuel Storage Installation (ISFSI) that has been withdrawn and no new design and cost estimate available.
llFunding Contention, at 1-2.
i 12 Summaries of the qualifications of these' experts were allegedly "previously.
provided to the Atomic Safety and Licensing Board by affidavit" (Funding Contention, at_
j 2); the Board located the affidavit of Mr. Crespo but was unable to locate any dealing with the qualifications of Dr. Rossin.
(Dr. Rossin's June 25, 1992 affidavit deals only with the characteristics of ECO as an organization.
At l
i the prehearing conference, ECO conceded that Dr. Rossin's qualifications affidavit may not have been filed in the j
current proceeding (Tr. 197).
1 13Tr. 309.
14Tr. 273.
i i
i
- 3.
SMUD cost estimates inadequate because premised on NRC decommissioning plan approval by mid-1992, which was not forthcoming.
Mis-estimates also reflect poor managerial qualifications which in turn cast doubt on t
adequacy of cost estimates.
4.
Increase in decommissioning liability cost estimates for 1991 reflects adversely on SMUD management competence cnd dictates semi-annual report to NRC, to be made publicly available.
5.
Unreliability of estimated savings to fund decommissioning to be achieved from Conservation and Load Management Programs.
6.
Failure of decommissioning plan and associated funding plan to make adequate provision for physical and personnel security and, in particular, to provide a fitness-for-duty program.
7.
Withdrawn.
8.
Failure to include adequate funds in decommissioning cost estimate and funding plan for measures to identify all on-site areas containing radioactivity.
9.
Cost estimate and funding plan inadequate for failing to provide adequate technical basis for assumption of single airborne pathway for release of radioactivity; also failure to provide measures to address potential for releases in the context of accident or terrorism scenarios.
10.
Decommissioning Plan and related cost estimates inadequate for determining radionuclide inventory and levels in spent fuel sludge and, accordingly, raise severe questions of adequacy of financial planning for required radioactive decontamination.
11.
Lack of long-term overall financing plan, i
including planned rate increases, as raising questions concerning adequacy of funding plan.
- 12.
Funding inadequate since based on inadequate
[
technical specification bases for spent fuel level and spent fuel temperature; examples of specified scenarios not considered are provided, and failure to include costs of' technical corrective measures asserted.
h 13.
Funding Plan premised, inter alia, on growth through interest earnings at rates that_now are unrealistically high; funding plan should consider growth at current interest rates and make provision for possible lower rates.
3 14.
Funding Plan inadequate because possibility that spent fuel pool may not be closed by 1998 (as projected) might lead to increased costs of $8-million/ year from 1999 through 2008 (total $80 million in 1991 dollars); annual review and five-year revision also inadequate.
2.
SMUD and NRC Staff Positions.
SMUD and the NRC Staff oppose the admission 31 each part of the funding contention, as well as the broader contention, on virtually identical grounds.
They claim, inter alia, that insufficient bases have been pleaded, that t
insufficient descriptions of the funding problems have been advanced, that SMUD has identified no significant funding issue, and, importantly, ECO has failed to include citations to those portions of the Funding Plan with which it disagrees.
They claim that certain attacks on the Funding l
Plan are in reality challenges to the Decommissioning Plan (DP) that could have been submitted at the initiation of the proceeding and hence are untimely, without an adequate showing of good cause for the untimeliness.
With respect to j
funding for the ISFSI, they each claim that tuch consideration is barred by regulation.
j We-will discuss the particular points raised by SMUD and the Staff in conjunction with our consideration of i
I
various portions of the funding contention, to which we now l
turn.
3.
Analysis.
As a starting point, we reiterate that ECO intends this contention, with all of its bases, to be viewed collectively Even as a challenge to the adequacy of the funding plan.
though some or even all of the bases may not themselves reflect significant flaws in the plan, collectively they may constitute a meaningful deficiency in the plan.
In our review, we have considered the contention in that context, even though we will discuss each basis, or related groups of bases, separately.
a.
Fundino Contention. Bases 1.
S.
11 and 13.
(i)
Eco's claims.
These bases are analytically similar in their support for the proposition that SMUD j
allegedly is growing weaker financially, leading to a situation where it will not be capable of fulfilling its funding commitments, as set forth in the Funding Plan.
Reasons provided by ECO include an alleged increase in SMUD's long-term debt of 8.8% annually (approximately $850
.i million/ year contrasted with net earnings of $37 l
million15 ), an almost doubling of SMUD's dependence on purchased power from 1988 to 1991 to fulfill its production needs, current avoidance of rate increases through issuance I
i 15Tr. 217, 219, 224, 303-04.
1
e of long-term bonds, premise of cost savings through reliance on Conservation and Load Management Program assertedly unreliable because of failure of the program to achieve its goals, failure to have an overall financing plan reflecting growing power needs and anticipated necessary rate increases, and overly optimistic projected earnings based on interest rates higher than are now achievable.
In support of one or more of these supporting bases, ECO cites segments from SMUD's 1991 annual report (supplemented at the prehearing conference with references to SMUD's newly-issued 1992 annual report), SMCD's 1991 load forecast, and general non-specific references to interest (supplemented at the prehearing conference with rates additional references, in part derived from the NRC Staff response).
ECO also reiterates the alleged absence of a long-term financing plan.
It concludes that its basic contention is that the funding plan is inadequate because "it does not consider many of the factors that need to be considered in order to reach a reasonable estimate of the "16 total funds needed (ii)
SMUD and Staff Positions.
With respect to Basis SMUD and the Staff each rely primarily upon pleading 1,
deficiencies.
They assert in essence that ECO has failed to make any reference to the funding plan itself but rather is 16Tr. 190.
\\
1 4
7
. relying on statements from other sources (notably, SMUD's annual reports) taken out of context.
They add that SMUD's bond rating has in fact gone up over the past few years.17 They clain with respect to Basis 5 that no nexus has been shown between the financial plan and the Conservation and Load Management Program.18 SMUD observes that, contrary to ECO's assertions, the Funding Plan makes no reference to the success of the Conservatio.2 and Load Management Program, whereas the Staff, acknowledging that ECO's cited basis provides a vague reference to a relationship between the Conservation and Load Management Program and the funding plan, asserts that the citation does not support ECO's claim.
With respect to Basis 11, SMUD acknowledges that it has not provided NRC with an overall financial management plan but asserts that none is required or desired by the Staff.
They each claim that bond-rating agencies The Staff agrees.
perform those reviews for investors and the general public.
The Staff also stresses SMUD's inherent rate-setting authority, claiming that such authority "would be more than adequate to compensate for any funding deficiencies."
SMUD asserts that it does indeed have such a plan,
- Finally, which is on file with California regulatory agencies, 37Tr. 199, 222, 225, 226.
18Try 250.
O
i i
although never formally submitted to NRC.19 (The Staff i
indicated that it performed an independent review of SMUD financial information prior to issuing its SER.20)
Finally, with regard to Basis 13, SMUD and the Staff attack the contention largely for pleading deficiencies in i
failing to identify the allegedly erroneous interest rates or those rates deemed by ECO to be appropriate.
They each claim that the funding plan assumes a real rate of return i
(over inflation) of 3.2% and that these rates will be evaluated every five years.
Again, they view the five-year 3
review as invalidating any claim as to the adequacy'of interest rates.
(iii)
Board Analysis.
We agree with SMUD and the Staff that each of these bases for ECO's claims includes some pleading deficiencies.
Pleadings, however, need not be technically perfect, even under the revised rules governing this proceeding.
In particular, perhaps through inadvertent omission on the part of ECO, there is little description of i
the qualifications of ECO's expert on this question, Dr. A. David Rossin.21 On the other hand, based on what ECO provided at the prehearing conference, we are unprepared
~
to dismiss Dr. Rossin as lacking any qualifications for this 19 Tr. 305.
I 20Tr. 308-09.
i 22See Tr. 186-87, 189, 309.
W w
... contention.
He served as an executive of Commonwealth Edison Co. and later as Assistant Secretary of Energy for Nuclear Affairs of the U.S.
Department of Energy, and is a past president of the American Nuclear Society--positions in which he is likely to have had exposure to, if not detailed involvement with, financial matters.22 In any event, collectively, SMUD and the Staff appear As the Commission to be ignoring the forest for the trees.
recently observed, although in a somewhat different context, a " compartmentalized reading of [ECO's] pleadings"23 has led to their positions that no legitimate dispute has been set forth.
Although each of these individual bases may not in itself constitute a significant challenge to an aspect of the funding plan, collectively the foregoing four bases appear adequate to do so.
First, the circumstance that the funding plan is to be reviewed at one or two-year intervals and updated at five-year intervals cannot legitimately serve as a rationale 24 for not looking at alleged current deficiencies in the 22As ECO asserts (Tr. 310-11), the extent of Dr. Rossin's qualifications will, of course, be at issue'in an evidentiary hearing or in conjunction with a motion for summary disposition.
23See Cleveland Electric Illuminatina Co.,
CLI-93-21, 38 NRC (slip op., at 12) (September 30, 1993).
24Tr. 200.
- [
~
. funding plan.
For, if that were so, the hearing rights afforded by the Commission's rules and reinforced by CLI-93-03 would be essentially meaningless.
We decline to construe the contention rules as mandating or even i
permitting such a result.
In that connection, the results of the reviews need not even be submitted to the NRC and hence would not likely be made available to the public under F
NRC procedures.25 That NRC might have a right to inspect t
I the documentation of such reviews at the facility does not provide any meaningful relief to ECO or its members.26 l
Second, for similar reasons, the mere circumstance that SMUD has the legal authority to set its own rates cannot as l
a matter of law undercut attempts to demonsrrate financial weakness.27 Such a construction would also improperly circumscribe the hearing opportunities offered by NRC to demonstrate (as ECO seeks to do) practical limitations on i
the exercise of that legal authority.
j Third, it is clear that bases or foundations for each of these segments of the contention are set forth..Not only l
are discernible issues set forth, they have been explained
.f with sufficient clarity to require reasonable minds to
{
25Tr. 347-48.
Inspection of such revised financial estimates is not 26
'i part of the routine inspection modules at this time.
Tr. 348.
l 27See Tr. 193-94, 199.
?
i
inquire further.
Cf Vermont Yankee Nuclear Power Coro, v.
t NRDC, 435 U.S.
519, 554 (1978).
Although that standard could support admissibility under the earlier rules, it has never been explicitly revoked and can at least be utilized under the revised rules to determine whether material issues have been proffered.
1 Fourth, many of the objections advanced by SMUD and the Staff are merely disagreements as to the merit = of a claim.
That is not a ground for dismissing a proposed contention, although it may serve as a foundation for summary disposition pursuant to 10 C.F.R. 5 2.749.
Fifth, although the regulations do not_ require the submission of a financial resource plan, the importance of such a plan is indicated by the fact that the Staff concededly performed a review of SMUD financial information in reaching its conclusions as to the adequacy of the funding plan.
Indeed, in a non-adjudicatory memorandum (that was provided to the Board and parties), the NRC technical staff indicates that it is pursuing plans to require financial planning estimates to be submitted earlier I
than is now the case.28 Such a financial plan is clearly 28 Memorandum for the Chairman, NRC, from James M.
Taylor,. Executive Director for Operations, dated i
September 14, 1992, re: Evaluation of Recent Decommissioning Cost Estimates and the Implications for Managing and Storing i
Spent Nuclear Fuel, transmitted to the Board and parties by copy of letter from Stewart W.
Brown, NRR, to Mr. James R.
Shetler, SMUD, dated November 17, 1992 (hereinafter, Taylor September 14, 1992 Memorandum).
m
l l pertinent to the issue before us, and it is not available in the NRC docket file for review by ECO.
(The availability through California agencies to members of the public in California does not serve as a satisfactory substitute for what ECO is seeking here.)
l Finally, these four bases taken together appear to constitute a material portion of the funding plan and appear to raise significant questions as to the viability of that plan.
The differences in interest rates alleged in Basis 13 i
could amount to $23 million29, if not the $52 million initially asserted by ECO30--both of which are significant in terms of the overall $280 million projected cost of the financing plan (particularly when considered along with the additional costs discussed below).
Reconciliation of these conflicting claims clearly amounts to a question of fact suitable for resolution through an evidentiary hearing or, if appropriate, summary disposition.
For these reasons, Bases 1, 5,
11 and 13 are hereby admitted (collectively) as support for the decommissioning funding contention.31 29Tr. 569.
30Tr. 329.
31In accepting basis 1, we are excluding the allegation
{
concerning "the principle that the beneficiaries of Rancho Seco could pay the cost of decommissioning to the extent possible.
See Tr. 221-22.
That matter is beyond NRC's jurisdiction.
i
. j b.
Fundina Contention. Basis 4.
Under this basis, ECO seeks a semi-annual report by SMUD to NRC, to be made publicly available, premised upon an asserted increase in decommissioning cost estimates of $75.4 million in 1991 alone (citing SMUD*s 1991 financial statements).
The increase is also asserted to reflect management incompetence in estimating costs.
r SMUD responds by attributing the increase in costs to the substitution of a site-specific cost study for the generic estimate previously relied on by SMUD.
It denies that the increase reflects any management incompetence.
I Moreover, it relies on Reg. Guide 1.159 at 1132, as support for the five-year adjustment that it has adopted.
It faults ECO for not discussing or criticizing the Reg.
Guide time period.
For its part, the Staff faults ECO for not pointing to a specific defect in the Decommissioning Plan (DP) or a failure to adherc to 10 C.F.R. SS 50.75 or 50.82.
The Staff also regards ECO's claim as an impermissible attack on the regulations.
We conclude that the reasons set forth in this basis are inadequate to require or even suggest that management is inadequate or that a semi-annual reporting period should be adopted.
We are thus not accepting this basis.
j i
32 Regulatory Guide 1.159, " Assuring.the Availability of Funds for Decommissioning Nuclear Reactors," August, 1990,.
{
at p. 1.159-11'("at least once every 5 years" (emphasis supplied)).
L m
- 22 However, in the consideration of Bases 1,
5, 11, and 13, which we have accepted, we will permit ECO to assert that a more-frequent reporting period should be adopted (as well as that the reports should be publicly available).
This is not an attack on the regulations, as the Staff i
asserts; the 5-year period does not stem from a regulation but only from a regulatory guide implementing that regulation.
The Commission has long accepted contentions f
challenging the adequacy of Regulatory Guides.
- See, e.c.,
Gulf States Utilities Co.
(River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 772 (1977).
In any event, the j
Guide itself does not mandate or prescribe a 5-year period--
it merely sets that time period as a maxinum.
We will thus permit ECO to attempt to establish that a lesser period is 1
appropriate.
(For similar reasons, we are permitting adjudication of the reporting period as a part of Basis 14, infra.)
Accordingly, we are not accepting the basis advanced for this aspect of the funding contention and thus are rejecting its litigation as a separate item, as sought by ECO.
But we will permit adjudication of the acceptability of the current reevaluation period in the context of the
{
previously accepted Bases 1, 5,
11 and 13, as well as Basis
[
14, which we hereinafter accept.
4 i
F
)
t
. c.
Fundina Contention, Bases 2 and 14.
(i)
ECO's claims.
These bases are related in that they both involve costs related to the proposed' Independent Spent Fuel Storage Installation (ISFSI).
Basis 2 portrays SMUD*s estimate of the total cost of decommissioning as unreliable, on the ground that it was premised on an original estimate of the cost of an ISFSI that subsequently was withdrawn.
ECO cites cost figu) as for the earlier, withdrawn version and claims that "no new design and accompanying cost estimate supported by actual contract pricing is available.33" Basis 14, although it does not explicitly mention the
[
ISFSI, inferentially relates to the ISFSI by alleging that the Decommissioning Funding Plan is inadequate for failing to include costs of storing fuel in the spent fuel pool should other spent fuel storage (i.e., the ISFSI) not be available by 1998, as predicted in the Plan.
ECO deems these costs to be $8 million annually,-a total of $80 million by 2008, when fvading is to be complete, and asserts that the Funding Plan is deficient in that amount.
ECO cites a SMUD response to a Staff inquiry as a basis for the possibility that the ISFSI may not be completed by 1998.34 i
(ii)
SMUD and Staff Positions.
With respect to Basis f
33 Funding Contention, at 3.
34 Funding Contention, at 10-11, citing DAGM/NUC 92-198 (August 6, 1992).
D
I
- 24 2, SMUD acknowledges that projected ISFSI costs were included in its site-specific decommissioning cost study and that it chose to fund ISFSI costs by deposits into the same Both fund through which it will fund plant decommissioning.
SMUD and the Staff claim, however, that ISFSI costs are not within the scope of the decommissioning rule and are not considered decommissioning expenses but rather are operating expenses addressed in 10 C.F.R. S 50.54(bb).
They cite i
10 C.F.R. S 50.75(c) n.1, which states that decommissioning funding costs "do not include the cost of removal and i
i "35 disposal of spent fuel SMUD and the Staff also claim that matters related to the ISFSI, including costs, were considered in a' separate proceeding, noticed at 57 Fed. Reg. 1286 (January 13, 1992),
in which ECO has not sought to participate.36
- Finally, SMUD asserts that, in any event, the modified ISFSI costs are predicted to fall within the same range as the abandoned design.
For its part, the Staff additionally asserts pleading deficiencies, claiming that ECO has not identified I
an expert who will deal with ISFSI costs nor provided a precis of testimony or other evidence or, indeed, even e
i 35SMUD Funding Response, at 20-21; Staff Funding Response, at 12-13.
The section is quoted in full at p. 26, infra.
'l 36SMUD Funding Response, at 21; Tr. 203, 206.
i l
i f adequately asserted that revised ISFSI costs will exceed the l
budgeted costs.37 With respect to the related Basis 14, SMUD and the Staff eaca claim that the contention is barred from consideration in this proceeding by 10 C.F.R.
l 5 50.75(c) n.1.
Beyond that, SMUD claims that the
$8 million/ year cost alleged by ECO can in fact be derived j
from the site-specific cost study that is included in the Funding Plan.
SMUD and the Staff both claim that ECO has failed to plead facts or expert opinion to demonstrate that' I
the ISFSI will not be completed by 1998 (as contemplated by the DP) and that those alternative costs will in fact occur.-
l t
(iii)
Board Analysis.
At the outset, it is important to note that ECO's specific claims under Basis 2 are clearly focused on the l
cost of casks.38 ECO questions the propriety of using cost estimates _for an original ISFSI (included in'the j
funding plan), in circumstances where the original ISFSI l
design has been withdrawn and a new design not yet submitted.
As we observed in our earlier decision, LBP '
23, 36-NRC 120, 136, SMUD in fact asked the Staff to suspend-its safety review of the ISFSI pending selection by SMUD of f
I a new cask.
The difference'in cost between the original' l
i 37 Staff Funding Response, at 13.
38See Tr. 209-12.
, t ISFSI and a newly designed ISFSI is likely to reflect primarily the difference in cost of casks, The regulatory provision relied on primarily by SMUD l
and the Staff appears as footnote 1 to a provision setting forth minimum amounts required to demonstrate reasonable assurance of funds for decommissioning a reactor (10 C.F.R.
j S 50.75).
It reads as follows:
Amounts are based on activities related to the definition of " Decommission" in S 50.2 of this t
F part[39] and do not include the cost of removal and i
disposal of spent fuel or of nonradioactive strcctures and materials bevond that necessary to terminate the
[
license (emphasis supplied).
ECO construes this provision not to bar consideration of costs of on-site storage of spent fuel in an ISFSI (including constructing the ISFSI) but rather to extend only to the costs of ultimate removal and disposal of the spent fuel in a spent fuel repository.40 l
r On the other hand, to contradict the rather clear i
language upon which ECO relies, SMUD and the-Staff each refer to legislative history which, they claim, demonstrates J
that the Commission intended to include interim on-site storage in the costs that are barred from consideration.-
The legislative history cited is at best mixed.
Only NUREG-l 39S 50.2 Definitions.
" Decommission" means to remove (as a facility) safely from service and reduce l
residual radioactivity to a level that permits release of i
the property for unrestricted use and termination of license.
40Tr. 205-06, 350-51.
l i
i I
- -.'l
I 1221 would appear to indicate that interim storage, as well as removal and disposal, are included in the regulatory bar.
f And even the Staff (although not SMUD) concedes that the costs of purchasing casks and transporting them from the fuel pool to the on-site ISFSI may not be barred from I
censideration in this proceeding, although it deems these costs to be insignificant.41
{
Significantly, NRC's technical staff believes that costs of interin on-site storage should be viewed as decommissioning funding costs.
In a memorandum to the Chairman of the Commission, James R. Taylor, Executive Director for Operations, has explicitly stated:
Spent fuel management and storage cost estimates are increasing, in large part because of the delay in DOE's spent fuel repository availability date to the year 2010.
Clearly. utility costs for spent fuel manacement i
and storace until DOE takes title are accrocriatelv
[
considered by the NRC as decommissionina costs.
j Specifically, they are relevant to releasing a reactor site for unrestricted use and bear on public health and safety (emphasis supplied).42 l
Moreover, it notes that many licensees
- estimates in fact include such costs.43 Indeed, SMUD's estimates included those costs.
They are thus incorporated into the funding f
plan before us.
l Tr. 207-08, 210.
{
41 Taylor September 14, 1992 Memorandum, supra, note 28,
[
42 t
at 2.
43D1., at 1.
6
i J
l In these circumstances, segmentation of the proposed i
ISFSI costs into another procedural box appears unfair to t
r ECO.
It is not even clear that, for proceedings pursuant to l
10 C.F.R. S 50.54 (bb) or 10 C.F.R. Part 72 that arise (as here) from a Part 50 licensing activity, financial matters could even be considered.
See 10 C.F.R. S 50.33(f).
As ECO asserts, the regulatory requirement in 10 C.F.R. S 50.75 n.1
{
is far from clear.
But even if certain financial matters could be considered under that authority, it appears that the cost of casks for storage at an ISFSI may not be included, inasmuch as the casks could very possibly be purchased by the user, not the owner or operator, of the ISFSI.
In any event, in the ISFSI proceeding to which ECO is being steered for Basis 2, such costs were not in fact under consideration.
The ISFSI application explicitly stated:
The District's total cost of constructing the ISFSI and purchasing the number of casks required to place the spent nuclear fuel and control components into dry storage is estimated to be between $13.7 and $15.8 million, in 1991 base dollars.
The collection of these funds, as well as the costs for ongoing ISFSI support activities, are discussed in the
" Decommissioning Cost Study for the Rancho Seco Nuclear j
Generating Station" which was submitted as Appendix B to the RSNGS Proposed Decommissioning Plan.
Funds for ISFSI construction and ongoing ISFSI support are included in the current decommissioning funding program 44 for RSNGS.
s
-I 44 Rancho Seco ISFSI License Application, noticed at
{
57 Fed. Reg. 1286 (January 13, 1992), at LA-3.
See also LA-17.
i P
r
i k
- 29 In other words, if ECO were to have sought to challenge f
ISFSI costs in the ISFSI proceeding, it would have learned, I
from the application on file, that those costs were set i
forth in the underlying documentation for this proceeding, f
But when it comes to this proceeding to challenge ISFSI
{
costs, it is told that it can only question those costs in.
l the ISFSI proceeding.
This is the type of procedural irregularity that could critically undermine the
-acceptability of the Commission's revised threshold for submitting contentions.
For these reasons, we reject the claim of SMUD and the Staff that the costs that ECO seeks to have considered (in particular, the cost of casks) are barred from consideration in this proceeding.
Those financial costs do not appear to I
be excluded by the regulatory bar of 10 C.F.R. S 50.75(c) n.1.
Although ambiguous, that bar appears to cover only
" removal and disposal" of spent fuel.
Moreover, that the r
new costs are likely to be comparable to the initial costs, as claimed by SMUD45, is a matter of substance that should not be resolved at the contention stage--particularly where, as here, there is no documented record (available to the public) substantiating such revised costs.
Accordingly, we are accepting Basis 2 as a part of the funding contention.
f t
45SMUD Funding Response, at 22.
i h
s i
-~ !
Y As for Basis 14, that claim does not appear to be an ISFSI claim at all, although it has some bearing on those types of costs.
It more accurately reflects potential fuel i
storage costs that could eventuate if the ISFSI were not timely licensed.
It also allegedly represents a substantial (S8 million annually, for as many as 10 years) that sum i
could materially affect the adequacy of the funding plan.
Because its litigability under 10 C.F.R. S 50.54(bb) (as suggested by SMUD and the Staff) is at best questionable, and because these potential costs could impact the adequacy of the funding plan, we also accept Basis 14 for litigation.
d.
F'undinc Contention. Basis 3.
Under this basis, ECO claims that the SMUD cost estimate was premised upon approval of the DP by mid-1992 and hence, because approval has not yet occurred, is for that reason unreliable.
ECO cites SMUD's 1991 annual report as a basis for the expectation but does not explain why the approval date makes a difference.
ECO further claims that the misestimate reflects adversely on SMUD's management i
competence.
SMUD and the Staff claim that the asserted delay in i
approval does not affect the validity of the cost estimates, particularly absent any reasons why it should.
They further j
assert the lack of any basis for the claim that costs are apremised" on a particular approval date, and the lack of
)
j any concrete example of costs that would be affected.
(The 1
1 4
i i
i cited 1991 annual report includes the expectation but in no way relates it to cost.)
Further, SMUD and the Staff claim a lack of basis for the allegation concerning management competence.
We agree with the SMUD and Staff positions on this r
basis.
Further, we note that ECO does nct have " clean t
hands" with regard to this particular assertion--for, by initiating both this proceeding and others, it is one of the causes for the delay.
For those reasons, we decline to accept this basis for litigation.
e.
Fundina Contention, Basis 6.
t i
This basis--as well as Bases 8, 9,
10, and 12, to be discussed below--are all analytically similar.
They each assert a failure to provide adequate funding for certain defined safety measures.
We will treat Basis 6--failure to fund adequate physical and personnel security measures and, in particular, a fitness-for-duty program and vehicle j
barriers--separately in view of the degree of emphasis accorded to it by ECO.
SMUD challenges Basis 6 for a variety of reasons.
It asserts that many of the measures disputed by ECO were approved prior to this proceeding and thus are'not within r
i the scope cf this proceeding; that the regulation requiring fitness for duty programs (10 C.F.R. 5 26.2) is not
}
applicable to decommissioned reactors (and, indeed, became i
inapplicable to Rancho Seco upon issuance of its possession-
[
t t
k 1 ;
only license); and, finally, that to the extent that ECO is generally challenging the security plan, it has presented no s
real nexus to funding (supported by facts and/or expert 5
opinion) and its challenge accordingly is to the DP and hence is untimely (with no attempt to deal with the lateness factors).
It adds that ECO has made no reference to Chapter 8 of the DP (" Plant Security") or to the cost that SMUD is in fact allocating to Plant Security.46 SMUD also asserts l
other pleading defects and concludes that the cost of the one measure that could be applicable (vehicle barriers) i would amount to $100-200,000 and, accordingly, is insignificant in the context of the $280 million funding plan.
For its part, the Staff asserts similar reasons, focusing on the basis being a challenge to the DP and hence untimely.
The Staff does not mention vehicle barriers but i
adds that the terrorism claims are precluded from consideration by 10 C.F.R.
S 50.13.
It acknowledges the I
lack of applicability of the fitness-for-duty regulations I
but adds that ECO has shown no connection between such requirements and funding--commenting that the lack.of need for full security and for fitness-for-duty programs in fact reduces costs.
?
46Tr. 268.
l l
. We consider this basis to have little relevance to funding and hence to represent a challenge to the DP, not the funding plan.
As such, it is untimely, without any attempt by ECO to justify such untimely submission.
More important, ECO has failed to indicate any fundamental problem with the security plan, other than those that quarrel with the application of defined Commission regulatory requirements to that plan.
Therefore, we reject this basis both for lack of significance for the funding plan and (based on a balance of timeliness factors, with factors (i), (iii) and (v) against ECO's position) for its untimely submission.
(f)
Fundina Contenti.pn, Bases 8, 9,
- 10. and 12.
(1)
ECO's Claims.
As under Basis 6, these bases essentially challenge the funding plan for assertedly failing adequately to include funding for certain safety-related requirements.
Specifically, they claim lack of cost estimates, or inadequate funding, for (1) measures to identify all onsite areas containing radioactivity and for performing a comprehensive cleanup and decontamination or, as appropriate, for erection of barriers (Basis 8);
(2) providing an adequate technical basis for SMUD's assumption that there will only be a single airbcrne pathway for the release of radioactivity, as well as measures to deal with accident or terrorism scenarios (Basis 9);
- 34 (3) determination of the radionuclide inventory and levels in the spent-fuel sludge, as well as technical bases for dose estimates and variations in the number of filters required (Basis 10); and (4) inadequate technical specification bases for the spent fuel pool level and spent fuel pool temperature (Basis 12).
(ii)
SMUD and NRC Staff nositions.
SMUD and the Staff challenge these bases on the grounds that ECO has failed to provide a credible connection between i
its safety-related claims and the adequacy of the funding plan and, accordingly, that these bases are untimely i
challenges to the DP, without an adequate showing of good cause for lateness.
The Staff portrays this type of allegation as a "back-door" approach to litigating the adequacy of the DP (or, indeed, the previously granted possession-only license)47 SMUD also asserts that ECO has provided no support for its assertions that SMUD has not provided assurance that it-is in compliance with NRC guidance, noting that ECO has mischaracterized the documents that it cites and has not referenced other pertinent portions of the licensing documentation.
SMUD states with regard to Basis _8 that, contrary to ECO's claim, there are no unidentified 47 Staff Funding Response, at 20.
. contaminated areas on-site.48 The Staff adds with respect j
to Basis 9 that ECO has failed to identify the necessary scenario to discuss beyond-design-basis accidents and that discussions of terrorism are precluded by 10 C.F.R.
S 50.13.49 SMUD additionally notes with respect to Basis 10 that the cost implications for filters are inconsequential 1
inasmuch as they cost only $55 each (1988 dollars) and only i
about 18 are required, and that they accordingly can have no material effect on the adequacy of the funding plan.50 With regard to Basis 12, SMUD refers to its cost estimates that in fact include spent fuel management costs and also i
claims that such costs are beyond the scope of the j
proceeding.51 (iii)
Board analysis.
None of these bases appear to raise significant issues with regard to funding.
- Indeed, t
there is little if any connection to funding.
(The S55 filters have some relationship to funding, but at best it is i
trivial.)
Instead, each of the bases appears to be a "back-door approach" (to use the Staff terminology) to litigating an aspect of the DP.
ECO essentially concedes this to be i
48SMUD Funding Response, at 37; Tr. 273.
49 Staff Funding Response, at 18.
i 50SMUD Funding Response, at 42.
51B1., at 44.
l 1
l' so.52 As such, they are untimely.
ECO has made no I
attempt to justify its untimeliness in this respect although, at the prehearing conference, it noted that some of the documents cited by it were issued subsequent to the DP or, indeed, the issuance of CLI-93-03.53 More important, they do not appear to raise significant safety issues.
In many cases, they make allegations concerning information that purportedly is lacking, in the face of information that is in fact present in the DP.
1 i
Although we are not here insisting on direct citations to the decommissioning or funding plans as a predicate to admissibility, when an allegation of lacking information is-made, we assume that no such information is extant.
In the i
present situation, that conclusion is erroneous.
We are thus giving weight here to the lack of appropriate citations.
For these reasons, we are denying all of these I
bases.
4.
Conclusion on Fundina Contention.
For the reasons outlined herein, we are accepting for litigation ECO's funding contention, based on reasons I
l outlined in Bases 1, 5,
11 and 13 (considered collectively),
l and Bases 2 and 14 (considered collectively).
We will l
permit the remedy sought by Basis 4 to be sought in 1
52Tr. 285., 317-21.
53Tr. 273-77, 283-84, 285-86.
P,
I conjunction with these other bases but in other respects are denying Basis 4.
We are also denying Bases 3, 6,
8, 9,
10
?
and 12.
(Basis 7 was withdrawn.)
C.
LOOP Contention.
1.
ECO's ContentioD.
ECO's Proposed Amended LOOP contention reads as follows:
SMUD's considerations of the LOOP issues in both its Supplement to Application's Environmental Report-Post Operating License Stage
(" Supplement")
at Paragraph 5.3 and its proposed Decommissioning Plan ("PDP") at Paragraph 3.4 (transmitted by AGM/NUC 91-081 (May 20, 1991)) (a) fail to comply with 10 CFR SS 50.63 + 51.45 (1992) and the Commission's Station Blackout Rule (53 Fed. Reg. 23203 (June 21, 1988)), (b) that the calculations expressed in the Supplement and the PDP are in part unsupported by and in part contradicted by the calculations furnished ECO by SMUD in accordance with the Commission's Order raising questions [] not only of inadequate NEPA disclosure but also questions of SMUD's integrity
^
i and fitness for licensee responsibility pursuant to the Atomic Energy Act of 1954 as amended
("AEA"), and (c) finally, that SMUD's inadequate consideration of LOOP and inadequate preparation to cope with LOOP presents an unacceptable risk to the radiological health and safety of the public.54 2.
SMUD and Staff Positions.
SMUD's response claims that ECO's contention raises t
untimely issues unrelated to the discussion of LOOP frequency and that ECO's contention does not satisfy the
[
Commission's pleading requirements.
SMUD asserts that ECO's contentions are vague and lack legal basis.
Particularly, SMUD says that ECO provides no basis to apply the Station 54 LOOP Contention, at 1-2.
1 >
Blackout Rule to Rancho Seco, which has been permanently shut down since June 7, 1989.
In its response, the Staff claims that ECO has failed to file a proper contention for litigation on the licensee's calculations of the loss of offsite power.
It contends that the Commission in CLI-93-3 did not provide for a general t
opportunity to litigate matters contained in the DP, but only matters regarding the LOOP probability calculation.
The Staff argues that the intervenor may not " bootstrap" itself into now being able to file contentions that deal with matters that are discussed in the DP.55 3.
Commission Guidance.
The Commission has provided us significant guidance in dealing with this proposed contention.
In CLI-93-3, suora, l
it stated:
ECO's contention that there is no reference to a particularized study to allow independent verification of the conclusion that the probability.of a LOOP is less than once in 20 years is admitted.
SMUD is ordered to provide ECO with the basis for its conclusion regarding the frequency'of a LOOP.
ECO will then be permitted 14 days from service of SMUD's submittal in which to file an amended contention, if it chooses, taking into consideration the information provided by the Licensee in accordance with this order.[ss) 55Staff LOOP Response, at 7.
5637 NRC at 146.
When filing this amended contention, ECO need not satisfy the criteria for a late-filed contention. [57)
ECO may file an amended contention related to the LOOP issue as affected by SMUD's submittal with the Licensing Board.[ss)
Thereafter, in ruling on SMUD's motion for reconsideration of CLI-93-03, the Commission provided this guidance:
7 Although we have already admitted the original contention as we decided in CLI-93-3, we leave for the l
Licensing Board to determine if the further amendment to the contention is 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 that were not dependent on the analysis of the probability of a LOOP.
To the extent that ECO raises issues that could have been raised before because they are not dependent on the new information provided regarding the probability of a LOOP, ECO must meet the criteria for late-filed contentions.{59)
In a subsequent clarification, the Commission, referring to the SMUD-provided detailed analysis regarding the calculation of the probability of a LOOP, also stated:
Because this was the first time that ECO was provided access to this information ECO was permitted to amend its contention based on this analysis.
This particular amendment, based on the newly provided analysis, is not subject to the late-filed criteria contained in 10 C.F.R. 2.714(a).
However, any such amendment must meet the criteria for admissibility in 10 C.F.R. 2.714(b) and (d).
t 57JJi. at 146, n.28.
5812. at 154.
59CLI-93-12, supra, 37 NP.C at 360, n.8.
f
, l To the extent that ECO's amended contention may raise new issues that were not dependent on the newly these provided analysis of the probability of a LOOP, new issues are subject to the late-filed criteria in-10 C.F.R. 2.714 (a) (i)-(v). [60)
ECO filed its amended contention in a timely manner, subsequent to SMUD's filing of its Commission ordered information on LOOP probability calculations.61 4.
Analysis.
ECO provides an eleven point explanation-We deal of its basis for the proposed amended contention.
with each of these bases consecutively.
P a.
LOOP Contention. Basis 1.
(i)
ECO's Claim.
ECO conter.ds that SMUD in the DP and s
ER claims a coping period of "less than 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br />" and a I
minimum need for restolation for power at variously 6 days e
or 17.7 days.
ECO contends that SMUD provides no docamentation or calculations to support these conclusory assertions made at pages 3-34 and 3-35 of the DP.
ECO states that the calculation supplied by SMUD in SMUD Calculation No. Z-EDS-E0817 requires a coping period of 62 not more than four hours.63 60CLI-93-19, dated September 10, 1993, slip op. at 2.
SMUD provided ECO with information on SMUD's 61 calculation of LOOP probability by letter dated March 18, 1993 from David R. Lewis, Esq. to James P. McGranery, Jr.,
l Esq. (hereinafter, Lewis letter).
62 Lewis letter at Attachment 1, Enclosure E.
63 LOOP Contenteen, at 4.
P f
k
I t
E I
(ii)
SMUD Position.
SMUD responds that ECO's facts l
are inaccurate and unsupported and the Station Blackout Rule to which the calculation referred in ECO's contention does not apply to decommissioned reactors and, hence, to SMUD.
SMUD challenges ECO's contention for a lack of explanation why an operating-reactor coping period should be applicable to a reactor snut down for the past four years.
In addition, SMUD challenges ECO's facts concerning a coping i
period of "less than eight hours" by pointing out that page 3-34 of the DP referenced by ECO actually references the time within which SMUD could restore power from either the District or PG&E.
SMUD also challenges ECO's facts concerning the calculati' s and documentation to support the assertions concerning the need to restore power.
SMUD asserts that all the information needed to calculate the time needed to boil SMUD the Spent Fuel Pool water are contained in the DP.
asserts that ECO makes no showing that calculations required for the Station Blackout Rule for an operating reactor are necessary for Rancho Seco.64 (iii)
Staff Position.
The Staff claims this basis is beyond that authorized by CLI-93-3 in that it discusses coping with a LOOP rather than the probability of a LOOP.
64SMUD LOOP Response, at 8-12.
)
t The Staff argues that ECO has not described any-dispute with SMUD's LOOP calculations.65 (iv)
Board Analysis.
CLI-93-3 permits ECO to submit contentions on information contained in SMUD's response to its order for SMUD to supply information on the calculation of the freauency or probability of a LOOP.
ECO's Basis 1 raises issues of cocine with a LOOP,66 i.e.,
restoration of power and taking corrective action to assure the safety of the plant.
These actions were discussed in the DP at pages 3-34 and 3-35 and in SMUD's Environmental Report (ER) at pages 5-6, 7, information available to ECO when it filed its original contentions.
ECO argues that the Commission in CLI-93-3 would 67 allow contentions to be filed without fulfilling the late-filed criteria of 10 C.F.R. S 2.714(a) since documents t
recently supplied by SMUD were not available for review by i
ECO.68 ECO also argues that safety issues of a LOOP are 65Staff LOOP Response, at 13.
t 66 LOOP Contention, at 4.
67Tr. 400-401, 427-32.
68At the prehearing conference, ECO introduced as a reference DAGM/NUC 93-079 dated April 1, 1993, a document supplied on the record by letter from Thomas A. Baxter to Samuel J.
Chilk dated April 6, 1993 (Tr. 362).
This correspondence, concerning Permanently Defueled Technical Specifications, references earlier correspondence on the same subject, DAGM/NUC 92-233 dated September 23, 1992, provided ECO by letter from David R. Lewis to James P.
McGranery dated March 9, 1993.
ECO did not establish the (continued...)
f
l'
. dependent both on probability and its consequences and since this is the first time it has seen this information, it is fair game for a ripe contention.
The Board disagrees with ECO's reading of the Commission's guidance.
The Commission made it clear that issues growing out of filings made as a result of CLI-93-3 must meet late-filed criteria if the ist ae is one not related to information associated with the calculation of LOOP probabilities.
Issues related to coping with the consequences of a LOOP are separate from the issue of calculating the probability (or frequency) that a LOOP will-The issue of coping with the consequences of a LOOP occur.
is addressed in the DP and ER.
By reviewing those documents, ECO had sufficient notice to file a timely contention concerning the simultaneous occurrence of a LOOP and loss of coolant from the spent fuel pool.
The Board considers that to raise issues of coping,.ECO must justify these issues in accordance with 10 C.F.R. S 2.714 (a) (i)-(v).
The Board considers this basis, and all the following bases j
associated with coping with the consequences of a LOOP, to require justification for being late-filed.
l Regardless of the timeliness of this basis, SMUD j
complied with the Commission order to supply its calculation i
I 68 (... continued) relevance of these documents to the LOOP issue in its pleadings or at the prehearing conference.
j i
t m,
- 44 5
of the frequency of a LOOP.
It did so by providing its calculations for complying with the Station Blackout Rule, 10 C.F.R. S 50.63, applicable to Rancho Seco as an operating i
plant. 69 ECO takes information supplied as a result of a Commission Order to divulge how SMUD determined the i
frecuency of a LOOP and in this basis challenges SMUD's ability to cope with the consequences of a LOOP during decommissioning.
ECO does not discuss (1) the reason why the SMUD's calculations for coping with a station blackout at Rancho Seco as an operating plant should apply to Rancho Seco during decommissioning; (2) why the calculations of LOOP frequency do not support the DP and ER; or (3) why the a
statements in the DP and ER concerning the ability of SMUD to cope with a station blackout during decommissioning are not adequate.
The fact that the actual calculation for coping with a LOOP during decommissioning is not spelled out (even though relevant and in fact not provided) is not material since information necessary to calculate the time available before fuel is uncovered is available in the DP.
Information i
i concerning the need for corrective action in the event of boil off of spent fuel pool water is available in Chapter 3 i
of the DP and should have been challenged in ECO's original contentions.
ECO has not met the pleading requirements of 69 Lewis letter, at Attachment 1, Enclosure E.
+
~
r s
k F
~
t i
t 10 C.F.R.
S 2.714 (a), (b) and (d) with this basis since it has not supplied the facts necessary to establish a genuine dispute and to justify being late-filed.
Accordingly, we reject this basis as support for ECO's amended contention.
b.
LOOP Contention. Basis 2.
(i)
ECO's Claim.
In this basis, ECO claims that SMUD L
should not be allowed to use a 0.95 reliability factor for its emergency diesel generators in its coping calculations since maintenance on those generators is being reduced, if not eliminated.
ECO references an April 1992 document l
served on the parties in July 1992.70 (ii)
SMUD Position.
SMUD states that the 0.95 reliability factor was used in the calculation for the Station Blackout Rule for Rant.lo Seco as an operating reactor.
SMUD states that the analysis of its ability to cope with a station blackout during decommissioning does not rely on the availability of the emergency diesel generators.
SMUD claims that this basis does not identify a deficiency in the analysis of its ability to cope with a station blackout during decommissioning.71 j
l 70 SMUD letter DAGM/ NUC 92-086, Response to the Request for Additional Information in Support of the Rancho Seco Decommissioning and Associated Environmental Report, dated April'15, 1992,-forwarded to the_ parties by letter from Thomas A.
Baxter dated July 15, 1992 (SMUD Additional Information).
k 71SMUD LOOP Response, at 12, 13.
I
l (iii)
Staff Position.
The Staff claims this basis does not conform to the pleading requirements of 10 C.F.R. 5 2.714 (b) (2) and is not authorized by CLI-93-3.
It adds that reliability of diesel generators does not affect the frequency of a LOOP and that emergency diesel generators are not required by Rancho Seco's possession'only license.72 (iv)
Board Analysis.
This basis, like the previous one, raises a coping concern.
ECO references a response from SMUD to a question about radiation exposure from the potential use of the onsite diesel generators as peaking units.
SMUD's response states there will be no radiation exposure as a result of diesel generator use as peaking units because of the cost of maintaining the units and constraints imposed by air quality standards.73 SMUD does not plan to use, and the Staff does not require ~SMUD to use, diesel cenerators during decommissioning.
ECO does not describe how the use of diesel generators (or a diesel generator reliability factor of 0.95 used in a calculation for coping from a Station Blackout during plant operation) will materially affect SMUD's ability to cope with a Station Blackout during decommissioning a plant which has been shut down for over four years.
Table 3-21 of the 72Staff LOOP Response, at 14.
73Smud Additional Information, at DP-58.
1
1 i DP provides time periods for the spent fuel pool at the shut-down Rancho Seco facility to reach 212 F and to vaporize 6.75 feet of spent fuel pool water.
These times are in excess of 6 days and 17 days respectively.
- ECO has a responsibility to meet the requirements of 10 C.F.R. S 2.714 i
(b) (2) to show in sufficient detail that a genuine dispute exists on a material issue of law or fact.
With this basis ECO has done neither.
In addition, as with basis 1,
ECO has the responsibility to meet the late-filed requirements of f
10 C.F.R. 5 2.714(a) for coping concerns.
It has not even attempted to do so.
Accordingly, the Bocrd does not accept this basis as support for ECO's amended contention.
c.
LOOP Contention. Basis 3.
]
(i)
ECO Claim.
In this basis, ECO references a September 23, 1992 document concerning Permanently Defueled f
74 Technical Specification Revisions ECO claims that if spent fuel cooling is lost due to the unavailability of I
electricity, a spent fuel /radwaste area exhaust fan, which SMUD takes credit f or operation, will not be running.75 (ii)
SMUD Position.
SMUD asserts that the analysis provided in the September 23, 1993 letter is irrelevant to 74 See letter from J.
Shelter to NRC, re: Revision to Permanently Defueled Technical Sp2cification Bases (DAGM/NUC 92-233, dated September 23, 1992); provided by letter from David R.
Lewis to James P. McGranery, Jr., dated March 9, 1993 (PDTS Revised Bases).
75ECO Proposed Contention at 5.
.L the LOOP.
The letter justifies eliminating a prior commitment to put a train of the Decay Heat Removal System f
I into service if the primary spent fuel cooling. system is I'
The LOOP issue does not affect the choice between placing a train of the Decay Heat Removal System into service or running a spent fuel /radwaste exhaust fan in the event the primary spent fuel cooling system is inoperable.
SMUD reiterates taat its Decommissioning LOOP analysis assumed no evaporative or ambient heat loss prior to boiling.76 (iii)
Staff Position.
The Staff's position is that this basis does not address the Licensee's calculations and l
methodologies for the determination of the frequency of a LOOP and, therefore, must be rejected.77 (iv)
Board Analysis.
This basis raises another coping The board does not agree with ECO's reading of concern.
SMUD's September 23, 1992 letter to the Staff concerning its analysis of the need for the use of the Decay Heat Removal System as a backup to the spent fuel cooling system.
The letter clearly addresses the acceptability of the use of the spent fuel /radwaste exhaust fan as a backup to the inoperability of the spent fuel cooling system.
The analysis does not address LOOP and ECO does.not challenge DP, at 3-35; SMUD Loop Response, at 13-15.
76 77Staff LOOP Response, at 14.
.i r
the analysis on its merits.
Although SMUD's analysis addresses spent fuel cooling, the analysis is not relevant to the LOOP inasmuch as SMUD has shown it has not included l
evaporative losses as part of its calculation of coping with a LOOP.78 As with Basis 1, ECO has the responsibility to meet the late-filed requirements of 10 C.F.R. S 2.714(a) for coping concerns.
It has not done so.
For each of these the Board does not accept this basis as support for
- reasons,
[
ECO's proposed amended contention.
d.
LOOP Contention. Basis 4.
(i)
ECO Basis.
In this basis, ECO claims that SMUD impermissibly ignores the impact of a LOOP on plant security systems, and ignores the issue of reliability of battery
+
powered backup for these systems during the period of coping with a LOOP.79 i
(ii)
SMUD Position.
SMUD_ asserts that ECO provides no basis for its assertion of possible unreliability of battery backup.
In addition, SMUD states this basis is a challenge to the Security Plan approved for decommissioning on July 25, 1991 by License Amendment No. 116,80 (iii)
Staff Position.
Staff argues that this is an
[
impermissible expansion of the issue authorized by CLI-93-3.
l 78 DP, at 3-35.
7ELOOP Contention, at 5.
80SMUD LOOP Response, at 15.
j l
l
. It claims that this basis on security systems has nothing to
)
do with the probability of a LOOP; does not conform to j
t 10 C.F.R. 5 2.714 (b) (2) ; and is not permitted to be raised l
by CLI-93-3.81 (iv)
Board Analysis.
This basis raises a coping f
concern.
As with Basis 1, the Board considers that coping i
concerns must meet the late-filed requirements of 10 C.F.R.
ECO does not meet those requirements with this S 2.714.
basis.
Challenges now to the security plan are untimely.
i At the prehearing conference, ECO referenced SMUD letter 1
t DAGM/NUC 93-079, dated April 1, 1993, as not including r
information concerning security systems.82 This letter e
t concerns changes to Post Defueling Technical Specifications 1
and is not relevant to the LOOP issue or to a Security 6
issue.83 In addition ECO provides no facts or expert l
I opinion as a technical basis for challenging the reliability of the battery-powered backup of the plant security systems.
The Board declines to accept this basis as support for ECO's proposed amended contention.
t
+
alStaff LOOP Response, at 15.
Tr. 407.
p 82 See n.
67.
j 83 i
l i
LOOP Contention. Basis 5.
e.
(i)
ECO Basis.
In this basis ECO claims that SMUD impermissibly ignores the occasion of LOOP from 3
sabotage.84 (ii)
SMUD Position.
SMUD claims that ECO has pointed In to no requirement to evaluate LOOP caused by sabotage.
addition, ECO has not shown that all offsite transmission lines would be simultaneously disabled with a LOOP.
ECO has provided no facts, opinion or other support for its s
allegation or why its allegation is material.
SMUD claims that its analysis in the ER and DP demonstrates that it would have weeks to cope with a LOOP.85 (iii)
Staff Position.
The Staff asserts that 10 C.F.R. S 50.13 does not require design features to protect against sabotage.
In addition, it is not an issue permitted to be raised by CLI-93-3.86 (iv)
Analysis.
This basis concerns the frequency of a LOOP and hence was timely filed.
However, design features to protect against sabotage are not required by NRC rules to be submitted.
Further, ECO has not shown how SMUD's alleged failure to address sabotage is material to its LOOP l
contention.
Given the hypothetical situation that sabotage i
84 LOOP Contention, at 5.
85SMUD LOOP Response, at 15.
B6 Staff LOOP Response, at 15.
e r
i l
1
~
I 2
t '
t 4
could cause a LOOP, ECO has not demonstrated that SMUD is not capable of coping with a LOOP.
As we discussed in our analysis of bases 1 and 2, SMUD has between 6 and 17 days to f
i assure that the spent fuel pool does not become uncovered.
t Although ECO has challenged this coping period, for reasons i
given in our other analyses, we have not accepted that r
challenge.
t We reject this basis both because of its inconsistency t
with 10 C.F.R. S 50.13 and because ECO has provided no facts or expert opinion to support that it is material nor described how granting this basis would provide ECO relief from its concerns.
l f.
LOOP Contention. Basis 6.
(i)
ECO's Claim.
ECO claims that in both the NEPA
[ER] Supplement and the DP, SMUD claims that the probability of LOOP at Rancho Seco is "less than once 20 years (sic)".
However, if a LOOP can be caused by a 75 mile per hour wind, the SMUD calculations indicate that the frequency of such winds is greater than once in 20 years, namely, every 18.2 years.
ECO references the DP, ER and recently supplied j
calculation of the frequency of a LOOP.87 (ii)
SMUD Position.
SMUD's position in response to this basis is that ECO fails to show that every occurrence t
of high winds will invariably cause a LOOP at Rancho Seco, 4
87 Lewis letter, at Attachment 1, Enclosure E; LOOP Contention, at 5, 6.-
i i
1
t I
'- ?
and that ECO fails to discuss why SMUD's calculations or the SMUD l
methodology in Regulatory Guide 1.155 are not correct.
points out that, using the calculation accepted by the Staff, the probability of severe winds with velocities between 75 and 124 miles per hour causing a LOOP is about once in 1500 years.88 1
(iii)
Staff Position.
The Staff argues that ECO has provided no basis for its conclusion that LOOP will occur more frequently than once in 20 years because there are l
75-mile per hour winds every 18.5 years.89 (iv)
Board Analysis.
This is a timely basis.
However, our reading of the record indicates that SMUD's claim that the probability of a LOOP is loss than once in 20 years is clearly unsupported.
Both the DP, at 3-34, and 1
i the ER, at 5 5.3.1.2, indicate that the probability of a 4
LOOP evaluated in accordance with the guidelines of i
The Regulatory Guide 1.155 is less than once in 20 years.
calculations furnished EC0 indicate that the approximate i
90 i
return period for a 75 mile per hour wind is 18.2. years.
Using this information and the methodologies of Regulatory t
t 88SMUD LOOP Response, at 16-17.
89 Staff LOOP Response, at 15-16.
1 i
t 90 Lewis letter, at Attachment 1, Enclosure E.
i i
- 54 i
t Guide 1.155, SMUD calculated a probability of a LOOP based-
[
on severe weather at 1.2 E-3.91 i
ECO does not provide data, expert opinion or other l
sources to counter the information extant in the record.
It r
provides no information challenging the. calculation that t
winds greater than 75 miles per hour will occur at a i
frequency of once every 18.2 years.
Nor does ECO provide l
facts, opinion or other sources which would lead us to believe that each time a wind blew greater than 75 miles per hour, a LOOP would occur at Rancho Seco.
Thus, ECO has not shown that a genuine dispute exists with the Licensee on a j
material issue of law or fact, as required by 10 C.F.R.
i S 2.714(b).
The Board concludes that this basis does not support ECO's proposed contention.
L g.
LOOP Contention. Basis 7.
l (i)
ECO's Claim.
ECO claims that SMUD's conclusory i
analyses are also technically inadequate since they fail to consider loss of coolant during LOOP due to mechanisms other j
than evaporation, i.e., accidental or intentional (insider and outsider threat) draining of the spent fuel pool.92 l
(ii)
SMUD Position.
SMUD asserts that ECO has not t
l pointed to a requirement that it analyze the simultaneous loss of coolant and the occurrence of a LOOP.
SMUD claims l
91 Lewis letter, at Attachment 1, Enclosure E, Appendix A, page 6 of 24.
j l
92 LOOP Contention, at 6.
l 1
l 1
B that ECO has not shown how the spent fuel pool can be accidentally or deliberately drained since the lowest penetration to the pool is at the twenty-three foot level, I
approximately nine feet above the top of the fuel assemblies.
In addition ECO does not discuss the expected t
consequences of such an action.93 F
(iii)
Staff Position.
The Staff position is that this basis is not permitted by CLI-93-3, and 10 C.F.R. S 50.13 provides that design features to protect against sabotage are not required.
In addition, the pool design makes the accidental drainage impossible.94 (iv)
Board Analysis.
This basis raises another coping ECO clarified this basis at the Prehearing concern.
l Conference, offering that the simultaneous loss of coolant I
and a LOOP could be occasioned by an earthquake 95, t
However, ECO did not provide facts, opinion or other sources to convince this Board that the Commission should look at such a highly speculative occurrence in view of the Commission's long-standing position that such occurrences need not be evaluated.96 i
93SMUD LOOP Response, at 18-19.
94 Staff LOOP Response, at 16.
95Tr. 426.
Egg Pacific Gas and Electric Comoany (Diablo Canyon 96 Nuclear Power Plant, Units 1 and 2), ALAB-880, 26 NRC 449, at 458-459 (1987), rev on other arounds sub nom._, Sierra (continued...)
5
b l
l In addition, as with Basis 1, the Board considers i
1 issues associated with coping to require compliance with the late-filed criteria of 10 C.F.R. 2.714(a).
ECO has not i
addressed the relevant factors.
Finally ECO has not discussed why this basis is material to the decommissioning of Rancho Seco.
SMUD l
-i asserts that fuel which has not been in an operating reactor for over three years can be air cooled.97 Since Rancho l
=
Seco fuel has cooled since 1989, ECO fails to explain why
[
this concern is material.
The Board considers this basis I
untimely, inconsistent with regulatory requirements, and not
\\.
l material.
We therefore do not admit it in support of ECO's i
proposed amended contention.
h.
LOOP Contention. Basis 8.
(i)
ECO's Clain.
ECO maintains that SMUD fails to i
address adverse thermal and radioactive conditions ~and the e
f habitability requirements for all areas where operator
}
96(... continued)
Club v. NRC, 862 F.2d 222 (9th Cir. 1988)(" Accidents that contemplate ' sequences of postulated successive failure and t
engineered safety features' are variously termed 'beyond design-basis', ' Class 9 *, or
- severe' accidents."
"The Commission considers such accidents 'to be so low in l
probability as not to require specific additional provisions l
in the design of a reactor facility.'")
97SMUD LOOP Response, at 19 n.11.
SMUD points out that NUREG-1353, Regulatory Analysis for the Resolution of Generic Issue 82, "Beyond Design Basis Accidents in Spent 7
Fuel Pools," demonstrates that spent fuel after three years
)
of storage can be air cooled with no risk of a Zircoloy cladding fire.
i I
I k
l I
p access may be required to take compensating measures in the loss of water from the spent fuel pool.98 event of (ii)
SMUD Position.
The Licensee asserts this basis
.t is inaccurate.
SMUD claims that both the DP and ER analyze-l the amount of time'necessary to take corrective action to maintain the dose rate at the surface of the spent fuel pool l
less than 2.5 mr/h.
ECO does not allege any facts, opinions or other sources that would indicate the need for further analysis.99 i
(iii)
Staff Position.
The Staff position is that ECO gives no basis for concluding tr.st habitability would be affected by a LOOP to prevent protactive measures from being taken to resuppl: vater to the spent ic9l pool before exposure of the fuel.100 7
(iv)
Analysis.
This basis raises-a coping concern.
At the prehearing conference, ECO clarified its challenge to SMUD's capability to cope with an uncovered spent fuel pool.
ECO claims that SMUD's plan to use a fire hose and the diesel powered fire pump to add water is an unexamined issue.101 In the DP at 3-34, 3-35 and 3-70, SMUD describes the time necessary to take corrective action and 98 LOOP Contention, at 6.
99SMUD LOOP Response, at 20.
200 Staff LOOP Response, at 16-17.
101Tr. 442.
s.+
l
...a6 l
I claims that-an alternate power supply can be made.available in the time necessary to take action to restore spent fuel I
pool cooling.
In addition, the DP at 2-64-indicates that the fire protection system will-be functional during i
decommissioning.
ECO has had sufficient notice at the l
decommissioning plan stage to file a timely contention on f
i the issue of habitability.
As we hold in our analysis of Basis 1 above, issues of coping must meet the late-filed i
criteria of 10 C.F.R. S 2.714 and ECO fails to do this.
In addition, ECO has not presented any facts, opinions or other sources to describe why the corrective actions in l
the DP are not adequate.
Further as we discuss in our analysis of Basis 7 above, if the fuel were to be uncovered, according to the SMUD application, it now has cooled
[
adequately.such that it could be air-cooled.
We find this basis does not raise a genuine issue with the licensee and
'I does not support ECO's proposed amended contention.
1.
LOOP Contention, Basis 9.
(i)
ECO's Claim.
ECO claims that SMUD's analysis also l
fails in omitting reference to the significance of hot weather as a serious compounding factor in the event of loss l
t of electricity.102 (ii)
SMUD Position.
SMUD asserts that ECO does not explain the-significance of hot weather or provide support-102 LOOP Contention, at 6.
i I
-i
P
, for its characterization as a serious compounding factor.
SMUD asserts that its calculations of coping periods do not take credit for evaporative cooling and therefore hot weather is not significant.103 (iii)
Staff Position.
Staff considers this basis goes to evaporation from the pool and not the frequency of a LOOP.
Therefore, it is not permitted by CLI-93-3.
ECO makes unsupported conclusions concerning the consequences of a LOOP.104 (iv)
Analysis.
This basis raises a coping concern.
ECO complains that it was given no basis to understand the assumptions in SMUD's evaporation analysis so that it can be independently verified.
Such calculations would then allow ECO to judge the adequacy of the resultant calculated coping period.105 We believe this basis is not material to the proposed.
LOOP contention.
As described in the DP at 3-35, SMUD takes no credit for evaporative heat losses in its calculations.
As pointed out at the prehearing conference, sufficient information exists in the DP for ECO to confirm calculations of loss of coolant from the spent fuel pool.106 Using the 103SMUD LOOP Response, at 20.
104 Staff LOOP Response, at 17.
~'
10STr. 448-49.
106Tr. 457-58.
L
. l information in the DP, at Table 3-21, the Board considers sufficient time exists in the worst case for SMUD to cope with simultaneous loss of offsite power and a period of hot weather.
ECO has presented no claims to refute this t
-information of record.
ECO complains that it was given no methodology for the calculation of loss of coolant from the spent fuel pool.
However, ECO fails to address the fact that all the information needed to address this issue and confirm the i
calculations was supplied with the DP and ER.
If ECO had i
concerns about hot weather and the occurrence of a LOOP, ECO should have raised them with its original contentions, or alternatively, justified the late-filing of its concerns.
The Board finds this basis to be unsupported by facts, not i
material to the proposed amended contention and, in any event, untimely without adequate justification.
j.
LOOP Contention. Basis 10.
(i)
ECO's Claim.
ECO's 10th basis concludes that l
SMUD's presentation on the LOOP issue is totally inadequate i
'I under both the National Environmental Policy Act (NEPA) and the Atomic Energy Act to allow the NRC Staff and the public l
i to assess independently the adequacy of SMUD's provision against LOOP and the consequences of LOOP.
(ii)
Analysis.
At the prehearing conference, ECO agreed with the Board that this basis was nothing more than
. a summary of all the other bases.107 As such, it does not constitute a separate basis for us to consider.
Nor does-it include adequate information to comprise an acceptable basis.
We therefore reject this basis, k.
LOOP Contention. Basis 11.
(i)
ECO's claim.
This last basis claims that SMUD*s assessment of fuel degradation effects is inadequate, among other reasons because it does not address " fuel fighting temperatures" above 212 F and SMUD presents no analysis indicating that the fuel cladding could not significantly exceed 212 F in the event of loss of coolant.20s (ii)
SMUD Position.
SMUD returns to its argument that there are weeks available to take measures to respond to a LOOP before fuel would be uncovered by a loss of coolant.
SMUD claims that it is not required to evaluate the temperatures of uncovered fuel because of the ample time to restore cooling in the event of a LOOP.
SMUD claims that l
ECO does not provide a credible scenario ~ leading to uncovering of fuel, and does not allege that temperatures in excess of 212 F would have any adverse effect on the spent i
fuel.109 107Tr. 465.
108 LOOP Contention, at 7.
109SMUD LOOP Response, at 21-23.
j l
- 62 P
(iii)
Staff Position.
The Staff considers this basis to be not understandable, in that it does not define " fuel fighting temperature".
Beyond that, the Staff asserts that ECO fails to raise a litigable issue with this basis since it does not identify any fact or expert opinion to support j
its claim that such temperatures are relevant to the l
frequency of a LOOP or that SMUD would not be able to cope with the consequences.110 (iv)
Board Analysis.
This basis is another that raises a coping issue.
At the prehearing conference, ECO clarified its concern that boiling water and temperatures above 212 F may have a detrimental effect on the spent fuel.lll ECO proffered no facts or expert opinion to bolster its concern or to explain why fuel that has been subject to operating temperatures in the past may suffer adverse effects as a result of uncovering of the fuel.
As discussed in our analysis of Basis 7 above, it has been i
-i shown that fuel aged longer than 3 years could be air cooled.
In addition, SMUD has shown that sufficient time exists to provide corrective action to prevent fuel from becoming uncovered.
The DP at 3-35 discusses the fact that no degradation of the fuel is expected since fuel is designed to operate at temperatures significantly greater 110 Staff LOOP Response, at 18.
IllTr. 466-68.
I 1
4
- 63 than 212 F.
This issue could have been raised earlier.
As with our position on other bases, issues of coping should be justified in accordance with the late-filed criteria of 10 C.F.R., 5 2.714(a) and ECO has failed to do that.
The Board considers that this basis is not material and untimely without adequate justification.
We decline to accept it as support for ECO's proposed amended contention.
5.
Conclusion on LOOP Contention.
Based on our t
analysis of each of ECO's bases, individually and collectively, we conclude that ECO's Proposed Amended LOOP Contention does not raise an issue of material fact or law.
ECO's bases frequently fail to recognize information extant in the DP or ER, and therefore raise issues without sufficient justification for late-filing.
The proposed contention goes beyond the guidance of the Commission in CLI-93-3 without appropriately pleading facts, expert opinion or providing other support for its allegations that there are material issues of health and safety, or violations of NEPA.
For all the reasons discussed above, we i
deny admission of ECO's Proposed Amended LOOP Contention.
D.
ECO's Admitted LOOP Contention and SMUD's Summary Disnosition Motion 1.
ECO's Contention.
ECO's contention that there is no reference to a particularized study to allow independent verification of the conclusion that the probability of a 1
i j
- 64 LOOP is less than once in 20 years was admitted by the Commission in CLI-93-3, supra, 37 NRC at 146.
See also The Commission ordered SMUD to provide CLI-93-19, suprae ECO with the basis for SMUD's determination in its ER that the probability of a LOOP at Rancho Seco is less than one in l
i 20 years and permitted ECO to file an amended contention i
related to the LOOP issue as affected by the SMUD submittal.
As ordered, SMUD provided ECO with the appropriate l
information concerning the probability of a LOOP.
As discussed above, ECO timely filed a proposed amended contention.
SMUD now seeks summary disposition pursuant to 10 C.F.R. S 2.749 of this admitted contention.
2.
Relevant standards.
The Commission has'recently reiterated the legal standards to be applied with respect to motions for summary disposition pursuant to 10 C.F.R.
S 2.749.
After describing analogies of the rule to motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, the Commission observed:
[10 C.F.R. S 2.749] specifies that summary disposition may be granted only if the filings in the proceeding, including statements of the parties and affidavits, demonstrate both that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.
The party seeking summary judgment bears the burden of showing the absence of a genuine issue as to any material fact.
In addition, the Board must view the record in the light most favorable to the party opposing such a motion.
Thus, if the proponent of the motion fails to make the requisite showing, the Board must deny the motion--even if the opposing party chooses not to respond or its response is inadequate.
However, if the novant makes a proper showing for summary disposition, and if the party opposing the motion does not show that a genuine issue of material fact exists, the Board may summarily dispose of all arguments on the basis of pleadings.
To preclude summary disposition, when the proponent has met its burden, the party opposing the motion may not rest upon " mere allegations or denials," but must set forth specific facts showing that there is a genuine issue.
Bare assertions or general denials are not sufficient.
Although the opposing party does not have to show that it would prevail on the issues, it'must at least demonstrate that there is a genuine factual issue to be tried.
The opposing party must controvert any material fact properly set out in the statement of material facts which accompanies a summary disposition motion or that fact will be deemed admitted.
Moreover, when the movant has satisfied its initial burden and has supported its motion by affidavit, the opposing party must either proffer rebutting evidence or submit an affidavit why it is impractical to do so.
If the presiding officer determines from affidavits-filed by the opposing party that'the opposing party cannot present by affidavit the facts essential to justify its opposition, the presiding officer.may order a continuance to permit such affidavits to be obtained, or take any other appropriate action.
Adyanced Medical Systems. Inc., CLI-93-22, 38 NRC (September 30, 1993), slip op. at 4-7 (citations omitted),
reconsideration denied, CLI-93-24 (November 24, 1993).
3.
SMUD*s Motion.
SMUD's motion for summary disposition, at 5, argues that SMUD fully complied with_the Commission's Order through its detailed response of 112 March 18, 1993 and now ECO's complaint of the absence-of such basis is' moot.
SMUD argues that there is no longer any dispute of material fact regarding the sources SMUD f
112 Lewis letter, n.
60, suora.
+
1
I relied on to calculate the LOOP frequency and it is now t
entitled to a decision on this matter.
113 4.
ECO's Position.
ECO responds that even though l
SMUD has provided some of the bases for its original conclusion in the DP and ER regarding the frequency of a LOOP, its right to explore the context of the documents through discovery and a hearing should not be foreclosed.
ECO also argues that this contention should not be i
separately considered from its amended contention.
ECO argues in its amended contention (Basis 6, at 5) that a LOOP can be caused by a 75 mile per hour wind and that such winds occur once every 18.2 years.
Therefore, ECO argues, a LOOP can occur at a frequency greater than once in each 20 years.
T 5.
Staff Position.
The Staff supports the SMUD's i
motion and points out that the Commission, in both CLI-93-3, 37 NRC at 146, and in a clarification Memorandum and Order, CLI-93-19, dated September 10, 1993, at 2 (slip op.),
emphasizes that this contention is limited to the particularized study of the LOOP frequency.
6.
Board Analysis.
The Board agrees with SMUD's and the Staff's position with regard.to this contention.
SMUD has submitted documents that explain the bases for its conclusion in the DP and ER that the frequency of a LOOP is
[
]
k I
ECO's Answer in Opposition to SMUD's Motion'for 113 Summary Disposition of ECO's Original LOOP Contention, dated September 27, 1993, at 2, 3.
l l
i i i
less than one each 20 years.
Specifically, in the Lewis letter at Attachment 1, pp.
4, 5, SMUD's calculation of the expectation of a LOOP caused by severe weather is in the i
range of 1 x 10-3 to 3.3 x 10~3 ECO does not challenge these facts in its answer.
In our analysis above of ECO's proposed amended contention, we found no basis for a genuine or material dispute.
Under the requirements of 10 C.F.R. 5 2.749, the Licensing Board shall render a accision in favor of the motion being sought if there is no genuine issue as to material fact.
We find there is no genuine issue of material fact in this contention and are accordingly granting SMUD's motion.
E.
Environmental (EA) and Safety (SER) Contentionq In its EA, the staff concluded that the environmental impacts of the proposed decommissioning are either bounded 114 or the by the conditions evaluated in NUREG-0586 FES or are in compliance with 10 C.F.R. Part 50, 115 Appendix I, setting forth annual design objectives for offsite releases, or 10 C.F.R. Part 20.
Thus the Staff concluded that there are no significant environmental impacts associated with the proposed decommissioning and the 114 U.S. Nuclear Regulatory Commission, " Final Generic Environmental Impact Statement on decommissioning of nuclear facilities," NUREG-0586, August 1988.
115 " Final Environmental Statement related to the Operation of Rancho Seco Nuclear Generating Station Unit 1, Sacramento Municipal. Utility District, Docket No. 50-312."
U.S. Atomic Energy Commission, March 1973.
I i
68 -
proposed action will not have a significant effect on the quality of the human environment.
I Pursuant to 10 C.F.R.
S 51.31, the Staff then' determined not to issue a separate environmental _ impact statement.116 The Notice of Issuance of Environmental Assessment and the Finding of No Significant Impact (FONSI) were issued simultaneously with the EA and the Staff Safety Evaluation (SER)117 on June 16, 1993.
On July 12, 1993, ECO filed contentions related to the Staff EA, FONSI, and SERll8 The contentions and bases as filed are as follows:
1.
ECO Contention 1 (EA Contention).
The Environmental Assessment ("EA") and resulting Finding of No Significant Impact ("FONSI") are inadequate and issued in violation of National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C.
S4321 et. sea. (1988), the-regulations and other guidance issued by the Council on Environmental Quality
("CEQ") including, but not limited to, 40 CFR' Parts 1500-17 and the CEQ 40 most-asked questions (40 Fed.
Reg. 18026 (March 23, 1981)) as well as being issued in violation of the substantive and procedural requirements of the Nuclear Regulatory Commission's
("NRC") own regulations as set out in 10 CFR Part 51 (1993).
t 116EA, at 23.
117 Safety Evaluation by the Nuclear Regulatory l
Commission Related to the Order Approving the I
Decommissioning Plan and Authorizing Decommissioning of Rancho Seco Nuclear Station, Unit 1 Sacramento Municipal J
District Docket No. 50-312.
i 118ECO's Contentions on the Staff Environmental Assessment Findings of No Significant Impact, and Safety Evaluation.
d 0
a.
Basis 1 In preparing its environmental assessment, the NRC staff is required to consult relevant agencies and persons.
See 10 CFR S51.30(a)(2).
The EA at S6.0 indicates only that the " staff consulted with the State of California regarding the environmental impact of the 3
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 where those 1
views may be found, (b) there is no reference to any consultation with any other relevant authorities such as the Council on Environmental Quality or the t
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).
i b.
Basis 2 The Staff document violates 10 CFR S 51.119 (1993) because it does not indicate whether it is a draft or final finding at EA $7.0.
c.
Basis 3 The Staf f document violates 10 CFR S 51.33 (b) (1993) because it does not consider whether circumstances exist requiring the publication of a draft FONSI.
d.
Basis 4 If the FONSI intended to be final, it violates 10 CFR S 51.34(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 i
significant impact.
e.
Basis 5 1
If it is intended to be a draft FONSI, the Staff document violates 10 CFR S 51.119(a) because it does not include a' request for comments, specify where comments should be submitted, or when the comment l
period expires.
f.
Basis 6 I
The EA's consideration (at para. 5.0) of postulated accidents is totally inadequate because it does not.
i t
h r
t
I
> consider non-radiological accidents during the t
decommissioning process.
g.
Basis 7 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 spent fuel storage facility j
on which to base any of the conclusions with respect to normal emissions or accidental emissions.
h.
Basis 8 The EA's non-radiological impact findings are i
inadequate because there is no discussion of the activities anticipated to be performed by SMUD.
There is no discussion, much less qualification, of i
the environmental, including economic and socio-economic impacts of the proposed action and there is no discussion of the changes that have taken place in the 20 years since the issuance of the Staff Reference 18.
i i.
Basis 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.
See EA at para.
3.1.3.
The relevant radius is 50 miles as demonstrated by both the SMUD submissions and.
general NRC practice.
j.
Basis 10 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.
2.
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.
r i [
3.
SMUD and Staff Positions.
)
120 both -tate that none of l19 and Staff Licensee ECO's proffered contentions on the Environmental Assessment, FONSI, or the Safety Evaluation are admissible.
Staff would have the Board deny Bases 6 through 10 and the SER contention because ECO has failed to show that a balancing i
of the five factors applicable to late-filing favors admission.
As to Bases 1 through 5, the Staff, while conceding that ECO's filing was timely (in that it 3
challenges matters that are relevant only to the Staff EA),
j nevertheless would deny the bases and associated contention because of failure to meet the 10 C
_.R.
S 2.714 pleading i
requirements.
The Staff also argues that Bases 1 through 5 are of no consequence and should be rejected inasmuch as not one provides any basis for relief, indicates why an EIS t
t instead of an EA should have been prepared or shows that any matter was not properly considered in the EA.
SMUD submits that all of ECO's EA and SER contentions should be rejected, arguing that ECO fails to make eNcn the-slightest showing that any issue is material and that its resolution would make any difference in the outcome of the proceeding.
SMUD further argues that nowhere in ECO's pleadings is there any contention that any conclusion in the 119SMUD EA Response.
120 Staff EA Response.
l
t L
~
i 72 -
't i
EA is wrong nor is there any identification of specific information that might alter the conclusions in the EA.
SMUD states that half of ECO's contentions (Jases 1 through P
- 5) focus on procedural minutiae and the remainder are vague and unsupported assertions that more information is needed without any explanation as to why.
4.
Board Analysis.
a.
EA Contention Bases I throuah 5.
These bases allege that the Staff violated various portions of its own regulations.
The Licensee and. Staff describe these allegations as procedural minutiae and/or g
issues of no consequence.
The board generally agrees.
j i
As to Basis 1, NRC regulations pertaining to environmental assessments do not require consultation.
The
'h regulations do require "a list of agencies and persons and identification of sources used."121 The consulted, Staff did this.122 The requirements for the issuance of an EA and FONSI are set forth clearly in the regulations (10 C.F.R. SS 51.30-51.35) and are considerably different from the requirements for an Environmental Impact Statement
.(EIS).
See 10 C.F.R.. S51.70 et seg.
}
We find that the Staff complied with applicable i
regulations by its listing in the EA of agencies consulted.
i t
i 12110 C.F.R. S 51.30(a)(2).
122EA, at 23.
i 4
f i
~ i 1
Nonetheless, we agree with ECO that, beyond the mere list, i
of the consulted an EA should also include a brief stategent agencies' views of the EA.
Such a statement need be no more than "no objection," or " agreement," or perhaps, if appropriate, lack of agreement on a particular aspect of the It would enhance the public's awareness of the details EA.
of Staff review and hence would contribute to increased NRC credibility.
Because NRC regulations do not impose any such requirement, we are not accepting as an issue the Staff's asserted failure to improve its EA discussion.
However, we strongly urge the Commission to take a close look at this matter and, if otherwise appropriate, to propose appropriate We amendments to the Rules to accommodate such a purpose.
do not propose that any consultation be required--only that, if undertaken, its results be published.
The remaining Bases 2 through 5 assign violations to various Staff actions or inactions pertaining to the draft or final EA or FONSI.
The Staff issued a final EA and a final FONSI which in accordance with the rules can be modified by the Board and/or the Commission.
10 C.F.R.
S 51.34(b).
The Staff might have erred in failing to identify the EA clearly as a draft or final as called for in l
10 C.F.R. S 51.119.
If that indeed be error, however, it was clearly harmless:
the only thing lacking was the word r
There was no request for comments and no mention
" final".
e
~
i of a comment period, as would be customary in a draft It had all the necessary earmarks of a final 3
document.
document except for the title.
As to the draft or final the Board attaches little significance to whether the
- FONSI, FONSI is identified as a proposed or final FONSI, either of whic.h can be modified by the Board following a hearing or by the Commission.
b.
EA Contention Basis 6.
ECO alleges that the EA is inadequate because it does consider non-radiological accidents during the not decommissioning process.
Both SMUD and the Staff argue that it is not required because the postulated accidents for Rancho Seco were considered to be within the range of accidents evaluated in the Staff's " Technology, Safety, and i
Costs of Decommissioning a Reference Pressurized Water Reactor Power Station," NUREG/CR-0130, June 1978, which formed the basis for the GEIS chapter on PWRs.123,124,
~
In NUREG/CR-0130, the Staff considered a number of non-radiolcgicah accidents and the risk was determined to be insignificant.125 SMUD's ER referenced this evaluation 123GEIS at 4-1.
124EA at 21.
i i
125NUREG/CR-1030, Vol. 1 at SS 11.2.3_("Nonradiological-Safety Evaluation"), 11.3.2 (" Safety Evaluation of Construction or Industrial Accidents"), and 11.4.3
("Nonradiological Transportation Safety Evaluation").
1 I
~;
2 h
and stated that the accident potential at Rancho Seco was within the NUREG/CR-0130 considerations.126 Additionally, ECO did not specify any accident which should have been, but was not, considered in the EA and accordingly fails to meet the basis and specificity requirements of 10 C.F.R.
S 2.714.
A contention that simply alleges that some matter ought'to be considered does not provide the basis for an admissible contention.127 Basis 6 accordingly is denied.
c.
EA Contention Basis 7.
ECO alleges that the EA's consideration of radiological impacts is without sufficient basis because there is no engineering analysis of an independent spent fuel storage installation (ISFSI) on which to base conclusions with t
respect to normal and accident emissions.
Licensee and Staff both argue that this basis is irrelevant, because the ISFSI is the subject of a separate proceeding and is'not part of decommissioning.
We found earlier that certain ISFSI funding allegations would not likely be considered as part of the ISFSI proceeding.
With respect to environmental or safety questions, however, that conclusion does not follow.
As the Commission has stated, decommissioning activities do not
'l 126ER at 5-8.
127 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
l 519, 553-54 (1978).
r
t i
! i include the removal and disposal of spent fuel which are considered to be operational activities.
53 Fed. Reg. at 24019.
SMUD filed a request for a Materials License for the
[
ISFSI facility under Part 72 on October 4, 1991 and has provided a separate ER for the ISFSI (as well as a separate FSAR).
The Staff's consideration of the Part 72 license was noticed in the Federal Register on January 13, 1992128, The Federal Register notice provided an opportunity for a 4
hearing on request.
The matters at issue clearly included the environmental and safety issues that ECO seeks to b
present here.
ECO did not take the opportunity at that time to seek to intervene on issues related to the ISFSI, and SMUD and the Staff argue that ECO should not now be allowed to raise issues that are properly within the scope of the ISFSI application.
At least with respect to environmental and L
i safety issues, the Board agrees.
(As for funding matters, j
as explained earlier, different considerations apply.)'
l During the prehearing conference, ECO for the first time argued that the ISFSI and the DP are interlocked and the radiological impacts of the ISFSI are an inseparable part of the DP.
ECO stated that separating the planned existence and impacts of the ISFSI and the overall i
decommissioning plan is an illegal segmentation of the 12857 Fed. Reg. 1286 (1992).
i
, i t
environmental considerations and the radiological e
considerations.129 i
SMUD argues that ECO had not been foreclosed from raising any cumulative impacts but has failed to identify any cumulative impact that should have.been examined but was The Licensee also mentions that ECO was not precluded not.
from raising legitimate issues in the ISFSI proceeding but chose not to do so.130 SMUD also argues that the ISFSI is
?
not an integral part of the DP, stating that if SMUD had a
continued to operate Rancho Seco, it would have had to build an ISFSI simply to store the spent fuel generated from operation of the plant.
Additionally, SMUD claims that if ECO really believed that there was a cumulative impact that its needed to be addressed and called into question the EA, obligation was to identify that impact and provide a basis ECO has failed to
[
supported by facts and/or expert opinion.
do so.
i The Board finds that ECO's raising the issue of illegal i
I segmentation of impacts is without substance because ECO has failed to identify any environmental or safety impact of the ISFSI facility that would or could impact on any conclusions j
- Further, concerning the decommissioning of Rancho Seco.
ECO's raising the allegation at the prehearing conference 129Tr. 527-30.
l 130Tr. 530.
l
?
1
~
2 was c1carly untimely, without any attempt to justify the untimeliness.
Absent any specification of potential impact, the allegation of illegal segmentation lacks basis and is rejected.
I In sum, because safety and environmental matters-related to the ISFSI application are outside the scope of the decommissioning application, and because the illegal segmentation argument lacks any basis, Basis 7 is rejected.
d.
EA Contention Basis 8.
ECO alleges that the EA's findings are inadequate because there is no discussion of the activities to be performed by SMUD.
ECO further states that there is no discussion or quantification of the environmental, including e
economic and socioeconomic, impacts of the decommissioning and no discussion of the changes that have taken place since the issuance of the Staff's FES on the operation of Rancho l
Seco in 1973.
i Both Licensee and Staff argue that this issue is without basis.
The entire EA discusses the decommissioning activities to be performed by or under.the direct supervision of SMUD.
Section 3.0 of the EA includes
{
discussions of the site and location of the plant (53.1.1),
socioeconomics is discussed in the EA at S3.1.3, as well as in the GEIS at SS.4 and the ER at S 5.4, and the impact of 7
decommissioning activities on transportation, water use, and l
water quality at SS 3.1.7, 3.1.5, and 3.1. 8 respectively.
a i
f i
_~
i I
e ECO makes no showing that any of these matters are misstated i
and identifies no specific additional information that it says should have been included and might affect any conclusions in the EA.
Further, ECO identifies no facts or r
i 1
expert opinion, and references no documents or other sources i
establishing the existence of a genuine dispute on a j
t material issue of law or fact.
Basis 8 is fatally flawed and is rejected.
FA Contention Basis 9.
e.
ECO alleges that the EA errs in finding that the only relevant demographic and socioeconomic effects are within a 13-mile radius of Rancho Seco.
It asserts that the
" relevant radius is 50 miles as demonstrated by both the l
SMUD submissions and general NRC practice.n131 SMUL responds that the allegation has no basis because the EA makes no such finding, stating that the EA merely reports the number of permanent residents currently within a r
13-mile radius, as previously set forth in'SMUD's ER.
SMUD notes that, for background purposes, population data for 50-miles were also included in the ER.132 Both SMUD and the t
f Staff also argue that the issue has no basis in that ECO does not delineate a single example of_any demographic or socioeconomic impact which could be relevant to the 131ER Contention, at 6.
132SMUD ER Response, at 27.
t i
t decommissioning of the plant but was not considered by the i
Staff in the EA.
Further, ECO identifies no facts or expert opinion supporting the need for any further discussion in the EA, and references no sources or documents on which it intends to rely.
The Staff adds that any challenge to the i
13-mile discussion should have been filed earlier, inasmuch
_j I
as the Staff derived its data from SMUD's ER.133 At the prehearing conference, ECO for the first time identified.the source of its 50-mile claim.
It referenced il the " general NRC practice" of permitting persons residing within 50 miles of a f acility to intervene and transmutes that practice into a generic requirement for ascertaining an area within which the Staff must evaluate environmental impacts.134 As the Staff observes, there is no such presumption with respect to the determination of areas for evaluating environmental impacts.135 Use of the 50-mile premise for standing purposes in construction permit or operating l
license proceedings was. based on the conceivability of i
t effects of a design-basis accident extending that distance, l
i l
r SMUD EA Response, at 27-28; Staff EA Response, at i
133 21-22.
134Tr. 540, 542.
j 135Tr. 542-43.
i I
thus providing injury in fact for purposes of standing.136 In fact, even for standing purposes, the Commission has limited the presumption to proceedings in which an " obvious potential for offsite consequences" at that distance could eventuate.137 No one has demonstrated that this proceeding is one involving potential offsite consequences that could extend as far out as 50 miles.
In any event, the requirement for showing injury in fact for standing purposes has always been significantly less than for demonstrating an acceptable contention, even under the lower threshold available under former rules.138 Even if we should overlook the lateness of ECO's explaining the basis for its 50-mile claim, the basis is inaccurate and hence insubstantial.
Moreover, at the prehearing conference the Board inquired whether ECO could delineate any particular impacts of decommissioning between 13 and 50 miles from the facility that were not considered,
- See, e.g., Yirainia Electric and Power Co. (North 136 Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56-P.7 (1979); Tennessee Vallev Authority (Watts Bar Nuwtoar Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421
- n. 4 (1977); Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 443 (1979).
137 Florida Power & Licht Co. (St. Lucie Nuclear-Power Plant, Units 1 and 2), CLI-89-21, 3 0 NRC 3 25, 329-30 (1989);
l see also Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-93-1, 37 NRC 5, 9-12 (1993).
CLm Consumers Power Co. (Palisades Nuclear Plant),
l 13B LBP-79-20, 10 NRC 108, 115 (1979).
! and it was unable or unwilling to do so.139 Accordingly, we reject the issue as lacking any viable basis.
f.
EA Contention Basis 10.
i ECO alleges that the EA is inadequate because it does not consider the alternative of preserving the plant in operable status for possible future use.
This issue is rejected because the Commission has already determined that the Staff need not consider the alternative of preserving the plant in operable status for possible future resumption i
A of operation 140 g.
The SER Contention.
Both Staff and Licensee argue that this contention should be rejected on the grounds that it is not relevant to the decommissioning action.
As discussed supra, the ISFSI facility is the subject of another proceeding which ECO had opportunity to participate but declined.
Licensee states that ECO is incorrect in alleging that the design and scheduling of the ISFSI are unknown.
Licensee reports that this information is provided in the revised ISFSI ER.141 ECO makes no attempt to address this information and
{
provides no facts that would indicate any effect on SMUD's 139Tr. 541-42.
j 140CLI-93-3, supra, 37 NRC at 144-45.
i 141 Revision to the Rancho Seco Independant Spent Fuel Storage Installment Environmental Report.
DAGM/NUC 93-008 l
(June 16, 1993).
4
- i decommissioning plan or on the Staff's Safety Evaluation.
l 1
Both Staff and Licensee point out that the Staff's SER discusses the ISFSI schedule and specifically states that its evaluation of the safety of decommissioning Rancho Seco does not depend on approval of the ISFSI design or on the ISFSI schedule:
l Although the Licensee analysis assumes NRC approval of l
an ISFSI design, this safety evaluation does not depend on that approval.
Even if RSNGS were to remain in Custodial-SAFSTOR until Deferred-DECOM, the impacts of i
i RSNGS in Custodial-SAFSTOR are well within the impacts evaluated in the Final Environmental Statement related to the operation of RSNGS.142 The schedule, especially the transition from custodial-SAFSTOR to Hardened-SAFSTOR, and the length of the Custodial-SAFSTOR period directly depends on the l
licensee ability to get the necessary NRC approvals for dry onsite storage of spent fuel.
On the basis of the information submitted by the licensee, the staff finds i
i the proposal acceptable even if approval for onsite storage is not achieved before the DECON phase.143 t
ECO provides no basis to dispute these statements.
Based on these statements it is clear that the ISFSI is not relevant to any conclusions in the Staff's Safety Evaluation of SMUD's decommissioning plan.
ECO's SER contention-is thus denied for lack of basis.
h.
Conclusions as to Basis and Soecificity.
The Board has reviewed each of the 10 bases of ECO's EA ti contention and the SER contention and has found none to meet-the requirements of 10 C.F.R. S 2.714.
Accordingly, they l
5 i
{
142 Safety Evaluation at 2.
143 Safety Evaluation at 9.
T
f i
- 84 are denied.
In reaching this decision the Board has also l
l considered whether any issues were raised that, while not i
meeting the pleading requirements of S 2.714, raise issues of sufficient importance in environmental or health and We can safety areas that the board should inquire further.
discern no such issues among the environmental or safety l
issues attempted to be raised here.
i.
The Lateness Factor.
Pursuant to the Commission's Order (see CLI-93-3, supra, 37 NRC at 154), ECO was required to address the Commission's requirements for late-filed contentions which essentially involves addressing the five factors found in l
10 C.F.R. S 2.714 (a) (1) (i)-(v).
These factors have been set i
forth earlier in this Order.
ECO states that f actor (i) is satisfied in most cases because the information in the Staff environmental documents was otherwise not available for ECO's review previously, b
including the fact that the " principal environmental l
document", the Staff's EA, was not available until on or after June 16, 1993.
ECO states that factors ii, iii, and d
iv favor ECO in that there are no other intervenors in the case to protect or represent ECO's interest and the credentials of ECO's proposed experts show not only a generalized expertise in nuclear power plants but a specialized expertise with respect to Rancho Seco and-their testimony can be expected to assist in developing a sound
-l
)
. record.
As to factor v, ECO argues that, while it is clear that without ECO's participation there will be no proceeding, the issue of delay should receive little weight since the need for the agency to take the required "hard look" at the environmental alternatives and consequences outweighs the unavoidable delay in satisfying NEPA's purposes.
The Staff agrees that ECO's Bases 1 through 5 could be considered timely because those bases challenge matters relevant only to the Staff EA which was only recently available.
The Staff argues that no good cause for late-filing can be shown for Bases 6 through 10 or for the safety contention principally because the information was available much earlier and could have been acted on previously.144 Commission regulations provide that environmental contentions, to the extent possible, must be submitted on the basis of the Licensee's ER and may not await the Staff's environmental document.
10 C.F.R. S 2.714 (b) (2) (iii) provides:
On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report.
The petitioner can amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating
[
thereto, that differ significantly from the data or conclusions in the applicant's document.
144Tr. 275-78.
Thus, as a matter of law, an intervenor must file contentions on the basis of an applicant's ER, and does not have good cause for delaying its filing until issuance of a-Staff document unless it establishes that new or different data or conclusions are contained in that Staff environmental document.
No such showing has been made with Bases 6 through 10.
ECO has not identified any data or conclusions in the EA that differ significantly from the data or conclusions in Licensee's ER or NUREG-0586.
Since Licensee's ER has been available since 1991 and the Generic Environmental Impact Statement (GEIS) on Decommissioning of Nuclear Facilities, NUREG-0586, since August 1988, there is no good cause for ECO's failure to challenge the substance of the Licensee's report earlier in this proceeding.
SMUD and the Staff also appear to categorize ECO's SER contention as untimely, in that it should have been submitted at an earlier date in the separate ISFSI proceeding.
Whether it would be timely in that other proceeding is beyond the purview of this proceeding.
And whether jurisdictionally it should have been submitted in that other proceeding, rather than here, also has nothing to do with timeliness here.
However, as SMUD also observes, any contention challenging the safety matters in the SER i
should have been submitted as a challenge to the Licensee's FSAR and thus is currently untimely.
In view of the foregoing, the SER contention is rejected both for lack of
_ basis and for untimeliness without adequate justification.
Based on the above discussion, the Board concludes that ECO timely filed its challenges set forth in Bases 1 through 5 of its EA contention.
This is not the case, however, for Bases 6 through 10 of the EA contention and for the SER contention.
As pointed out by both Licensee and Staff, ECO has failed to make any showing that the Staff's EA differs significantly from SMUD's environmental submissions and/or from the GEIS with respect to the data relied upon or the conclusions reached.
There is therefore no " good cause" shown to demonstrate that its contentions could not have been raised earlier based on the ER and/or the GEIS.
- And, for reasons outlined earlier, there is no significant safety or environmental issue set forth that would warrant our balancing of the timeliness factors to admit these bases.
F.
Schedules.
e As discussed at the prehearing conference (Tr. 573-74),
j the Board will convene a telephone prehearing conference to establish schedules for discovery on the admitted contentions, the filing of further motions for summary disposition and, if necessary, evidentiary hearing dates.
We will establish the time for such call in the near future.
G.
ADoeal Richts.
This Order is not subject to immediate appeal to the Commission pursuant to 10 C.F.R. S 2.714a.
It neither wholly denies nor grants a petition for leave to
f 88 -
intervene / request for a hearing.
The Commission's Order in 1
CLI-93-03 performed those functions.
We express no view with respect to the potential for discretionary Commission t
review should any party seek such review.
H.
Order.
For the reasons stated, it is, this 30th day of.
November, 1993 ORDERED:
1.
ECO's Funding Contention, bases 1,
5, 11 and 13 (considered collectively) and bases 2 and 14 (collectively) i are hereby accented for litigation.
The remedy set forth in Basis 4 may also be litigated, although the remainder of Basis 4 is denied.
2.
Bases 3, 6,
8, 9,
10 and 12 of the funding contention, and the LOOP and ER/SER contentions in their entirety, are denied.
3.
Summary disposition of the previously admitted LOOP contention is hereby aranted, q
1 l
I I
l
- 4.
This Order is an interlocutory order not subject to immediate appeal pursuant to 10 C.F.R. S 2.714a.
THE ATOMIC SAFETY AND LICENSING BOARD 1, !r
^ rp k l ?w r,-
Charles Bechhoefer, Cha,irman ADMINISTRATIVE JUDGE f
'w w f+1+
Dr. Richard F.
Cole ADMINISTRATIVE JUDGE Thomas D.-Murphy V
/
ADMINISTRATIVE JUDGE
/
Bethesda, Maryland November 30, 1993 i
l l
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 (Decommissioning Plan))
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LBP-93 2ND PREH. CONF...
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 Commission Appellate Administrative Judge Adjudication Charles Bechhoefer, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission 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 Commission Washington, DC 20555 Washington, DC 20555 Charles A. Barth, Esq.
James P. McGranery, Jr., Esq.
Lisa B. Clark, Esq.
Counsel for Petitioner i
Office of the General Counsel 1255 23rd Street, N.W., Suite 750 U.S. Nuclear Regulatory Commission Washington, DC 20037 Washington, DC 20555 Thomas A. Baxter, Esq.
David R. Lewis, Esq.
Shaw, Pittman Potts & Trowbridge 2300 N Street, NW.
Washington, DC 20037 Dated at Rockville, Md. this 1 day of December 1993 Office of the Secretary of the Commission i
~. ~..
- 3. ~.. -
,s
_...