ML20070S698
| ML20070S698 | |
| Person / Time | |
|---|---|
| Issue date: | 02/28/1994 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V38-N05, NUREG-750, NUREG-750-V38-N5, NUDOCS 9405240153 | |
| Download: ML20070S698 (109) | |
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-COMMISSION ISSUANCES November 1993-p## """%9 f
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Available from Superintentendent of Documents U.S. Government Printing Office Mail Stop SSOP Washington, D.C. 20402-9328 A year's subscription consists of 12 softbound issues,.
4 indexes, and 2-4 bardbound editions for this publication.
Single copies of this publication are available from National Technical information Service Springfield, VA 22161 e
' Errors in this publication may be reported to the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301/492-8925)
'f Vol. 38, No. 5 Pages 187-288 j
NUCLEAR REGULATORY COMMISSION ISSUANCES November 1993 i
This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions
-l (DD), and the Denials of Petitions for Rulemaking (DPRM).
The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent legal significance.
U.S.kUCLEAR REGULATORY COMMIS-SION Preparod by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301/492-8925) l
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COMMISSIONERS
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Ivan Selin, Chairman Kenneth C. Rogers Forrest J. Remick E. Gali de Planque I
l B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety and Ucensing Board Panel l
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CONTENTS Issuance of the Nuclear Regulatory Commission ADVANCED MEDICAL SYSTEMS, INC.
(One Factory Row, Geneva, Ohio 44041)
Docket No. 30-16055-CivP (Civil Penalty)
ORDER, CLI-93 24, November 24,1993.
187 Issuances of the Atomic Safety and Lice:;3ing Boards GEORGIA POWER COMPANY, et al.
(Vogtle Electric Generating Plant, Units 1 and 2)
Docket Nos. 50-424-OLA-3,50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)
(Re: License Amenmnent; Transfer to Southern Nuclear)
MEMORANDUM AND ORDER, LBP-93-22, November 17,1993 189 SACRAMENTO MUNICIPAL UTILITY DISTRICT (Rancho Seco Nuclear Generating Station)
Docket No. 50-312-DCOM-R (ASLBP No. 93-677-01-DCOM-R) l (Decommissioning Plan) (Facility Operating License No. DPR-54)
SECOND PREllEARING CONFERENCE ORDER, 200 l
LBP-93-23, November 30,1993.
Issuances of Directors' Decisions BOSTON EDISON COMPANY (Pilgrim Nuclear Power Station)
Docket No. 50-293 (License No. DPR-35)
DIRECTOR *S DECISION UNDER 10 C.F.R. 62.206, DD-93-17, November 19,1993.
264 NUCLEAR ENERGY SERVICES Docket No. 30-22060 DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206, 255 DD-93-16, November 19,1993.
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1 Cite as 38 NRC 187 (1993)
CLI-93-24 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
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I COMMISSIONERS:
l:
Ivan Selin, Chairman l
Kenneth C. Rogers Forrest J. Remick E. Gall de Planque l
5 in the Matter of Docket No. 30-16055-CivP (Civil Penalty)
ADVANCED MEDICAL SYSTEMS, INC.
(One Factory Row, Geneva, Ohlo 44041)
November 24,1993 The Commission denies petitions, one from the NRC Staff and the other from the Licensee, seeking reconsideration of the Commission's September 30, 1993 Memorandum and Order, CLI-93-22, 38 NRC 98, which affirmed in part, and reversed and remanded in part, the Atomic Safety and Licensing Board's decision, LBP-91-9,33 NRC 212 (1991). In LBP-91-9, the Licensing Board granted the Nuclear Regulatory Commission Staff's motion for summary disposition in a proceeding to impose a $6250 civil penalty on Licensee, Advanced Medical Systems,Inc.
ORDER
)
The Commission has before it two petitions, one filed by the Nuclear Regulatory (NRC) Staff and the other by Advanced Medical Systems, Inc.
(AMS), each of which seeks reconsideration of the Commission's September 30, 1993 Memorandum and Order, CLI-93-22,38 NRC 98. In that order, the j
Commission affirmed in part, and reversed and remanded in part, the Atomic Safety and Licensing Board's Memorandum and Order, LBP-91-9, 33 NRC y
187
h 212 (1991), in which the Licensing Board granted the NRC Staff's motion for summary disposition. We deny both petitions.
This proceeding involves AMS' challenge to the NRC Staff's order imposing a $6250 civil penalty for four alleged violations: "(1) exposure of an individual to radiation in excess of regulatory limits, (2) inadequate surveys to evaluate radiation hazards, (3) failure to read dosimeters at required intervals. and (4) l failure to calibrate dosimeters using specified techniques and within specified l,
time intervals. In CLI-93-22, we affirmed the Licensing Board's grant of l
summary disposition with respect to Violations 1,3, and 4. AMS petitions for j
reconsideration of this portion of the order. Also in CLI-93-22, we reversed the Licensing Board's grant of summary disposition regarding Violation 2 and we remanded to the Board for further proceedings all issues related to that violation.
l l'
The Staff seeks reconsideration of this portion of CLI-93-22.
I Neither the Staff nor AMS has identified any error or abuse of discretion by the Commission in deciding CLI-93-22. Nor have the Petitioners persuaded us that our decision is otherwise incorrect or incomplete. Rr the most part, both of the petitions merely re-argue matters that the Commission already considered in deciding CLI-93-22. AMS does raise one new issue, i.e., that the Staff was barred by the doctrine of res judicata from litigating Violation 1. Ilowever, AMS has not offered, nor can we find, any basis for this argument.
Er the reasons stated above, the Staff's and AMS' petitions for reconsider-ation of CL1-93-22 are denied.
It is so ORDERED.
For the Commission' SAMUEL J. CIHLK Secretary of the Commission J
l Dated at Rockville, Maryland, this 24th day of November 1993.
l I Conmussioner Remick was not present for the affirmation of this onicr;if he had been present tr would have approved it.
188
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Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND UCENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge O
Robert M. Lazo,* Deputy Chief Administrative Judge (Executive) g Frederick J. Shon,* Deputy Chief Administrative Judge (Technical)
O Members Dr. George C. Anderson James R Gleason*
Dr. Kenneth A. McCollorn h
l Charies Bechhoefer*
Dr. David L. Hetnck Marshall E. Miller Peter B. Bloch*
Emest E. Hill Thomas S. Moore
- G. Paul Bol!werk lil*
Dr. Frank F. Hooper Dr. Peter A. Morris
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Glenn O. Bright Elizabeth B. Johnson Thomas D. Murphy
- Dr. A. Dixon Callihan Dr. Walter H. Jordan Dr. Richard R. Partzek Dr. James H. Carpenter Dr. Charles N. Kelber*
Dr. Hany Rein
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Dr. Richard E Coie*
Dr. Jerry R. Khne*
t.&rter S. Rubenstein Dr. Thomas E. Elleman Dr. Peter S. Lam
- Or. C,evid R. Schink d
Dr. George A. Ferguson Dr. James C. Lamb 111 Ivan Vt. Smith
- Q l
Dr. Harry Foreman Dr. Emmeth A. Luebke Dr. George F. Tidey l
Dr. Richard F. Foster Morton B. Marguhes*
Sheldon J. Wolfe j
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- Permanent panel members i
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Cite as 38 NRC 189 (1993)
LBP-93-22 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B. Bloch, Chair Dr. James H. Carpenter 1
Thomas D. Murphy in the Matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)
(Re: License Amendment; Transfer to Southern Nuclear)
GEORGIA POWER COMPANY, et al.
(Vogtle Electric Generating Plant, Units 1 and 2)
November 17,1993 The Licensing Board gnmted, in part, Staff's Motion to defer discovery of i
certain documents related to an ongoing investigation. In limiting the extent of the deferral, the Board used a balancing test comprised of four factors: 1(1) the length of the delay, (2) the reason for delay, (3) the defendant's assertion of the right to a prompt proceeding, and (4) the prejudice to the defendant of a delay in the civil proceeding. It applied the Commission's guidance that these elements are guides in balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case.'" Oncology Services Corp., CLI-93-17,38 NRC 44,51 (1993),
quoting United States v. Eight Thousand Eight Hundred and Fifty Dollars in United States Currency, 461 U.S. 555, 565 (1983). (The Commission also considers the " risk of erroneous deprivation," (38 NRC at 57) which appears to apply primarily in cases of the immediatley effective suspension of a license. In this case there is no suspemsion, so we deal with the harm to GPC entirely under j
J the factor covering " prejudice" to it.) The Board also considered the diligence 189 I
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1 being exercised by the Staff to bring the investigations to a close. Oncology Services, 38 NRC at 60.
RULES OF PRACTICE: DELAY IN DISCOVERY; ONGOING INVESTIGATION
'Ihe Licensing Board weighed several factors related to the Staff's request for a delay due to an ongoing investigation and concluded that only part of the Staff's requested delay should be granted.
MEMORANDUM AND ORDER (Renewed Motion to Compel Staff Production of Documents) j On August 31, 1993, we issued an unpublished Memorandum and Order t
that determined that we would not order the production of documents that Georgia Power Company (GPC) sought from the Staff of the Nuclear Regulatory Commission (Staff). The Staff wished to withhold specific documents from discovery because of its claim that release of the documents would interfere with an ongoing enforcement investigation. On the other hand, we considered these materials essential to the adjudication of this casc. Mr. Mosbaugh's
[Intervenor's] petition was filed in October 1992; and we were syfnpathetic to GPC's desire to get this case tried in a timely manner. We stated, on August 31,1993, that we were highly sensitive to this need, even though GPC had not pfesented specific factual arguments about the extent to which it is being injured i
by delay.'
Ain Piping Sperlahsu Inc, unpublished opmion of March 18,1992 (staff Reply Concerning Stay), the presiding officer considered whether or not to stay a civil proceedmg concerning possible reinstatement of a license to use special nuclear nutterials. The stay was sought by the Staff because of a pending criminal prosecution. The effect of the stay would have been to keep the rr.apondent in the case out of business indc6nitely. The presiding of6cer applied de following test to whether or not to grant the stay:
The test is a weighing of four factors: (1) the length of the delay, (2) the reason for delay, 0) tie l
defendant's assernon of the right to a prompt proceeding, and (4) the prejudice to the defendant of a f
delay in the civil proceeding. (Barker y Wingo, 407 U.S. 514, 530 (1972) and Un#cd States v. Eight Thousand fight flundred and FVry Dollars (38,850) in United States Currency, As1 U.S. 555,5s4-ss (1983L See alm Admaced Medical Systems. AL187-4,25 NRC 865,869-71 (1987).1 Ahhough a stay is not bemg sought in the instant case, the question may be considered to be analogous; when to require the daclosure of documents alleged to be relennt to an enforcement purpose.
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INTRODUCTION 2 AND POSITION OF Tile PARTIES
' On May 3,1993, GPC filed its First Request for Production of Documents by the NRC Staff. Ibliowing unsuccessful attempts to reach an agreement with 1
the Staff concerning document production, GPC's Motion to Compel was filed requesting that the Staff produce a limited set of documents: (1) 44 tapes provided by Intervenor to NRC, (2) transcripts of such tapes, and (3) certain documents evidencing statements made by Intervenor to NRC. The NRC Staff's response requested the Board to defer ruling on GPC's Motion to Compel, j
representing that a period of 75 days should be sufficient for completion of the
.i Staff's investigation and enfmement review.
He Board's Memorandum and Order (Motion to Compel Production e:
Documents by the NRC Staff), dated August 31,1993 (the " Board's Order"),
deferred for 75 days GPC's Motion to Compel NRC Staff Production of Documents, dated August 9,1993 ("GPC's Motion to Compel"). De Board ordered that "[o]n Monday November 8,1993, the first working day after the 75th day, the [GPC) Motion shall be granted, unless the Staff has earlier filed a show<ause motion. Such a motion should be filed by the Staff promptly upon learning that it will need a further extension of time." Board's Order at 7.
Now the Staff has filed a timely " Motion for Further Extension of Time to Defer Discovery Documents to the Licensee," October 27,1993 (Staff Motion).
It requests at least until March 15, 1994, for the production of the requested documents anu suggests that a further delay may also be necessary.
He Staff asserts that its requested delay is necessary due to the need for
-l additional efforts by the Office of Investigations ("OI"), including additional interviews, which are expected to be completed by December 17,1993. Staff's Motion, Affidavit of James Lieberman at 2. The Staff's requested delay also includes the time necessary for the NRC's Office of Enforcement, Office of General Counsel, and Office of Nuclear Reactor Regulation "to evaluate and analyze the material gathered by OI, and to determine whether enforcement action is warranted." Staff's Motion at 3. "[B]arring unforeseen circumstances, the Executive Director for Operations would forward his decision regarding possible enforcement action to the Commission by February 18,1994, for Commission action." Lieberman Affidavit at 2.
Mr. Lieberman also states that the "O1 Office retains the responsibility to again refer this matter to [the Depar: ment of Justice] if, after completion, the investigation reveals evidence of a willful violation of certain NRC regulations.
The possibility of further review by the Department of Justice may further delay review [by the Office of Enforcement]." Id. at 3.
7In this section of our opinmn;me borrow prartically verbaum the accurate discusion in GICs Motion in Compel NRC staff Pmducuan of thunems, November 8,1991 191
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- Ihe Staff takes the position that "[t]he requested documents should not be released until the Commission completes its review and a determination is made whether to initiate an enforcement action." Staff's Motion at 3. He Staff's new schedule is a "present best estimate schedule based on the review and planning efforts of the Staff which are proceeding with all deliberate speed." /d.
~,
he history of the changes to the Staff's schedule for the investigation and enforcement activities is worth recounting:
i 1.
In mid-1990, following the receipt of allegations from Mr. Mosbaugh that GPC officials had made material false statements to the NRC Staff, an O! investigation was initiated.
2.
In October 1991, the NRC informed a Department of Labor Administra-tive Law Judge, who was hearing a complaint filed by Mr. Mosbaugh, that the NRC "was making every effort to conclude" its investigation "as quickly as possible."
3.
In late 1991 or early 1992, OI referred the case to the Department of Justice ("DOJ"), which, in March 1993, referred the matter back to NRC to be " pursued administratively" During the DOJ review, 01 investigators were assigned as special agents to the U.S. Attorney's Office in Atlanta.
4.
On March 8,1993, the Staff filed with the Board an affidavit of Mr.
Ben Hayes, Director of 01, which stated:
"I believe these [DOJ and Ol]
investigations and review of the allegations can be completed within four to six months." NRC Staff's Response to Licensing Board Memorandum and Order (Admitting a Party), Hayes Affidavit at 3, 5.
In April-1993, the Staff informed the Licensing Board that the inves-tigation was expected to be completed within the next several months, but stated that "the date of completion of the investigation cannot be predicted, as it is unknown where matters uncovered in the investiga.
tion will lead." NRC Staff Response to the Licensing Board Questions Regarding Schedule and Discovery, dated April 13,1993, at 5.
6.
On August 26,1993, the Staff filed another affidavit signed by Mr. Hayes which stated: " Based on the current status, I believe this {0l] review can be completed within two months."
7.
On October 21,1993, counsel for the Staff contacted counsel for GPC to solicit GPC's reaction to an NRC request to delay the production of documents until December 17, 1993. This date was said to include sufficient time for NRC Staff review, EDO approval, and, if necessary, Commission approval.
8.
On October 25, 1993, counsel for the Staff advised counsel for GPC that the Staff would be requesting a delay until January 12,1994.
. 9.
On October 27,1993, the Staff's Motion was filed requesting a delay until March 15,1994.
192
i IL TIIE LEGAL STANDARD
'Ihe four-factor test cited in the Board's Memorandum and Order of Augu:.t 31,1993, is still applicable:
The test is a weighing of four factors: (1) the length of the delay (2) the reason for delay, (3) the defendant's assertion of the right to a prompt prococding, and (4) the prejudice to the defendant of a delay in the civil proceeding. Board's Order at 2 n.1 (quoting Piping Specialists Inc unpublished opinion of March 18, 1992).
Since our Memorandum, the Commission has held that "'none of these factors is a necessary or sufficient condition for finding unreasonable delay. Rather, thcsc clements are guides in balancing the interests of the claimant and the Government to assess v.hether the basic due process requirement of fairness has -
been satisfied in a particular case."' Oncology Services Corp., CLI-93-17,38 NRC 44,51 (1993),' quoting United States v. Eight Thousand Eight Hundred and Fifty Dollars in United States Currency,461 U.S. 555,565 (l983).
We also note that the Commission considers it to be relevant that "the Licensing Board is closely monitoring the status of the NRC investigations to ensure that due diligence is being exercised to bring the investigations to a close." Oncology Services, 38 NRC at 60.
111. BALANCING Tile FACTORS A.
The Length of the Delay The delay of discovery in this case began in May 1993. If we were to grant the Staff's current request, we would delay discovery until March 1993 - a 10-month delay in discovery. Ilowever, the Staff's request may realistically be viewed as open-ended, since it anticipates further review, which may lead to further investigation and to possible enforcement or criminal actions.
On May 3,1993, GPC filed Georgia Power Company's First Request for Production of Documents by the NRC Staff GPC's Motion to Compel was filed August 9,1993, requesting that the Staff produce a limited set of documents:
(1) 44 tapes provided by Intervenor to NRC, (2) transcripts of such tapes, and (3) certain documents evidencing statements made by Intervenor to NRC.4 The NRC Staff's response requested the Board to defer ruling on GPC's Motion to IThe O aurduin also considers, 38 NRC at 57, the " risk of erroneous deprivauon." which appears 'to apply primardy in cases of the imrnedsately effective suspension of a hcena in this case there is no suspension. so we deal with the harm to GPC entirely under the factor covering
- prejudice" to it
'nere nre 12 documents that GPC has requested in the category of Mr. Mosbaugh's statements. They are identihed at pp. 2s-26 of GPC's Motion to Compel.
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' Compel, representing that a period of 75 days should be sufficient u complete the Staff's investigation and enforcement review.
i We note that the delay in our case also affects the Staff's ability to resolve j
pending 10 C.F.R. { 2.206 petitions that date back to September 1990 and that are being held in abeyance pending the outcome of this proceeding. Georgia i
Power Co. (llatch Nuclear Plant, Units 1 and 2; Vogtle Electric Generating 1
Plant, Units I and 2), CL1-93-15,38 NRC 1,3 (1993).
l fl. The Reason for the Delay l
We consider the allegations against GpC to be highly important. Some of its key officials, who are also key officials of the Southern Nuclear Operating Com-l l
pany (SONOPCO), are accused of intentionally withholding safety information from the Nuclear Regulatory Commission following a site emergency in March 1990. The allegations are serious enough that, if sustained, they raise questions about the character and competence of SONOPCO to operate a nuclear power plant with adequate safety.
%e long history of this case is peppered with assurances of Staff that the investigation was soon to be completed.- (See p.192, above.) In mid-1990, following the receipt of allegations from Mr. Mosbaugh that GPC officials i
had made material false statements to the NRC Staff, an 01 investigation was initiated. Then, in October 1991, the NRC informed a Department of Labor Administrative Law Judge, who was hearing a complaint filed by Mr. Mosbaugh, l
1 that the NRC "was making every effort to conclude" its investigation "as quickly l
as possible." This is the first assurance that the end was in sight.
It is time to determine these charges. While a large investigative record has been compiled, the events happened over 3 years ago. The question is whether people improperly withheld information from the Nuclear Regulatory Commission. The longer the delay, the more likely that key witnesses will be i
lost and recollections will fade. Hence, live testimony becomes less and less reliable.
The Staff has attempted to explain the reason for this delay. In the "NRC Staff Motion for a Further Extension of Time to Defer Discovery Documents to the 1
Licensee"(Staff Motion), October 27,1993, we find the following explanations l
of the slowness of the investigation:
L 1.
The original documentation gathered by 01 "is more voluminous'than realized at first" (id. at 3).
l 2.
The joint review of the Office of Enforcement, the Office of Nuclear Reactor Regulation, Region II, and the Office of the General Counsel "is taking longer than initially anticipated" (id.).-
3.
Further interviews, to be completed by December 17,1993, have been_
j oecessitated (Id.; attached affidavit of James Lieberman at 3).
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4.
Analysis and an additional decision process that must occur after the further interviews are completed (id. at 3).
Of these explanations, the least persuasive is that the documents assembled were "more voluminous than believed at first." This is inexplicable. While we understand some failure to estimate the time for analyzing data and interviewing and reinterviewing witnesses, we see no logical explanation of how a diligent investigation could reasonably fail to know the volume of the documentation it collected. Additionally, when estimates of completion of the investigation
,)
have been so poor, we expect a more complete explanation than we have been j
given. We are not satisfied that the Staff has adequately addressed its reasons for delay, helping us to understand its point of view without compromising its investigation. The size of the record and the need to reinterview witnesses are not, without more, an explanation for the slowness of completing this important investigation. Hence, we are unpersuaded that the Staff has exercised due diligence to promptly bring this matter to a close and present live evidence to a hearing or in the context of a criminal charge. All this time, there is uncertainty affecting both the public's interest in safe operation of a nuclear power plant and GPC's reputation.
Nevertheless, we will also consider Staff's argument that the release of documents will seriously interfere with an important investigation. In this regard, Staff argues that disclosure of the requested information:
1.
Would reveal the possible subjects of the ongoing investigation (Lieber-man Affidavit at 3,14).
2.
Would reveal "possible inspections and the scope of the evidence"(id.).
3.
Could compromise investigation activities (id.).
4.
Could affect the outcome of a further criminal referral to the Der'artment of Justice (which returned one referral to the NRC previously).
We have reviewed these considerations and are unpersuaded that they justify further delay after the current phase of the investigation is completed on December 17, 1993. With Staff's approval, GPC has completed its discovery of documents pe;sessed by Allen Mosbaugh. It also knows which of its own employees have been interviewed, and undoubtedly has obtained information from them. In light of all this completed discovery, we do not accept the Staff's vague assertions of how its investigation will be prejudiced. Nor do we see how any of the arguments can justify a March 15,1994 current request for an extension, with substantial likelihood that further developments would prolong that delay. -
By December 17, 1993, Staff says that all anticipated followup interviews should be completed.5 Although another Staff and Commission review could, 5 staff Motion Affidavit of Janes tubernun at 2,13 (oct. 2,1993). Affidavit or Roger Inrtuna at 2,13 (oct.
27, 1993).
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of course, uncover still further reasons for interviews, we lack confidence that the continuing need for followup on followup continues to be productive.
We also are persuaded by GPC's argument that:'
None of the documents requested by GPC (44 tape recordings made by Mr. Mosbaugh.
associated transcripts, and statenents made by Mr. Mosbaugh) would disclose the identity of any person interviewed except Mr. Mosba%.h None of the documents would disclose persons yet to be interviewed As to the scope and subjects of Ol's imestigation, that information is already known.
We are willing to accommodate the Staff's current plans for investigation, although the balance in favor of permitting this is tenuous, in light of the entire i
record (including arguments discussed below), we are not willing to delay the
'i requested discovery beyond December 17,1993.
C.
The Applicant's Request for a Prompt Proceeding GPC has coPsistently and repeatedly sought a prompt proceeding on its amendment request. It is being denied a prompt proceeding and it deserves to have an evaluation of the prolonged investigation of it.
D.
The Prejudice to GPC We agree with GPC's characterization of the importance of the sought documents:7 public perception and employee morale are adversely affected by NRC's continued withhold-ing of the license amendments on the basis of contrived allegations regarding the character and integrity of the companies' management. The longer it takes to remove the stigma created by such concerns, the greater the chance that the companies' standings in their re-spective communities and m the industry will be adversely affected. Of course, it is difficuit to maintain good employee morale in the face of lingering NRC concerns which are based on such serious allegations lodged by a former employce. Although it cannot be quanti-fied, the importance of good employee morale cannot be overstated. Also, until the license amendments are granted, substantial management attention is required to maintain the ap-proprire separation of the two companies tGpC and Southern Nuclear) who are responsible for operating the Southern systern's nuclear plants (llatch, Vogtle and Farley). Additional administrative costs are also being incurred to maintain duphcate staffs to perform certain administrative services.
.i 6"GPCs Response to NRC staff Motion for a Iwther Extension of Time to Defer Discovery Documents to the Licensce" (Nov. 8,1993) at 8.
I 7 'd at 13-15, as detailed in the attached affidavit of Mr. W. George Hairston m. GPCs Executive Vice President-Nuclear Operations.
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n Furthermore, GPC's ability to mount an effective defense witi be further prejudiced by the passage of another four months. The recollection of CPC employees as well as NRC witnesses is already diminished due to the significant passage of time since the event under investigation occurred Even though there are tape recordings of conversations which occurred in 1990, in some cases, it may be difficult for GPC personnel to recollect the circumstances of those conversations. Further delays in this case will exacerbate the difficulty the Company will experience in defending itself in 1994 against allegations that false statements were made to NRC in April,1990.
Moreover, further delay in the issuance of the license amendments will delay the realization of the benefits of the consolidation, including, for example:
(a) a single-purpose organization dedicated solcly to excellence in nuclear power plant operations, undistracted by the demands of other electric utibty operations; (b) consistency in personnel policies resulting in cost savings and efficiencies, (c) the ability to attract and retain nuclear professionals by offering them an opportunity to build a career within an operating organization responsible for the operation and maintenance of multiple nuclear plants; and (d) an increase in Southern Nuclear's effectiveness through recognition by the nuclear com nunity ofits responsibility as the exclusive operator of three nuclear power plants.
The documents being sought are extremely important to GPC's defense and preparation for this case. This pmceeding involves very serious allegations made by Intervenor against GPC - allegations that GPC vigorously disputes. Intervenor maintains that his allegations are supported by the tape recordings which he transferred to the NRC, and has produced excerpts of his recordings. Intervenor's excerpts, however, are not complete and appear to onut important exculpatory material. Portions of the full tapes have been played in the presence of GPC counsel during O! [ Office of Investigations) interviews and reveal that there are additional statements and discussions showing the importance that GPC places on accurate reporting and the efforts that were undertaken to resolve comtnents on the April 19,1990 IIR. Accordingly, to demonstrate that Intervenor's claims of willful misconduct are baseless, it is critical that GPC have mess to the complete tapes. Indeed, the tapes
']
have already been recognized by the Licensing Board as being
- essential evidence" in this proceeding. Memorandum and Order (April 21,1993), LBP-93-8,37 NRC [292. 299).
Intervenor has also provided other statements to the NRC, and has been interviewed by the NRC on a number of occasions. Access to these documents and statements is similarly essential to determine any other bases (or lack thereof) for Intervenor's allegations and to
]
identify documents that might be introduced as evidence in this proceeding. Needless to say, prior statements by inter <er or may reveal inaccuracies and inconsistencies in his accounts.
affecting Intervenor's credibility. Such prior statements may also include remarks exculpating j
GPC, which may be introduced as admissions. Where a proceeding such as this involves
/
serious allegations and assertions by a single individual, unfettered access to the individual's prior statements is required for a fair and complete hearing.
E.
Conclusion We have weighed all the evidence and arguments in our record. Our prior decision protected Staff's right to continue its investigation. Our current decision j
also protects that right until the current round of interviews is completed. But
'l it is time to limit further delay in this proceeding by giving GPC its day before 197 a....
usJ lts right to that day i, substantial. There is a limit to delay justified by continued and re-continued investigation and " analysis."
IV. PROVISION FOR RECONSIDERATION q
We acknowledge that at an earlier point in this proceeding, the Staff offered to make an in camera presentation that would permit us to understand the reason for the continuing delay. Ilence, it is possible that there are factors present in the investigation that could not be disclosed to us. If, in light of this decision, the Staff concludes that an in camera presentation would tip the balance of the four factors, they may make a showing as part of a motion for reconsideration filed on or before December 3,1993. The first showing should be in writing, containing portions for which in camera status is sought. 'Ihe Staff may also, for good cause shown, request permission to make an oral In camera presentation.
Y, ORDER For all the foregoing reaso s and upon consideration of the entire record in this matter,it is, this 17th day of November 1993, ORDERED that:
1.
Georgia Power Company's Motion to Compel NRC Staff Production of Documents, August 9,1993 [ Motion), is denied until December 17,1993. As of December 18, 1993, the Motion is granted and the Staff of the Nuclear Regulatory Commission shall produce the documents mentioned in the Motion on that day.
198
2.
Motions for reconsideration of this Memorandum and Order must be filed and received by as on or before December 3,1993. A Staff Motion may contain materials for which in camera status is claimed, as discussed above.
FOR THE ATOMIC SAFETY AND LICENSING BOARD A
James II. Carpenter (by PBB)
ADMINISTRATIVE JUDGE Thomas D. Murphy ADMINISTRATIVE JUDGE Peter B. Bloch, Chair ADMINISTRATIVE JUDGE f
13ethesda, Maryland l
i 199
J Cite as 38 NRC 200 (1993)
LB P-93-23 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Charles Bechhoefer, Chairman Dr. Richard F. Cole Thomas D. Murphy in the Matter of Docket No. 50-312-DCOM-R (ASLBP No. 93-677-01-DCOM-R)
(Decommissioning Plan)
(Facility Operating License No. DPR-54)
SACRAMENTO MUNICIPAL UTILITY DISTRICT (Rancho Seco Nuclear Generating Station)
November 30,1993 The Licensing Board issues a Prehearing Conference Order ruling on pro-posed contentions submitted by the Environmental and Resources Conservation Organization (ECO) in response to Commission Orders in CLI-93-3 (37 NRC 135), CLI-93-12 (37 NRC 355), and CLI-93-19 (38 NRC 81). ECO submitted contentions in three areas - decommissioning funding, loss of offsite power (LOOP) and the Environmental Assessment / Safety Evaluation Report (EA/SER).
The Board accepts two seperate funding contentions - determining that they.
raised significant questions with respect to the viability of the decommissioning funding plan and that material submitted in opposition would have required a ruling on the merits, inappropriate at the contention stage of the proceeding. He Board also grants summary disposition of the one LOOP contention previously accepted by the Commission.
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I RULES OF PRACTICE: CONTENTIONS Re rules governing the admissibility of contentions (10 C.F.R. 6 2.714(b) and (d)) were amended in 1989 to raise the threshhold for the admission of contentions. Those rules now require, inter alia, a specific statement of law or fact to be raised or contmverted, a brief explanation of the bases, a concise statement of facts or expert opinion that support the contention (with references to specnic sources and documents), and sufficient information to show that a genuine issue exists with the applicant or licensee on a material issue. On l
NEPA issues, contentions are to be based, at least initially, on the applicant's E
l or licensee's environmental report. The contention must, if proved, entitle the claimant to some relief.
RULES OF PRACTICE: CONTENTIONS In adopting a higher threshhold for contentions, the Commission was not requiring that an intervenor or petitioner prove its case prior to the admission of its contention. He revised rules are intended to require the intervenor to read pertinent pcrtions of an application, and to state the applicant's position and petitioner's opposing view. Rey also permit a petitioner to explain deficiencies of an application. However, the mere circumstance that an intervenor may not cite an application document in its contention does not per se invalidate the contention.
RULES OF PRACTICE: CONTENTIONS Re scope of permissible contentions is normally bounded by the scope of the proceeding itself. On remand from the Commission, however, the scope of issues is confined to issues identified by the Commission. Beyond that, however, an intervenor may seek to file late-fileo contentions, subject to a balancing of the five factors set forth in 10 C.F.R. 9 2.714(a)(i)-(v), within the scope of the entire proceeding.
RULES OF PRACTICE: CONTENTIONS
\\
i The " raised threshold" for contentions must be reasonably applied and is not to be mechanically construed. Rules of practice are not to be applied in an
" overly formalistic" manner.
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RULES OF PRACTICE: NONTIMELY SUl! MISSION OF CONTENTIONS in considering a late-filed contention, a Licensing Board must balance the -
five factors set forth in 10 C.F.R. 6 2.714(a)(i)-(v). Of these, the preeminent factor has long been recognized as factor (i), good cause for failure to file on time. Where a petitioner or intervenor fails to show good cause, the other four factors must weigh heavily in its favor for a petition or contention to be granted.
RULES OF PRACTICE: NONTIMELY SUllMISSION OF CONTENTIONS In considering late-filed contentions, a licensing board's balancing of the five factors must be reasonable - taking into account not only a balancing of the lateness but also each of the other factors, it cluding mitigating circumstances, if any. ' A board has broad discretion in the circumstances of individual cases.
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RULES OF PRACTICE: NONTIMELY SUllMISSION OF CONTENTIONS To be accepted, a late-filed contention must satisfy not only the late-filed factors but also the requirements for contentions. A licensing board need not address these considerations in any particular order, although both are required for admissibility. Analyzing the contention requirements first permits a board to determine whether or not a significant health and safety or environmental question is being advanced, thus assisting the board in considering lateness factor (iii), the contribution to an adequate record to be made by the intervenor.
REGULATORY GUIDES: APPLICATION The Commission has long accepted contentions challenging the adequacy of regulatory guides.
FINANCIAL ISSUE: DECOMMISSIONING FUNDING Decommissioning funding costs exclude the cost of removal and disposal of spent fuel (10 C.F.R. 5 5035(c) n.1), but do not clearly exclude costs of interim onsite storage of spent fuel. The cost of casks to store spent fuel in an onsite ladependent Spent Fuel Storage Installation do not appear to be excluded.
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RULES OF PRACTICE:
SUMMARY
L)1SPOSITION ne legal standards governing motions for summary disposition pursuant to 10 C.F.R. 5 2.749 were recently reiterated by the Commission in Advanced
' Medical Systems, Inc., CLI-93-22,38 NRC 98,102-03 (1993), reconsideration denied, CLI-93-24,38 NRC 187 (1993).
NEPA: ENVIRONMENTAL ASSESSMENT NRC regulations pertaining to environmental assessments do not require consultation with other agencies. Hey only require a " list of agencies and persons consulted, and identification of sources used." 10 C.F.R. 5 51.30(a)(2).
l RULES OF PRACTICE: CONTENTIONS A contention that simply alleges that some general, nonspecific matter ought to be considered does not provide the basis for an admissible contention.
NEPA: ENVIRONMENTAL ASSESSMENT nere is no 50-mile presumption for determining areas in which environ-mental impacts must be evaluated. The 50-mile presumption is applicable in determining injury in fact for standing purposes under certain circumstances.
The standing requirement has always been significantly less than for demon-strating an acceptable contention.
RULES OF PRACTICE: CONTENTIONS Environmental contentions, to the extent possible, must be submitted on the basis of the licensee's Environmental Report (ER) and may not await the Staff's environmental document. He contentions may be amended or expanded if there are data or conclusions in the NRC issuance that differ significantly from data or conclusions in the ER.
RULES OF PRACTICE: APPELLATE REVIEW An order admitting and denying various contentions is not immediately appealable under 10 C.F.R. 9 2.714a where it neither wholly denies nor grants a petition for leave to intervene / request for a hearing.
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TECIINICAL ISSUES DISCUSSED
.l Decommissioning Funding, Loss of Offsite Power.
SECOND PREHEARING CONFERENCE ORDER (Proposed Contentions; Summary Disposition Motion)
This proceeding involves an application by the Sacramento Municipal Utility District (SMUD or Licensee) for decommissioning of the Rancho Seco Nuclear Generating Station, a nuclear facih./ ocated near Sacramento, California. In l
a Memorandum and Order dated March 3,1993, CLI-93-3, 37 NRC 135, reconsideration denied, CLI-93-12, 37 NRC 355 (1993), the Commission determined that the Environmental and Resources Conservation Organization (ECO) possessed standing (as a matter of discretion) and that it had submitted at least one admissible contention. The Commission further permitted ECO to file additional proposed contentions in three designated afeas, subject to various j
)
specified conditions.
ECO responded by submitting, within the time periods specified by the Com-mission, proposed contentions in the three areas defined by the Commission -
decommissioning funding, loss of offsite power (LOOP), and the environmental assessfnent/ finding of no significant impact.8 SMUD and the NRC Staff each 2
submi ted responses opposing admission of each of the proposed contentions On September 21-22, 1993, the Licensing Board conducted a prehearing con-ference to consider these filbgs.'
In addition, on September 7,1993, SMUD filed a motion under 10 C.F.R. 9 2.749 for summary disposition of ECO's original LOOP contention that had been admitted by the Commission.' On September 27, 1993, ECO filed an I
IECo's Contemion on Licensee's Proposed Decommissioning Ibnding Plan, dated March 22,1993 [Ibndmg Contention). ECo's Contention on SMUD's Consideratmn of the Im of offsite Power, dated April 1,1993
[1DoP Comention); ECo's Contemions on the $taff Environmental Assessment (EA) Ihimgs of No Sigmhcant 12,1993 LEA Contention).
imfact, and Safety Evaluation, dated July Licensee's Response to ECo's Proposed Decomnusuoning hindmg Plan Contention, daicd April I.1993
[ SPUD Ibading Responwl; NRC Staff Response to ECO's Contentions Regarding the Ibnding of Decommission-ing, dated April 12,1993 [ Staff Ibadmg Responsel, Licensee's Response to ECo's Proposed LDoP Contentions, dated Apnl 13,1993 {SMUD IDoP Responsel, NRC Staff Respome to ECO's Contention Regardmg the Im of Offsite Power, dated April 21,1993 IStaff Loop Responsel; IJcensee's Answer to ECo's Contentions on the Staff Environnental Assessment, Findings of No Signi6 cant impact. and Safety Evaluation dated July 27.
1993 [sMUD EA Responsel; NRC Staff Response to ECO's Contentions on the Staff Environnental Anessment, Finding of No Significant impact and Safety Evaluation, dated August 2,1993 [ staff EA Responsel 3The conference was announced by the Licensing Board's Notice of Prchearing Conference, dated August 31, 1993, pubhshed at SS Fed Reg,7306 (Sept. 8,1993).
"licenee's Motion for Sumrnary Disposition of ECo's original IDoP Contention, dated September 7,1993 204 i
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m answer in opposition to SMUD's motion,5 whereas the Staff filed a response in support of SMUD's motion.6 Although we did not 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 the close
. relationship of the subject of the admitted contention to the proposed LOOP
- contention, we here deal both with the LOOP contention and the summary disposition motion.
Based on our review of all of these filings, and our consideration of the arguments proffered at the prehearing conference, we hereby conclude that a portion of SMUD's contention on decommissioning funding should be admitted but that no other contention is admissible. We are also granting summary disposition of ECO's original LOOP contention.
A.
General Standards As we observed earlier in this proceeding, the rules governing the admissibil-ity of contentions (10 C.F.R. 5 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), rev'd on other grounds, CL1-93-3,37 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 licensce's environmental report [ER). Thrther, the contention must be of consequence in the proceeding and, if proved, entide 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 not requiring that an intervenor or petitioner prove its case prior to the admission of its contention. As set forth in the Statement of Considerations.
This requirement does not call upon the intervenor to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in tinz which provide the basis for its contention.
Siro's Answer in oppoution to SMUD's Motion far sununary Dispomion of ECo's ()riginal IDoP Comention, dated September 27,1991
- NRC Staff Response in Support of Uwnsee's Motion for Sumnary Dnpomion of ECo's onginal LDoP Contention, dated Septenber27,1991 205
h 54 Fed. Reg. 33,168,33,170 (Aug. I1,1989). In addition, the rules are intended
- to require the intervenor to read 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 lack certain facts or do not address a relevant matter, "it _will be sufficient for the intervenor to explain why the application is deficient." Id. flowever, as we interpret the revised rules, the mere circumstance that an intervenor may not cite an application document in its contention does not per se invalidate the contention - although in particular circumstances it may bear upon the cent ntion's admissibility.
The scope of permissible contentions is normally bounded by the scope of the proceeding itself. Here, the 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. l 2314(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 consider any such contentions that may fall within the scope 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." 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 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 that it was not ruling on any such instances. Pacific Gas and Electric Co. - (Diablo Canyon Nuclear Power Plant, Units 1 and 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.$,37 NRC at 154, ECO was required in certain circumstances to address the Commission's requirements for late-filed contentions, which es-sentially involvu addressing the five factors found in 10 C.F.R. ( 2314(a)(1)(i)-
(v). These factors are:
7 50me pomons of t!w contentions identined ty ow Commission. to t e desenbed in detailinfra, nest hkewise satisfy the late 6 led factws.
8Cwuumers /Wrr Ca (Edland Plant, Units I and 2). CtA74 3,7 AEC 7.12 (1974), citirit Americsa Form lines v. Black Ba:I Freight Service. 397 U S 532 (1970).
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E.
(i) Good cause, if any, for failure to file on time; (ii) The availability of other rneans whereby [ECO's) interest will be protected.
(iii) The extent to which [ECO's] participation may reasonably be expe(ted to assist in developing a sound record; (iv) The extent to v,hich [ECO's] interest will be 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 be.en recognized as factor (i), good cause for failure to file on time.' Although the regulations call for a-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 to be granted.
Long Island Lighting 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 section 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 cascs."5 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.
These 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 acceptance of a contention, determine whethu the contention requirements were satisfied. We choose alternatively to analyze the contention requirements first, to identify whether or not a significant health and safety or environmental question is being advanced. If so, we would then consider whether the timeliness factors i
are themselves 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 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).
' Nuclear fuel Srnkes, Inc. ovest Valley Reprocessing Plano, CLI-75-4. I NRC 273 275 (197rw N West Vaney, supru,1 NRC n 275 207
n.
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.
IL Decommissioning Funding 1,
ECO's Contention ECO's proposed decommissioning funding contention reads as follows:
SMUD's proposed Decommissioning ibnding Plan is inadequate as a matter of fact and of law as detailed below not only (a) tecause tt'e funding plan is inadequate to nwet the cost targets expressed, but also (b) because SMUD lacks the resources to meet those targets, (c) because the mechanism of public and Nuclear [1 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 decomrnissioning 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 faced and the technical and manpower resources that will be demanded during the deconunissioning task."
In support of this broad contention, ECO first states that it will rely on the expertise of Dr. A. David Rossin and/or David R. Crespo." Later, it clarified that it was relying primarily on Dr. Rossin."
Next, the contention sets forth fourteen different bases or reasons in support of its general conclusion (one of which was withdrawn at the September 21-22, 1993 prehearing conference"). Summarized briefly, these are:
1.
Increase in long-term debt by R.8%/ year and increase in dependence upon purchased power; and current avoidance of rate inueases in favor of long-term indebtedness; collectively creating uncertainties of confidence in the firmness, availability, and cost ref power and eventually creating tidal wave of debt that rdl threaten the viability of the 4
funding plan.
2 Decommissioning cost estimate unreliable becausa premised on original cost of Indepen-dent Sper> Fuel Storage lastallation (ISFSI) that has been withdrawn and no new design j
and cost estimate available.
"Hmding Contenuon at 1-2:
I usumnaries of the quah6 canons of these experts were allegedly "previously... provided to the Atomic
- Safety and 1.icensing Board by af6 davis" Obnding Comennon at 2); the Board located the af6 davit of Mr. Crespo j
but was unable to locate any dealing with the quah6cadons of Dr. Rosun. (Dr. Rossin's June 25,1992 af6 davit deah only with the chameterisuca of ECO as an organirauon At the prehearing conference. ECO conceded that
.]
l Dr. Rossin's qualirications aftidavit may not have been Gled in the current proceeding (Tr.187).
" Tr. 309.
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" Tr. 273.
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I 3 SMUD cost estimates inadequate because premised on NRC decommissioning plan approval by mid 1992, which was not fonhcommg. Mis-cstinutes also reflect poor managerial quahtications which in turn cast doubt on adequacy of cost estinntes.
4.
Increase in decommissioning habihty cost estimates for 1991 reflects adversely on SM UD managernent competence and dictates semi-annual report to NRC, to be made publicly available.
3.
Unreliability,,f estimated savings to fund decommissioning to be achieved from Conser-vation and Load Managenent Programs.
6.
Failure of deconunissioning plan and associated funding plan to make adequate provision for physical and personnel security and, in particular, to pmvide a fitness for-duty program.
i 7.
Withdrawn.
J 8.
Failure to include adequate funds in decommissioning cost estimate and funding plan for q
measures to identify all onsite areas containing radioactivity.
9.
Cost estimate and funding plan inadequate for failing to pmvide 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 i
scenarios.
- 10. Deconmiissioning Plan and related cost estimates inadequate for determining radionuclide 1
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 fmancing plan, including planned rate increases, as raising j
t questions concerning adequacy of funding plan.
- 12. Funding inadequate since based on inadequate technical specification bases for spent i
fuellevel and spent fuel temperature; examples of specified scenarios not considered are provided, and failure to include costs of technical corrective measures asserted.
- 13. Funding Plan premised, inter alia, on growth thmugh interest earnings at rates that now are unrealistically high; Funding Plan should consider gmwth at current interest rates and make provision for possible lower rates.
- 14. Funding Plan inadequate because possibihty that spent fuel pool ;r,. mot be closed by 1998 (as projected) might lead to increased costs of $8,milion/ yen from 1999 through 2008 (total $80 million in 1991 dollars); annual revhw and five-year revision also inadequate.
2.
SMUD and NRC Staff Positions SMUD and the NRC Staff oppose the admission of each part of the funding contention, as well as the broader contention, on virtually identical grounds.
Hey claim, inter alia, that insufficient bases have been pleaded, that insufficient descriptions of the funding problems have been advanced, that SMUD has identified no significant funding issue, and, importantly, ECO has failed to 1
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include citations to those portions of the Ftmding Plan with which it disagrees.
They claim that certain attacks on the Funding 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 1
cause for the untimeliness. With respect to funding for the ISFSI, they each
. claim that such consideration is barred by regulation.
We will discuss the particular points raised by SMUD and the Staff in conjunction wi'h our consideration of various portions of the funding contention, to which we now turn, y'
l 3.
Analysis As a starting point, we reiterate that ECO intends this contention, with all of its bases, to be viewed collectively as a challenge to the adequacy of the j
Funding Plan. Even 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
.l 1i context, even though we will discuss each basis, or related groups of bases,
]
separately.
Funding Contention, Bases 1, 5,11, and 13 9
a.
(i) ECO's CLAIMS Dese bases are analytically similar in their support for the proposition that SMUD 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 Rnding Plan. Reasons provided by ECO include an alleged increase in SMUD's long-term debt of 8.8% annually (approximately $850 million/ year contrasted with net earnings of $37 million"), 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 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), SMUD's' 1991 load UTr; 217, 219, 224, 303-n4 210
'l forecast, and general nonspecific references to interest rates (supplemented at the prehearing conference with 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 total funds needed (ii) SMUD AND STAIT POSmONS With respect to Basis 1, SMUD and the Staff each rely primarily upon pleading deficiencies. Hey assert in essence that ECO has failed to make any reference to the Funding Plan itself but rather is relying on statements from other sources (notably, SMUD's annual reports) taken out of context. hey add that SMUD's bond rating has in fact gone up over the past few years."
1
%ey claim with respect to Basis 5 that no nexus has been shown between the financial plan and the Conservation and Load Management Program.t* SMUD observes that, contrary to ECO's assertions, the runding Plan makes no reference to the success of the Conservation and Load Management Program, whereas the Staff, acknowledging that ECO's cited basis provides a vague reference to a l
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 i
with an overall financial management plan but asserts that none is required or desired by the Staff. He Staff agrees. They each claim that bond-rating
-I I
agencies perform those reviews for investors and the general public. He Staff also stresses SMUD's inherent rate-setting authority, claiming that such authority "would be more than adequate to compensate for any funding deficiencies."
Finally, SMUD asserts that it does indeed have such a plan, which is on file with j
California regulatory agencies, although never formally submitted to NRC?
(he Staff indicated that it performed an independent review of SMUD financial 1
information prior to issuing its SER 20)
J Finally, with regard to Basi': 13, SMUD and the Staff attack the contention largely for pleading deficiencies in failing to identify the allegedly erroneous j
interest rates or those rates deemed I y ECO to be appropriate. hey each claim j
that the Funding Plan assumes a real we of return (over inflation) of 3.2% and
)
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l 16 Tr,190.
"Tr,199, 222. 225, 226.
88 Tr. 250.
" Tr.305.
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1 that these rates will be evaluated every 5 years. Again, they view the 5-year
'l review as invalidating any claim as to the adequacy of interest rates.
l 1
(iii) DOARD ANALYSIS We agree with SMUD and the Staff that each of these bases for ECO's j
claims includes sune pleading deficiencies. Pleadings, however, need not be
. wchnically 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 the qualifications of ECO's expert on this question, Dr.
A. David Rossin.2' 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 contention. He served as an executive of Commonwealth 1
Edison Company and later as Assistant Secretary of Energy for Nuclear Affairs j
i 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 involycment with, financial matters.22 In any event, collectively, SMUD and the Staff appear to be ignoring the forest for the trees. As the Commission recently observed, although
'n a somewhat different context, a " compartmentalized reading of [ECO's]
pleadings"23 has led to their positions that no legitimate dispute has been set f >rth. Although each of these individual bases may not in itself constitute a
-l 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 I-or 2-year intervals and updated at 5-year intervals cannot legitimately serve as a 24 rationale for not looking at alleged current deficiencies in the Funding Plan.
l For, if that were so, the hearing rights afforded by the Commission's rules and reinforced by CLI-93-3 would be essentially meaningless. We decline to construe the contention rules as mandating or even 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 NRC procedures 25 That NRC might have a right to inspect the documentation of 21 5ct Tr,186-87,189,309 22An reo nuerts (Tr. 310-11), the extent of Dr. Romn's quali6 cations will, of courz. be a* inue in an evidentiary hearing or in conjunction with a nx> tion ror summary disposition.
235cc Cleveland Electric filuminating Co. ribry Nuclear Power Plant. Unit 1), Ct19L21, 38 NRC 87,94 (1993)
Tr. Om 24 25 Tr 347-4R
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such reviews at the facility does not provide any meaningful relief to ECO or its members.26 Sewnd, for similar reasons, the mere circumstance that SMUD has the legal authatuy to set its own rates cannot as a matter of law undercut attempts to
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demonstrate financial weakness 27 Such a construction would also improperly circumscribe the hearing opportunities offered by NRC to demonstrate (as ECO l
seeks to do) practical limitations on the exercise of that legal authority.
Third, it is clear that bases or foundations for each of these segments of the contention are set forth. Not only are discernible issues set forth, they have
'I been explained with sufficient clarity to require reasonable minds to inquire further. Cf Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense l
Council, Inc., 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.
j Fourth, many of the objections advanced by SMUD and the Staff are merely disagreements as to the merits 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. Q 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
_j concededly performed a review of SMUD financial information in reaching its conclusions as to the adequacy of the Funding Plan. Indeed, in a nonadjudicatory memorandum (that was provided to the Board and patties), the NRC technical staff indicates that it is pursuing plans to require financial planning estimates'
' to be submitted earlier than is now the case : Such a financial plan is clearly 2
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.)
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 plani The differences in interest rates alleged in Basis 13 could amount l
26 1nspection of such revised fmancial endmates is not part of the routine inspcrt:on modules at this hme, Tr.
348.-
27 See Tr,193-94.199.
2a Menorandum for the Chairman, NRC. from Janes M Taylor. Exect:tne Direcw for Operations. dated septemler 14,1992, re* Evaluation of Recent Decommissioning Cost E:.timates and the Imr.bcations far Man.gine and Stone ; '; pent Nuclear Nel. transmitted to the Hoard and parties by copy of letter from stewart W. Brown, f4KK. to Mr. Jana R. Sheder, sMUD, dated November 17,1992 (hereinafter. Taylor septemter 14 1992 Memorandum) 233
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to $23 million," if not the $52 million initially asserted by ECO" - both of which are significant in terms of the overall $280 million projected cost cf l
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.
Ihr these reasons, Bases 1,5,11, and 13 are hereby admitted (collectively) as support for the decommissioning funding contention.3' b.
Funding 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 estimatiag costs.
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. Moreover, it relies on Reg. Guide 1.159 at 11,32 as support for the 5-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 adhere to 10 C.F.R. 66 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.
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 asserts; the 5-year period does not stem from a regulation but only from a Regulate y Guide implementing that regulation. The Commission has long accepted conteations challenging the adequacy of Regulatory Guides. See, e.g., GulfStates Utilitre., Co. (River Bend "Tr 569, 30Tr 329.
33 In accepdng basis 1 we are exchaling the allegation concerning "the pnneiple that the trneficiaries of Rancho Seco could pay the cost of decommissioning to the extent possible.
" See Tr. 22122 That nutter is tcyond NRC's jurisdicdon 32 Regulatory Guide 1159, " Assuring the Availatuhty of hmds Ier Decomnussioning Nuclear Reactors"(August 1990). at p.1.15911 ("ot least once every 5 years" (emphasis supphed))
214
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Station, Units I and 2), ALA13-444, 6 NRC 760, 772 (1977). In any event, the Guide itself does not mandate or prescribe a 5-year period - it vierely sets that time period as a maximum. We will thus permit ECO to attempt.
j to establish that a lesser period is appropriate. (Nr similar teasons, we are f
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.
1 l
c.
fimding Contention, Itases 2 and 14 (i) ECO's CLAIMS
.l These bases are related in that they both involve costs related to the proposed I
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 figures 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
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of $80 million by 2008, when funding is to be complete, and asserts that the Ftmding 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?
(ii) SMUD AND STAIF POSITIONS With respect to Basis 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. fund through which it will fund plant decommissioning. Both SMUD and the Staff claim, however, that
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ISFSI costs are not within the scope of the decommissioning rule and are
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33 Nneng Contenmnem 3 Mlet at 1011. citing DAGM/NUC 92498 (Aug. 6,1992).
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A not considered decommissioning expenses but rather are operating expenses addressed in 10 C.F.R. 6 50.54(bb). They cite 10 C.F.R. 5 50.75(c) n.1, which states that decommissioning funding costs "do.iot include the cost of removal and disposal of spent fuel... "33 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 (Jan.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 ns part, the Staff additionally asserts pleading deficiencies, claiming that ECO has not identified an expert who will deal with ISFSI costs or provided a precis of testimony or other evidence or, indeed, even adequately asserted that revised ISFSI costs will exceed the budgeted costs."
With respect to the related Basis 14, SMUD and the Staff each claim that the contention is barred from consideration in this proceeding by 10 C.F.R. 5 50.75(c) n.l. Beyond that, SMUD claims that the $8 million/ year cost alleged by ECO can in fact be derived 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 the ISFSI will not be completed by 1998 (as contemplated by the DP) and that those alternative costs will in fact occur.
(iii) BOARD ANALYSIS At the outset, it is important to note that ECO's specific claims under Basis 2 are clearly focused on the cost of casks.38 ECO questions the propriety of using cost estimates for an original ISFSI (included in the Funding Plan), in circumstances where the original ISFSI design has been withdrawn and a new design not yet submitted. As we observed in our earlier decision, LDP-92-23, j
. 36 NRC 120,136 (1992), SMUD in fact asked the Staff to suspend its safety i
review of the ISFSI pending selection by SMUD of a new cask 'Ihe difference in cost between the original 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 and the Staff appears as footnote 1 to a provision setting forth minimum amounts required to demon-
.l MSMUD Funding Response at 20-21; Staff Funding Response at 12-13. The section is quoted in full at p. 217, infra SMUD Funding Response at 21; Tr. 203. 206.
" Staff Funding Respome ai 13.
38 See Tr. 20912 216
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1 strate reasonable assurance of funds for decommissioning a reactor (10 C.F.R. 6 50.75). It reads as follows:
Amounts are based on activities related to the definition of " Decommission"in i 50.2 of this part[*] and do not include the cost of remamt and disposal of spentfuel or of nonradioactive structures and materials beyrmd shat necessary to terminate the hcense [ emphasis supphed).
ECO construes this provision not to bar consideration of costs of onsite 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,"
On the other hand, to contradict the rather clear language upon which ECO relies, SMUD and the Staff each refer to legislative history which, they claim, demonstrates that the Commission intended to include interim onsite storage in the costs that are barred from consideration. 'Ihe legislative history cited is at best mixed. Only NUREG 1221 would appear to indicate that interim storage, as well as removal and disposal, is included in the regulatory bar.
e And even the Staff (although not SMUD) concedes that the costs of purchasing casks and transporting them from the fuel pool to the onsite ISFSI may not be barred from consideration in this proceeding, although it deems these costs to be insignificant.*
Significantly, NRC's technical staff believes that costs of interim onsite
. storage should be viewed as decommissioning funding costs. In a memorandum to the Chairman of the Commission,. fames R. Taylor, Executive Director for.
Operations, has explicitly stated:
Spent fuel management and storage cost estimates an: increasing, in large part because of the delay in DOtra spent fuel repository availabihty date to the year 2010. CIcarly, utility costs for spentfucI management and storage until DOE takes title are appropriately considered try the NRC ar decommissioning costs. 5recifically, they are relevant to releasing a reactor site for unrestricted use and bear on public health and safety (emphasis supplied).42 Moreover, it notes that nany licensees' estimates in fact inci.de such costs *)
Indeed, SMUD's estimates 5ctMed those costs. They are thus incorporatec into the Funding Plan before us.
In these circumstances, segmentation of the proposed ISFSI costs into another procedural box appears unfair to ECO. It is not even clear that, for proceedings
- 6 50.2 Definitions... Decommisskm means to remove (as a facility) safely from service and reduce residual r Jioactivity to a level that pernuts releaw of the property for unrestricted use and termination of Lceme.
- Tr. 205M 350-51.
di Tr. 207 08, 210. '
42 Taylor September 14.1992Menerandum, supro note 28, at 2.
d3 /d. at 1.
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pursuant to 10 C.F.R. $ 50.54(bb) or 10 C.F.R. Part 72 that arise (as here) from a Pan 50 licensing activity, financial matters could even be considered. See 10 C.F.R. 6 50.33(f). As ECO asserts, the regulatory requirement in 10 C.F.R. 0 50.75 n.1 is far from clear. But even if cenain 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 ISFSt.
In any event, in the ISFSI proceeding to which ECO is being steered for
.i Basis 2, such costs were not in fact under consideration. The ISFSI application explicitly stated:
De District's total cost of constructing the ISFSI and purchasing the number of casks required to place the spent nuclear fuct and control components into dry storage is estimated to be between $13.7 and $15 8 midion, 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 Generating Station" which was submitted as Appendix B to the RSNGS Proposed Decommissioning Plan. Funds for ISFS1 construction and ongoing ISFSI support are included in the current decommissioning funding 4d program for R5NGS.
In other words, if ECO were to have sought to challenge ISFSI costs in the ISFSI proceeding, it would have learned, from the application on file, that those costs were set forth in the underlying documentation for this proceeding. But when it comes to this proceeding to challenge ISFSI costs, it is told that it can only question those costs in 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.
Ibr them 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 be excluded by the regulatory bar of 10 C.F.R. 5 5035(c) n.l. Although ambiguous, that bar appears to cover only " removal and disposal" of spent fuel. Moreover, that the new costs are likely to be comparable to the initial costs, as claimed by i
SMUD,45 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.
i As for Basis 14, that claim does not appear to be an ISFSI claim at all,
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although it has some bearing on those types of costs. It more accurately reflects
- Rancho Seco ISFSI License Apphcation, noticed at $7 Fed Reg.1286 Uan 13,1992), at LA-3. See alm ikt1r 48 sMUD hmding Response at 22.
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potential fuel storage costs that could eventuate if the ISFS! were not timely licensed. It also allegedly represents a substantial sum ($8 million annually, for as many as 10 years) that could materially affect the aLpacy of the Funding Plan. 13ecause its litigability under 10 C.F.R. 550.5@h) (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 Ilasis 14 for litigation.
d.
Funding 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 mis-estimate reflects adversely on SMUD's management competence.
SMUD and the Staff claim that the asserted delay in approval does not affect the validity of the cost estimates, particularly absent any reasons why it she uld.
They further assert the lack of any tusis for the claim that costs are "prenused" on a particular approval date, and the lack of any concrete example of ersts that would be affected. (The 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 basis. Further, we note that ECO does not have " clean hands" with regard to this particular assertion
- for, by initiating both this proceeding and others,it is one of the causes for the delay. Er those reasons, we declire to accept thin basis for litigation.
l e.
Fimding Contention, Basis 6
- This basis - as well as llases 8,9,10, and 12, to be di< r al below - are all analytically similar. They each assert a failure to pros. +, quate funding for certain defined safety measures. We will treat Ilasis 6 - failure to for.d adequate physical and personnel security measures and, in particubir, a fitress-for-duty program and vehicle barriers - separately in view of th igree of emphasis accorded to it by ECO.
SMUD thallenges 13 asis 6 for a variety of reasons. It asserts uat many of the measures disputed by ECO were approved prior to this proceeding and thus are not within the scope of 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 inapplicable to Rancho Seco upon issuance of its 219 I
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possession-only license); and, finally, that to the extent that ECO is generally challenging the security plan, it has presented no real nexus to funding (supported by facts and/or expert 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
-l to the cost that SMUD is in fact allocating to Plant Security." SMUD also l
asserts other pleading defects and concludes that the cost of the one measure that could be applicable (vehicle barriers) would amount to $100,000-200,000 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 j
challenge to the DP and hence untimely. The Staff does not mention vehicle barriers but adds that the terrorism claims are precluded from consideration by 10 C.F.R. 6 50.13. It acknowledges the lack of applicability of the fitness-for-
'j duty regulations 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.
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 Fwufing Contention, Bases 8, 9,10, and 12 (i) ECO's Ct.AtMS As under Basis 6, these bases essentially challenge the Funding Plan for as-seitedly failing adequately to include funding for certain safety-related require-ments. Specifically, they claim lack of cost estimates, or inadequate funding, for (1) measures to identify all onsite areas containing radioactivity and for performing a comprchensive 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 airborne pathway for the release of radioactivity, as well as measures to deal with accident or terrorism scenarios (Basis 9); (3) determination of the radionuclide inventory and levels "Tr, 268.
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in the spent-fuel sludge, as well as technical bases for dose estimates and vari.
ations in the number of filters required (Ba:is 10); and (4) inadequate technical specification bases for the spent fuel pool level and spent fuel pool temperature (Basis 12).
j (ii) SMUD ann NRC STAEP POSITIONS SMUD and the Staff challenge these bases on the grounds that ECO has failed to provide a credible connection between its safety-related claims and the adequacy of the Ibnding Plan and, accordingly, that these bases are untimely 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)."
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, l
noting that ECO has mischaracterized the documents that it cites and has not j
referenced other pertinent portions of the licensing documentation. SMUD states j
with regard to Basis 8 that, contrary to ECO's claim, there are no unidentified contaminated areas on site." The Staff adds with respect 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."
SMUD additionally notes with respect to Basis 10 that the cost implications I
for filters are inconsequential inasmuch as they cost only $55 each (1988 dollars) and only about 18 are required, and that they accordingly can have no material effect on the adequacy of the Funding Plan." With regard to Basis 12, SMUD refers to its cost estimates that in fact include spent fuel management costs and also claims that such costs are beyond the scope of the proceeding.si (iii) BOARD ANALYSIS None of these bases appear to raise significant issues with regard to funding.
Indeed, there is little if any connection to funding. (The 555 filters have some relationship to funding, but at best it is trivial.) Instead, each of the bases appears to be a "back-door approach" (to use the Staff terminology) to litigating "Stati Nnding Respone at 20 "SMUD Nn&ng Respone at 37; Tr. 273.
" staff Nnding Respon.w at 18.
"SMUD Nnang Responw at 42.
j II M at 44.
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an aspect of the DP. ECO essentially concedes this to be so.52 As such, they are untimely. ECO has made no 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-93-3."
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. 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 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 bases.
4.
Conclusion on Funding Contention For the reasons outlined herein, we are accepting for litigation ECO's funding contention, based on reasons outlined in Bases 1, 5,11, and 13 (considered collectively), and Bases 2 and 14 (considered collectively). We will permit the remedy sought by Basis 4 to be sought in 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 Contention ECO's Proposed Amended LOOP Contention reads as follows:
SMUD's considerations of the IDOP issues in both its Supplement to Application's Environrnental Report-Post Operating License Stage (" Supplement") at Paragraph 5.3 and its proposed Decommissioning Plan ("PDP") at Paragraph 3.4 (transmined by AGM/NUC 91-081 (May 20,1991)) (a) fail to comply with 10 CFR !!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 ca!culations furnished ECO by SMUD in accordance with i
the Commission's Order raising questions [] not only of inadequate NEPA disclosure but also questions of SMUD's integrity 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 tOOP and inadequate preparation to cope with tDOP presents l
an unacceptable risk to the radiological health and safety of the public.M 52Tr. 285,317-21.
U Tr. 273,77, 283-84,28s-86.
M loop Contention at 12.
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l 2.
SMUD and Staff Positions SMUD's response claims that ECO's contention raises untimely issues un-related to the discussion af 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 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 CL1-93-3 did not provide for a general 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, supra, it stated:
ECO's amtention that there is no reference to a particularized study to allow independent ven6 cation of the conclusion that the probability of a LOOP is less than once in 20 years is admitted. SMtJD is ordered to provide ECO with the basis for its conclusion regarding the frequency of a tDOP. ECO will then be permitted 14 days from service of SMtJD's submittal in whict to file an amended contention, if it chooses taking into consideration the information providxi by the Licensee in accordance with this order.["]
i
. 1 When filing this amended contention. ECO need not satisfy the criteria for a late-filed contention.[57]
eee e ECO may file an anended contention related to the tDOP ir. sue as affected by SMUD's submittal with the Licensing Board [58]
Thereafter, in ruling on SMUD's motion for reconsideration of CLI-93-3, the Commission provided this guidance:
Ahhough we have already admitted the original contention as we decided in CL1-93-3.
we leave for the Licensing Board to detertrinc if the further anrndment to the contention 85 5taff IDoP Response at 7.
$637 NRC at 146.
571d. at 146 n.28 88 1d. at 154, i
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b is admis.sible and to determine if a genuine issue of material fact remains regarding the probability of a IJX)P, 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 infornution provided regarding the probabihty of a LOOP, ECO must meet the criteria for late-filed contentions [5')
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 anendment, based on the newly provided analysis,is not subject to the late-filed criteria contained in 10 C,F.R.
62.714(at flowever, any such amendment must meet the criteria for adrnissibility in 10 C.F.R. I 2.714(b) and (d),
To the extent that ECO's amended contention may raise new issues that were not dependent on the newly provided analysis of the probability of a LOOP, these new issues are subject to the late-filed criteria in 10 C.F.R. 6 2.714(a)(i)-(v)[*]
ECO filed its amended contention in a timely manner, subsequent to SMUD's filing of its Commission-ordered information on LOOP probability calcula-tions. '
4.
Analysis ECO provides an eleven-point explanation of its basis for the proposed amended contention. We deal with each of these bases consecutively.
a.
LOOP Contention, Basis 1 (i) ECO's CLAIM ECO contends that SMUD in the DP and 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 minimum need for restoration for power at variously 6 days or 17.7 days, ECO contends that SMUD provides no documentation 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 "CLi-9312, supra, 37 NRC at 360 n.8.
"(LI-93-19, supra. 38 NRC at 82 (emphasis added).
'ISMUD provided ECo with information on SMUlys calculation of IMP probabihty by leuer dated March 18,1993,from David R tewis. Exi, to James P. McGranery, Jr., Esq (hereinafwr Lewis lettert 224 w
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Calculation No. Z-EDS-E0817'2 requires a coping period of not more than 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />."
(ii) SMUD POSITION SMUD responds that ECO's facts 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 reactur shut down for the past 4 years. In addition, SMUD challenges ECO's facts concerning a coping 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.
~i SMUD also challenges ECO's facts concerning the calculations and docu-mentation to support the assertions concerning the need to restore power. SMUD asserts that all the information needed to calculate the time needed to boil the spent fuel pool water are contained in the DP. SMUD assens that ECO makes no showing that calculations required for the Station Blackout Rule for an op-erating reactor are necessary for Rancho Seco."
(iii) STAfT POSITION The Staff claims this basis is beyond that authorized by CL1-93-3 in that it discusses coping with a LOOP rather than the probability of a LOOP. He Staff argues that ECO has not described any dispute with SMUD's LOOP calculations."
(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 frequency or probability of a LOOP. ECO's Basis I raises issues of coping with a LOOP" i.e., restoration of power and taking conective action to ensure the safety of the plant. Dese actions were discussed in the DP -
62.cwis letter. Attadment 1. Endosure E.
1 "3 ooP Contention at 4 t
"SMUD LIX)P Response m 8-12.
"Starr LDoP Respomeir 13.
66 tDoP Contention m 4 225
- -.m
l
. at pages 3-34 and 3-35 and in SMUD's Environmental Report (ER) at pages
'l 5-6 and 7, information available to ECO when it filed its original contentions.
j ECO argues" that the Commission in CLI-93-3 would allow contentions to be filed without fulfilling the late-filed criteria of 10 C.F.R. 6 2.714(a) since documents recently supplied by SMUD were not available for review by ECO."
{
ECO also argues that safety issues of a LOOP are dependent both on probability j
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 issue 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 occur. The issue of coping with the consequences of a LOOP 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. He Board considers that to raise issues of coping, ECO must justify these issues in accordance with 10 C.F.R. (2.714(a)(i)-(v). He Board considers this basis, and all the following bases associated with coping with the consequences of a LOOP, to require justification for being late-filed.
Regardless of the tirneliness of this basis, SMUD complied with the Com-mission order to supply its calculation.of the frequency of a LOOP It did so by providing its calculations for complying with the Station Blackout Rule,10 C.F.R. 650.63, applicable to Rancho Seco as an operating plant." ECO takes information supplied as a result of a Commission Order to divulge how SMUD determined thefrequency of a LOOP and in this basis challenges SMUD's abil-ity 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 statements in the DP and ER concerning the ability cf SMUD to cope with a station blackout during decom-missioning are not adequate, j
U Tr. 40041,427-32.
" At the prehearing conference, LCo introduced as a reference DAGMEUC 93 079 dated Apnl 1.1993. a document supphed on the record by letter from Thomas A. Baxter to sanarl J. Chilk, dated April 6.1993 Crr. 362). This correspondence, concertsng Permaneraly Defueled Technical Specifications references carber correspondence on the same subject, DAGM/NUC 92-233 dated September 23. 1992, provided ECO by letter from David R. lewis to Janes P. hicGranery, dated March 9,1993. ECo did not establish the relevance of these documents to the LDoP isme in its pleadings or at the preheanng conference.
" lewis later. Attachnent 1. Enclorure E.
226 J
l I
I 1
~
i
%e fact that the actual calculation for coping with a LOOP during decom.
missioning is not spelled out (even though relevant and in fact not provided) is j
not material since information necessary to calculate the time available before fuel is uncovered is available in the DP. Information concerning the need for i
corrective action in the event of boiloff of spent fuel pool water is available in
]
Chapter 3 of the DP and should have been challenged in ECO's original con-l tentions. ECO has not met the pleading requirements of 10 C.F.R. 5 2.714(a),
(b), and (d) with this basis since it has not supplied the facts necessary to es-tablish 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 should not be allowed to use a 0.95 i
relidlity factor for its emergency diesel generators in its coping calculations since m.intenance on those generators is being reduced, if not eliminated. ECO j
referenc:s an April 1992 document served on the parties in July 1992."
i (ii) SMUD POSITION SMUD states that the 0.95 reliability factor was used in the calculation for the Station Blxkout Rule for Rancho 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."
l 1
(iii) STAFF POSITION The Staff claims this basis does not conform to the pleading requirements of 10 C.F.R. { 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 j
license."
sMUD liner DAGM/NUC 92 086. Response to the Request for Additional Information in Support or the M
Rancho seco Decommissioning and Associated Environmental Report. dated April 15, 1992 forwarded to the parties tiy letter from Thomas A. Baxter dated July l$ 1992 (sMUD Addibonal Information).
7' SMUD tDOP Response at 12,13.
Ustaff tiX)P Response at 14 227
.m r
.i i
(iv) lioARD 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 generators 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 that has been shut down for over 4 years. Table 3-21 of the DP provides time periods for the spent fuel pool at the shutdown 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. 9 2.714(b)(2) to show in sufficient detail that a genuine dispute exists on a material issue oflaw 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 10 C.F.R. Q 2.714(a) for coping concerns. It has not even attempted to do so. Accordingly, the Board does not accept this basis as support for ECO's amended contention.
c.
LOOP Contention, Basis 3 i
(i) ECO's CLAIM i
in this basis, ECO references a September 23, 1992 document concerning Permanently Defueled Technical Specification Revisions.74 ECO claims that 3
if spent fuel cooling is lost due to the unavailability of electricity, a spent fuel /radwaste area exhaust fan, which SMUD takes credit for operation, will not be running.75 (ii) SMUD PosmON SMUD asserts that the analysis provided in the September 23, 1993 letter is irrelevant to the LOOP. The letter justifies climinating a prior commitment 73 sM!1D Atktsti(mal inrormation at DP-38.
7'5cc txtter from L Shelter to NRC. re: Revision to Permanently Defueled Technical Specihcauon Hases (DAGM/NUC 92-233 dated september 23,1992h prodded by txtier from David R. Lewin to Jmnes P, McGranery.
Je dated Meretr9.1993 (PDTS Reviwd nasest
' I:Co Propowd Contention at 5.
228 l
L i
to put a train of the Decay lleat Removal System into service if the primary spent fuel cooling system is inoperable. 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 that its Decommissioning LOOP 76 analysis assumed no evaporative or ambient heat loss prior to boiling
- (iii) STAFF PostTION The Staff's position is that this basis does not address the Licensee's calculations and methodologies for the determination of the frequency of a LOOP and, therefore, must be rejected.77 (iv) BOARD ANALYSIS This basis raises another coping concern. The board does not agree with ECO's reading of 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
.l LOOP and ECO does not challenge the analysis on its merits. Although SMUD's analysis addresses spent fue cooling, the analysis is not relevant to the LOOP inasmuch as SMUD has shown that it has not included evaporative losses as part of its calculation of coping with a LOOP.7s As with Basis 1, ECO has the responsibility to meet the late. filed requirements of 10 C.F.R. 5 2.714(a) for coping concerns. It has not donc so. For each of these reasons, the Board does not accept this basis as support for ECO's proposed amended contention.
l d.
LOOP Contention, Basis 4 (i) ECO's BASIS
,.j in this basis, ECO claims that SMUD impermissibly igno es ne impact of a LOOP on plant security systems, and ignores the issue of rehabilJy of battery-powered backup for these systems during the perMd of cop ng with a LOOP.79 7'DP at 135; SMUD Loop Resrome at IF15.
77 Staff LDoP Respome at 14.
78 DP at 135.
"LDoP comention at 5.
229 i
i
.~
.i 5
(ii) SMUD POSITION _
SMUD asserts that ECO provides no basis for its assertion of possible unreliability of battery backup. In pJdition, SMUD states that this basis is a challenge to the Security Plan appraved for decomraissioning on July 25,1991 by License Amendment No.116?
(iii) STAIT PosmON Staff argues that this is an impermissible expansion of the issue authorized by CLI-93-3. It claims that this basis on security systems has nothing to do with the probability of a LOOP; does not conform to 10 C.F.R. Q 2.714(b)(2);
and is not permitted to be raised by CLI.93-3.88 (iv) BOARD ANALYSIS
'i This basis raises a coping concern. As with Basis 1, the Board considers
'l 1
that coping concerns must meet the late-filed requirements of 10 C.F.R. 6 2.714.
ECO does not meet those requirements with this basis.. Challenges now to the security plan are untimely. At the prehearing conference, ECO referenced SMUD letter DAGM/NUC 93-079, dated April 1,1993, as not including information concerning security systems 82 This letter concerns changes to Post Defueling Technical Specifications and is not relevant to the LOOP issue or to j
a security issue.83 In addition, ECO provides no facts or expert opinion as a
- l technical basis for challenging the reliability of the battery-powered backup of the plant security systems. 'Ihe Board declines to accept this basis as support for ECO's proposed amended contention.
e.
IDOP Contention, Basis S (i) ECO's BASIS j
In this basis, ECO claims that SMUD impermissibly ignores the occasion of J OGP from sabotage.84
'l so MUD LDor Respome at 15.
S at Staff LOOP Respome at 15.
R2Tr. 407.
83 See note 67.
84 LDoP Contenoon at 1 1
23Q
-1 i
~
i i
m._,
=
.;-.. l
(ii) SMUD POSITION r
SMUD claims that ECO has pointed to no requirement to valuate LOOP caused by sabotage. In 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 suppon for its 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."
l (iii) STAFF POSITION The Staff asserts that 10 C.F.R. 9 50.13 does not require design features to prote:t against sabotage. In addition, it is not an isste permitted to be raised by CLI-93-3."
(iv) BOARD ANALYSIS This basis concerns the frequency of a LOOP and hence was timely filed.
Ilowever, 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 contention. Given the hypothetical situation tha' sabotage 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 ensure that the spent fuel
]
pool does not become uncovered. Although ECO has challenged this coping i
period, for reasons given in our other analyses, we have not accepted that challenge.
We reject this basis both because of its inconsistency with 10 C.F.R. 6 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.
"SMUD tDOP Resymse at 15.
" Staff tDoP Respmse at 15.
231
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 th 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 (mph) wind, the SMUD calculations indicate that the frequency of such winds is greater than 1
once in 20 years, namely, every 18.2 years. ECO references the DP, ER, and recently supplied 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 f
every occurrence of high winds will invariably cause a LOOP at Rancho Seco,
)
and that ECO fails to discuss why SMUD's calculations or the methodology in Regulatory Guide 1.155 are not correct. SMUD points out that, using the j
calculation accepted by the Staff, the probability of severe winds with velocities j
I between 75 and 124 mph causing a LOOP is about once in 1500 years.88 f
(iii) STAIT 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 75-mph winds every 18.5 years."
-)
(iv) BOARD ANAt.YSIS This is a timely basis. Ho.vever, our reading of the record indicates that SMUD's claim that the probability of a LOOP is less than once in 20 years is clearly unsuppor'ed. Both the DP, at 3-34, and the ER,15.3.1.2, indicate that the probability of a LOOP evaluated in accordance with the guidelines of Regulatory Guide 1.155 is less than once in 20 years. The calculations furnished to ECO" indicate that the approximate return period for a 75-mph wind is 18.2 years. Using this information and the methodologies of Regulatory Guide 1.155, SMUD calculated a probability of a LOOP based on severe weather at 1.2 E-3."
"I trwis letter. Attactmwnt 1, Enclosure E, tDoP Contention at 5,6.
sa SMUD IDoP Response at 1617.
" staff (OOP Respome at 15-16.
"Irwis letter, Attahnrnt 1, Enckwure E.
Htrwis Iznct, Attachment 1. Encknure E. Appendit A, page 6 of 24.
232
' ECO does not provide data, expert opinion, or other sources to counter the
-information extant in the record. It provides no information challenging the i
calculation that winds greater than 75 mph will occur at a frequency of once every 18.2 years. Nor does ECO provide facts, opinion, or other sources that would lead us to believe that, each time a wind blew greater than 75 mph, a LOOP would occur at Rancho Seco. Thus, ECO has not shown that a genuine dispute exists with the Licensee on a material issue of law or fact, as required by 10 C.F.R. 5 2.714(b). 'Ihe lloard concludes that this basis does not support ECO's proposed contention.
g.
LOOP Contention, Basis 7 (i) ECO's Ct. AIM ECO claims that SMUD's conclusory analyses are also technically inadequate since they fail to consider loss of coolant during LOOP due to mechanisms other than evaporation, i.e., accidental or intentional (insider and outsider threat) draining of the spent fuel pooly2 (ii) SMUD PosmoN SMUD asserts that ECO has not pointed to a requirement that it analyze the simultaneous loss of coolant and the occurrence of a LOOP. SMUD claims 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 23-foot level, approximately 9 feet above the top of the fuel assemblies, in addition, ECO does not discuss the expected consequences of such an action?2 (iii) STAIF PostrioN The Staff position is that this basis is not permitted by CLI-93-3, and 10 C.F.R. $ 50.13 provides that design features to pmtect against sabotage l
are not required. In addition, the pool design makes the accidental drainage j
impossible "
- I l
1 l
92 )DOP Contennon at 6 1
'3 SMUD 100P Respone at 18-19.
"Starf IDoP Respome at 16.
)
233
,L..
s 4
~-
(iv) BOARD ANALYSIS This basis raises another coping concern. ECO clarified this basis at the Prehearing Conference, offering that the simultaneous loss of coolant and a LOOP could be occasioned by an earthquake." llowever, ECO did not provide facts, opinion, or other souices 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 he evaluated."
In addition, as with Basis 1, the Board considers issues associated with coping to require compliance with the late-filed criteria of 10 C.F.R. 6 2.714(a). ECO has not addressed the relevant factors.
Finally ECO has not discussed why this basis is material to the decom-missioning of Rancho Seco. SMUD asserts that fuel that has not been in an operating reactor for over 3 years can be air cooled." Since Rancho Seco fuel has cooled since 1989, ECO fails to explain why this concern is material. The Board considers this basis untimely, inconsistent with regulatory requirements, and not material. We therefore do not admit it in support of ECO's proposed amended contention.
h.
LOOP Contention. Basis 3 (i) ECO's CLAIM ECO maintains that SMUD fails to address adverse thermal and radioactive conditions and the habitability requirements for all areas where operator access may be required to take compensating measures in the event of loss of water from the spent fuel pool."
(ii) SMUD POStrlON
'Ihe Licensee asserts that this basis is inr.: curate. SMUD claims that both the DP and ER analyze the amount of time necessary to take corrective action to maintain the dose rate at the surface of the spent fuel pool less than 2.5 millirem "Tr. 426
- See racific Gar and Electric Ca (thablo Canyon Nuclear Power Plant. Units I and 2). ALAH 880. 26 NRC.
449,458 39 (19)l7), rev' dim mher grounds sub nom Sierra Club v. NRC,862 F2d 222 (9th Cir.1988)(" Accidents tiua contemplate ' sequences of postulated successive railure and engineered sarety features" are variously ferned
'beyond desigrrbasis.' ' Class 9,' or 'severc' accidenis
. The Crimmission considers such accidenta 'to be so low in probainhty as not to require 6pecific adhtional provisions in the design of a reactor facility.'")
"$ MUD 1DoP Resporac at 19 a11 SMUD points out that NURI.G 13$3. Regulatory Analysis ror the Resoluuon of Generic issue 82. "Beyond Design nasis Accidents in Spent ruel Pimis," denxmstrates that spent fuel after 3 years of storage can be air corded with no risk or a Zircoloy claddmg1tre "lDoP Contention at 6.
4 234 n.
per hour. ECO does not allege any facts, opinions, or other sources that would indicate the need for further analysis."
l (iii) STAlf POSITION
%e Staff position is that ECO gives no basis for concluding that habitability would be affected by a LOOP to prevent protective measures from being taken to resupply water to the spent fuel pool before exposure of the fuel.'"
1 (iv) BOARD ANAt.YSIS
)
This basis raises a coping concern. At the prehearing conference, ECO
')
clarified its challenge to SMUD's capability to cope with an uncovered spent j
fuel pool. ECO claims that SMUD's plan to use a fire hose and the diesel.
1 powered fire pump to add water is an unexamined issue."" In the DP at 3 34, 3 35, and 3-70, SMUD describes the time necessary to take corrective action and claims that an alternate power supply can be made available in the time necessary to take action to restore spent fuel pool cooling. In addition, the DP at 2-64 indicates that the fire protection system will be functional during j
decommissioning. ECO has had sufficient notice at the decommissioning plan i
stage to file a timely contention on the issue of habitability. As we hold in our analysis of Basis 1 above, issues of coping must meet the late-filed criteria of
)
10 C.F.R. 6 2.714 and ECO fails to do this.
j in addition, ECO has not presented any facts, opinions, or other sources to i
describe why the corrective actions in 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 does not support ECO's proposed amended contention.
- i. LOOP Contention, Basis 9 (i) ECO's CLAIM ECO claims that SMUD's analysis also fails in omitting reference to the significance of hot weather as a serious compounding factor in the event ofloss of electricity.'M "SMUD tDOP Respome at 20.
1*5taff LDoP Responw at 1617,
"" Tr 441 IULDoP Comention at 6.
235
(ii) SMUD POSITION SMUD asserts that ECO does not explain the significance of hot weather or provide support 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. *
(iii) STArF POSITION Staff considers that 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.'"
(iv) BOARD 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
- We believe that 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.'" Using the information in the DP, at Table 3-21, the Board considers that 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 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 calculations was supplied with the DP and ER. If ECO had 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 material to the proposed amended contention and, in any event, untimely without adequate justification.
'U sMUD IDOP Respone at 20.
1* Stafr LDoP Response at 17_
IMTr. 44849.
3"Tr. 457 58 236 L
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).
LOOP Contention, Basis 10 (i) ECO's CLAIM ECO's loth basis concludes that SMUD's presentation on the LOOP issue is totally inadequate under both the National Environmental Policy Act (NEPA) -
and the Atomic Energy Act to allow the NRC Staff and the public to assess independently the adequacy of SMUD's provision against LOOP and the con-sequences of LOOP.
(ii) BOARD ANALYSIS At the prehearing conference, ECO agreed with the Board that this basis was nothing more than a summary of all the other bases."" 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
,j the fuel cladding could not significantly exceed 212 F in the event of loss of j
coolant."*
(ii) SMUD POsnlON 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 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 fuel"*
Tr. 463 "8 LDoP Contention at 7.
"*SMUD tDoP Respaw at 2123.
237 I
i
. iii) STAn; POSITION
(
'Ihe 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 its claim that such temperatures are relevant to the frequency of a LOOP or that SMUD would not be able to cope with the consequences."8 (iv) BOARD ANALYSIS
'Ihis 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.'" 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 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 than 212 F. This issue could have been raised cadier. 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. f 2.714(a), and ECO has failed to do that, r
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.
Concimion on LOOP Contention Based o1 our analysis of each of ECO's bases, individually and collectively, we concludt that ECO's Proposed Amended LOOP Contention does not raise an issue of n aterial 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 CL193-3 without appropriately pleading facts, expert opinion, or providing other support for its allegations that there are material "0 5taff thoP Response at 18.
I" Tr. 466-68.
238 j
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~=-. - - -
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"1.:
issues of health and safety, or violations of NEPA. For all the reasons discussed
. above, we deny admission of ECO's Proposed Amended LOOP Contention.
D. ' ECO's Admitted LOOP Contention and SMUD's Summary Disposition Motion I.
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 LOOP is less than once in 20 years was admitted by the Commission in CL1-93-3, supra.
37 NRC at 146. See also CLI-93-19, supra. The Commission ordered SMUD to provide ECO with the basis for SMUD's determination in its ER that the probability of a LOOP at Rancho Seco is less than once in 20 years and permitted ECO to file an amended contention related to the LOOP issue as affected by the SMUD submittal.
As ordered, SMUD provided ECO with the appropriate information con-cerning the probability of a LOOP. As discussed above, ECO timely filed a proposed amended contention. SMUD now seeks summary disposition pursuant
.I to 10 C.F.R. {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. Q 2349. 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 CF.R. (2.7491 specifies that summary disposition may be granted only if the filings ll
.I 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 pany is entitled to a j
1 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. Ilowever, if the movant makes a proper showing for summary disposition, and if the party opposing the motion does
(
. mx show that a genuine issue of material fact exists, the Board may summarily dispose of all arguments on the basts of pleadmgs.
]
To preclude sumrnary disposition, when the proponent has net its burden. the party opposing the motion may not rest upon " mere allegations or denials," but must set forth
-l specific facts showing that there is a genuine issue. Bare assertions or general demals are not suflicient. Although the opposing party does not have to show that it would prevail on
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the issues. it must at least demonstrate that there is a genuine factual issue to be tned. The 239 1
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opposing party must controver any material fact properly set out in the statement of material facts that accompanies a summ.vy dipposition motion or that fact will be deened admitted.
l-Moreover, when the movant has satisfied its initial burden and has supported its motion by affidavit, the opposing party ruust either proffer n butting evidence or submit an affidavit explaining why it is impractical to do so. If the presiding officer determines from affidavits filed bv 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.
Advanced Medical Systems, Inc., CLI-93-22, 38 NRC 98,102-03 (1993) (cita-I tions omitted), reconsideration denied, CLI-93-24,38 NRC 187 (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 March 18, 1993"2 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 relied on to calculate the LOOP frequency and it is now entitled to a decision on this matter.
4.
ECO's Position ECO responds") that even though 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 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-mph wind and that such winds occur once every 18.2 years. 'lherefore, ECO argues, a LOOP can occur at a frequency greater than once in each 20 years.
5.
Staff Position
'Ihe Staff supports the SMUD's motion and points out that the Commission, in both CLI-93-3, 37 NRC at 146, and in a clarification Memorandum and Order, CLI-93-19,38 NRC at 82, emphasizes that this contention is limited to the particularized study of the LOOP frequency.
Lewis litter. Jupra note 61, 113ECCTs Answer in oppoution to SMUD's Mation for Sumnury4tnpnsition of ECo's Onginal Loop Contention, dated september 27.1993, at 2,1 240 1
f
i 6.
Iloard 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 less than
. one each 20 years. Specifically, in the Lewis Letter, Attachment 1, at 4, 5, SMUD's calculation of the expectation of a LOOP caused by severe weather is in the range of I x 10-3 to 3.3 x 10-2 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 decision 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.
l E,
Environmental (EA) and Safety (SER) Contentions In its EA, the Staff concluded that the environmental impacts of the proposed decommissioning are either bounded by the conditions evaluated in NUREG.
0586"' or the FES"5 or are in compliance with 10 C.F.R. Part 50, Appendix I, setting forth annual design objectives for offsite releases, or 10 C.F.R. Part
- 20. Tims the Staff concluded that there are no significant environmental impacts associated with the proposed decommissioning and the proposed action will not have a significant effect on the quality of the human environment.
Pursuant to 10 C.F.R. 6 51.31, the Staff then determined not to issue a separate environmental impact statement."6 'Ite Notice of Issuance of Environmental Assessment and the Finding as No Significant Impact (FONSI) were issued simultaneously with the EA and the Staff Safety Evaluation (SER)"7 on June 16, 1993. On July 12, 1993, ECO_ filed contentions related to tba Staff EA, FONS1, and SER."8 %e contentions and bases as filed are as follows:
"4U.S. Nuclear Regulmory Conunission, " Final Generic Environmental Impact Statement on deconunissioning of nuclear facihties." NUREG-0586. August 1988.
"5" Final Environmental statement Related to the operation of Rancho Seco Nuclear Generating Station Unit 1, Sacranwnto Municipal Utihty Distnet. Docket No. N312." U.S Atonuc fanergy Comnussion. March 1973, n6EA al 23.
"75afety Evaluation by the Nuclear Regulatory Commission Related to the order Approving the Deconunissioning Plan and Authorizing Decommissioning of Rancho Seco Nuclear station, Unit i Sacramento Municipal District Docket No. 9312 "8ECo*a Contentions on the staff Environmenta! Assessment Findings of No Ngmhennt impact and Safety Evaluation 241
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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. 9 4321 et seq. (1988), the regulations and other guidance issued by the Council on Environmental Quality ("CEQ") including, but not limited to,40 CFR Pads 1500-17 and the CEQ 40 n.ost-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 Piut 51 (1993).
a.
Basis 1 In preparing its environmental assessment, the NRC staff is required to consult rsleyant agencies and persons. See 10 CFR 6 51.30(a)(2). The EA at i 6.0 indicates only that the " staff consulted with the State of California regarding the environmental impact of the proposed action. This constitutes inadequate compliance with the NRC's own regulations because (a) there is no indication what the State of California's views were nor any reference to-g where those views may be found, (b) there is no seference to any consultation with any other relevant authorities such as the Council on Environmental Quahty or the U.S. Department of Energy, both of which had previously expressed strong views as to the adverse environnental consequences of decommissioning Rancho Seco and the need for an environmental impact statement (EIS).
b.
Basis 2 The Staff document violates 10 CFR i 51.119 (1993) because it does not indicate whether it is a draft or final finding at EA 17.0.
c.
Basis 3 The Staff document violates 10 CFR 9 51.33(b) (1993) because it does not consider whether circumstances exist requiring the publication of a draft K)NSI.
d.
Basis 4 If the FONSI intended to be final. it violates 10 CFR 9 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 significant impact.
e.
Basis S Ifit is intended to be a draft FONSI. the Staff document violates 10 CFR 5 51.119(a) because it does not include a request for comments, specify where comments should be submitted, or when the comment period expires.
242
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y --
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- f. - Basis 6 he EA's consideration (at para. 5.0) of postulated accidents is totally inadequate twcause it does not consider non-radiological accidents during the decommissioning process.
g.
Basis 7 EA's consideration of the radiological impacts of decommissioning at para. 3.2 is without suf6cient factual basis because there is not an engineering analysis of an independent spent fuel storage facihty on which to base any of the conclusions with respect to nor mal emissions or accidental enussions.
h.
Basis 8 4
De EA's non-radiological impact hndings are inadequate because there is no discussion of the activities anticipated to be performed by SMUD. There is no discussion, much less
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quali6 cation, of the environrnental, including economic and socioeconomic impacts of the i
proposed action and there is no discussion of the changes that have taken place in the 20
)
years stnce the issuance of the Staff Reference 18.
- i. Basis 9 i
The EA errs in 6nding that the only relevant demographic and socioeconomic effects that are selevant are within a 13 mile radius of Rancho Seco. See EA at para. 3.13. 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 poesible future use.
2.
The Safety Emluation Contention ECO's safety evaluation contention reads as follows:
Similarly, ECO contends that the NRC Staff lacks a suf6cient 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 Ibel Storage facility are unknown at this time.
243
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I 3.
SMUD and Staff Positions L
Licensee"' and Staff" both state that none of ECO's proffered contentions on the Environmental Assessment, FONSI, or the Safety Evaluation are admissi-ble, Staff would have the Board deny Bases 6 through 10 and the SER contention because ECO has failed to show that a balancing of the five factors applicable to j
late-filing favors admission. As to Bases I through 5, the Staff, while conceding.
1 that ECO's filing was timely (in that it challenges matters that are relevant only to the Staff EA), nevertheless would deny the bases and associated contention because of failure to meet the 10 C.F.R. Q 2.714 pleading 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 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 even 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 EA is wrong nor is there any identification 1
I
- of specific information that might alter the conclusions in the EA. SMUD states that half of ECO's contentions (Bases I through 5) focus on procedural minutiae and the remainder are vague and unsupported assertions that more information is needed without any explanation as to why.
1.
Board Analysis a.
EA Contention Bases 1 through 5 These bases allege that the Staff violated various portions of its own regula-tions. The Licensee and Staff describe these allegations as procedural minutiae and/or issues of no consequence. The board generally agrees.
As to Basis 1, NRC regulations pertaining to environmental assessments do not require consultation. The regulations do require "a list of agencies and persons consulted, and identification of sources used."l28 The Staff did this.i22 The requirements for the issuance of an EA and FONSI are set forth clearly in the regulations (10 C.F.R. El51.30-51.35) and are considerably different from the requirements for an Environmental Impact Statement (EIS). See 10 C.F.P.
651.70 et seq.
O'SMuD EA Respame.
120 staff EA Respome.
10 CER 6 5130(a)(2)-
121 EA at 21
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n2 244 I
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We find that the Staff complied with applicable regulations by its listing in the EA of agencies consulted. Nonetheless, we agree with ECO that, beyond the mere list, an EA should also include a brief statement of the consulted agencies
- l 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 EA. It would enhance the public's awareness of the details 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 1
l-and, if otherwise appropriate, to propose appropriate amendments to the Rules to accommodate such a purpose. We do not propose that any consultation be J
required - only that, if undertaken, its results be published.
De remaining Bases 2 through 5 assign violations to various Staff actions or I
L 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. 551.34(b). The Staff might have erred in failing to identify the EA clearly as a draft or final as called for in 10 C.F.R. 6 51.119. If that indeed be error, however, it was clearly harmless: the only thing lacking was the word " final." There was no request for c.omments and no mention of a comment period, as would be customary in a draft docurnent.
l It had all the necessary earmarks of a final document except for the title. As to the draft or final FONSI, the Board attaches little signincance to whether I
the FONSI is identified as a proposed or final FONSI, either of which can be modified by the Board following a hearing or by the Commission.
I b.
EA Contention Basis 6 ECO alleges that the EA is inadequate because it does not consider nonra-diological accidents during the 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 Costs of Decommissioning a Reference Pressurized j
Water Reactor Power Station," NUREG/CR-0130, June 1978, which formed the basis for the GEIS chapter on PWRs. 23
- In NUREG/CR-0130, the Staff con-sidered a number of nonradiological accidents and the risk was determined to be insignificant.m SMUD's ER referenced this evaluation and stated that the i
mCEIS at 4-1.
- EA at 21.
- NUREGCR-1030. Vol 1. ll112 3 ("Nonradiological Safety Evaluation").1i3.2 C" safety Evaluation of Construction or Industrial Accidenu"). and 114.3 ("Nonradiological Transportation Safety Evaluation").
245 t
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accident potential at Rancho Seco was within the NUREG/CR-0130 considera-i E
tions. 26 f
Additionally, ECO did not specify any accident that 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. 02.714. A contention that simply alleges that some matter ought to be considered does not provide the basis for an admissible contention.i27 Dasis 6 accordingly is denied.
c.
EA Contention Basis 7 ECO alleges that the EA's consideration of radiological impacts is without j
sufficient basis because there is no engineering analysis of an independent spent fuel storage installation (ISFSI) on which to base conclusions with 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 include the removal and disposal of spent fuel, which are considered to be operational activities. 53 Fed. Reg.
at 24,019. SMUD filed a request for a Materials License for the ISFS! 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 13,1992.'2" The Fcderal Register notice provided an opportunity for a hearing on request. The matters at issue clearly included the environmental and safety issues that ECO see' s to
.I 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 anti safety issues, the Board agrees. (As for funding matters, as explained earlier, different considerations apply.)
f During the prehearing conference, ECO. for tcc drst 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 decommissioning plan is i
- r.R at 5-8.
127Verm<mt ranAce Nuclear hver Corp. v NRDC. 435 U.s $19. 553-54 (1978) f 12n 57 red. Reg. 1286 (1992).
246 i
I an illegal segmentation of the environmental considerations and the radiological considerations.129 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 not. The Licensee also mentions that ECO was not precluded from raising legitimate issues in the ISFSI proceeding but chose not to do so.*
r SMUD also argues that the ISFSI is not an integral part of the DP, stating that if SMUD had 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 needed to be addressed and called into question the EA,-
its obligation was to identify that impact and provide a basis supported by facts and/or expert opinion. ECO has failed to do so.
The Board firds that ECO's raising the issue of illegal segmentation of im-pacts 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 conclu-sions cc.ncendr.;ine decommissioning of Rancho Seco. Further, ECO's raising the a!!egation at the prehearing conference was clearly untimely, without any attempt to justify the untimeliness. Absent any specification of potential impact, the allegation of illegal segmentation lacks basis and is rejected.
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 l
discussion of the activities to be performed by SMUD. ECO further states that there is no discussion or quantification of the envimnmental, including 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 l
operation of Rancho Seco in 1973.
Both Licensee and Staff argue that this issue is without basis. The entire EA discusses the decommissioning activities to be perfo;med by or under the direct supervision of SMUD. Section 3.0 of the EA includes discussions of the site and location of the plant (5 3.1.1), socioeconomics is discussed in the EA at 6 3.1.3, as well as in the GEIS at 5 5.4 and the ER at f 5.4, and the impact -
of decommissioning activities on transportation, water use, and water quality at 59 3.1.7, 3.1.5, and 3.1.8, respectively. ECO makes no showing that any of
'2'To 53 30.
t30 Tr. 530.
247 l
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' these matters are misstated 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 expert opinion, and references no documents or other sources establishing the existence of a genuine dispute on a material issue of law or fact. Basis 8 is fatally flawed and is rejected.
e.
EA Contention Basis 9 ECO alleges that the EA errs in finding that the only relevant demographic and socioeconomic effects are within a 13-mi!r radius of Rancho Seco. It l
asserts that the " relevant radius is 50 miles as demonstrated by both the SMUD submissions and general NRC practice."U SMUD 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 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.u2 Both SMUD and the Staff also argue that-the issue has no basis in that ECO does not delineate a single example of any demographic or socioeconomic impact that could be relevant to the decommissioning of the plant but was not considered by the 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 Stat adds that any challenge to the 13-mile discussion should have been filed earlier, inasmuch as the Staff derived its data from SMUD's ER.U)
At the prehearing conference, ECO for the first time identified the source of its 50-mile claim. It referenced the " general NRC practice" of permitting persons residing within 50 miles of a facility to intervene and transmutes that practice into a generic requirement for ascertaining an area within which the Staff must evaluate environmental impacts.U4 As the Staff observes, there is no such presumption with respect to the de.
termination of areas for evaluating environmentalimpacts.U5 Use of the 50-mile premise for standing purposes in construction permit or operating license pro-ccedings was based on the conceivability of effects of a design-basis accident U3ER Coniention at 6.
02 SMUD ER Response at 27.
U3 sMUD EA Response at 27-28, Staff EA Response af 21-22, U4 Tr. 540, 542.
U8 Tr, 542-43.
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l extending that distance, thus providing injury in fact for purposes of standing
- In fact, even for standing purposes, the Commission has limited the presumption to proceedings in which an " obvious potential for offsite consequences" at that l
. distance could eventuate."1 No one has demonstrated that this proceeding is l-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 availabic under former rules."8 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, l
at the prehearing conference the Board inquired whether ECO could delineate
-l any particular impacts of decommissioning between 13 and 50 miles from the facility that were not considered, and it was unable or unwilling to do so."'
Accordingly, we reject the issue as lacking any viable basis.
'l.i 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 of operation.2*
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 in 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 Elt"t ECO
- See, e p., Virginia Electric and Power Ca (North Anna Power Stanon. Umts I and 2), ALAB-.522,9 NRC
$4. 56-57 (1979);Tennener Vancy Authority (wans Hs Nuclear Plant. Units 1 and 2) AtAB-413,5 NRC 14I8, 1421 n 4 (1977); Houston Ughting and roarr Ca (south Texas Project. Units I and 2), LBP-7910,9 NRC 439,
]
443 (1979).
Ulflorida Power and Ught Ca (St. Lucie Nuclear Power Plant. Units I and 2), CLJ-89-21,30 NRC 325,329-3n
-1 (1989); see nIso Pocpc Gar and Efterric Co. (DiabL C nyon Nuclear Power Plant, Units I and 2), LDP-9L1, 37 NRC 5,912 (1993).
"" Cf. Consumers Power Ca (Palisades Nuclear Iinnt). LDP-79 20,10 NRC 108,115 (1979).
"9Tr. 54142.
3"CLI-93-3, supra. 37 NRC at 14445 Revision to the Rancho seco Independent Spent fbcl Storage Installnerd linvironnental Report DAGM/NUC 93 008 (June 16,1993).
249
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makes no attempt to address this information and provides no facts that would
)
indicate any effect on SMUD's decommissioning plan or on the Staff's Safety l-
- Evaluation. Both Staff and Licensee point out that the Staff's SER discusses
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ll the ISFSI schedule and specifically states that its evaluation of the safety of l
decommissioning Rancho Seco does not depend on approval of the ISFSI design or on the ISFSI schedule:
l ~
.Although t!m Licensee analysis assumes NRC appmval of an ISFSI design, this safety l ~
evaluation does not depend on that approval. Even if RSNGS were to remain in Custodial-
)
SAFSTOR until Deferred-DECOM, the impacts of RSNGS in Custodial-SAFSTOR are wel!
within the irnpacts evaluated in the Final Environmental Statement related to the operation of RSNGS.W ne schedule, especially the transition from Custodial-SAFSTOR to liardened-SAFSTOR, and the length of the Custodial SAFSTOR period directly depends on the licensee ability to get t'e necessary NRC approvals for dry onsite storage of spent fuel On the basis of j
le the infe.@n submitt4 by the licensee, the staff finds the proposal acceptable even if approval for onsie storage is not achieved before the DECON phase.'f f
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.
o h.
Conclusions as to Basis and Specificity The Board has reviewed each of the 10 bases of ECO's EA contention and the SER contention and has found none to meet the requirements of 10 C.F.R.
l 5 2.714. Accordingly, they are denied. In reaching this decision the Board has also considered whether any issues were raised that, while not meeting the pleading requirements of section 2.714, raise issues of sufficient importance in environmental or health and safety areas that the Board should inquire further. We can discern no such issues among the environmental or safety issues attempted to be raised here.
- i. l'he 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 l
contentions, which essentially involves addressing the five factors found in 10 Wsafety Evaluation at 2, W il at9.
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e C.F.R. 5 2.714(a)(1)(i)-(v). These factors have been set forth earlier in this Order.
ECO states that factor (i) is satisfied in most cases because the information in the Staff environmental documents was otherwise not available for ECO's review
- previously, including the fact that the " principal environmental document," the Staff's EA, was not available until, on, or after June 16,1993. ECO states that factors (ii), (iii), and (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
~I proposed experts show not only a generalized t xpertise 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 record. As to factor (v), ECO j
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
_l consequences outweighs the unavoidable delay in satisfying NEPA's purposes.
J ne 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.ftling 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.'44 Crnmission regulations provide that environmental contentions, to the extent posible, must be submitted on the basis of th+ Licensee's ER and may not await &c Staff's environmental document. Section 2.714(b)(2)(iii)
.l provides:
l On issues arising under the National Environrnental Policy Act. the getitioner shall file contentions based on the applicant's environrnental report The petitioner can anend 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 suppleinents relating thereto, that differ significantly from the data or conclusions in the applicant's docunent hus, 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
- Tr 275-7R 251
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for ECO's failure to challenge the substance of the Licensee's report earlier in L
this proceeding.
l 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 l
ISFSI proceeding. Whether it would be timely in that other proceeding is beyond the purview of this proceeding. And whetherjurisdictionally 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 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 i
adequate justification.
Based on the above discussion, the Board concludes that ECO timely filed its challenges <et forth in Bases 1 through 5 of its EA contention. This is not the case, hewever, 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 te 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 GELS. 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.
1 l
I F.
Schedules As discussed at the prehearing conference (fr. 573-74), the Board will con-
. vene a telephone prehearing conference to establish schedules for discovery on the admitted contentions, the hiing 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.
Appeal Rights This Order is not subject to immediate appeal to the Commission pursuant to 10 C.F.R. 9 2.714a. It neither wholly denies nor grants a petition for leave to intervene / request for a hearing. The Commission's Order in CL1-93-3 performed those functions. We express no view with respect to the potential for discretionary Commission review should any party seek such review.
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- 11. 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 collec-tively) and Bases 2 and 14 (collectively) are hereby accepted for litigation. The remedy set forth in Basis 4 may also be litigated, although the remainder of
-i Basis 4 is denied.
I 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.
J 3.
Summary disposition of the previously admitted LOOP contention is j
hereby granted.
4.
This Order is an interlocutory order not subject to immediate appeal
]
pursuant to 10 C.F.R. 6 2.714a.
THE ATOMIC GAFETY AND LICENSING BOARD
-l J
Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE J
Dr. Richard F. Cole j
l ADMINISTRATIVE JUDGE Thomas D. Murphy ADMINISTRATIVE JUDGE Dethesda, Maryland November 30,1993 253 i
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4 Directors' Decisions Under 10 CFR 2.206 I
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l Cite as 38 NRC 255 (1993)
DD-93-16 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF ENFORCEMENT James Lieberman, Diroctor In the Matter of Doeket No. 30-22060 NUCLEAR ENERGY SERVICES November 19,1993 i
The Director, Office of Enforcement, responds in a Director's Decision to is-1 sues raised in a petition filed by Ernest C. Hadley on behalf of Arnold Gundersen (Petitionec) pursuant to 10 C.F.R. 5 2.206 and subsequent correspondence from l
the Petitioner and his wife. The Petitioner requested that action be taken with regard to Nuclear Energy Services (NES). The Petitioner sought, among other l
things: (1) prompt and decisive enforcement action against NES for procedu-ral and license violations, harassment of Petitioner, and material misstatements made to NRC inspectors; and (2) an immediate review of all pending investi-gations and the reasons for delay in taking enforcement action against NES. As a basis for this request, the Petitioner asserted that he was terminated from his i
position as senior vice president with NES after asserting to his management that certain violations had occurred, and that when the Region 1 inspection report was submitted to NES which erroneously found no merit to his assertions, NES I
knew, or should have knt i, that the report contained material misstatements of fact and failed to notify the NRC of such misstatements in violation of 10 C.F.R. 6 50.9. The Director has granted in part and denied in part the requests made by the Petitioner. The reasons for the denial are fully set forth in the Decision.
ENFORCEMENT POLICY: ENFORCEMENT OPTIONS The NRC has several enforcement options available to it, including Notices of Violations, civil monetary penalties, and orders to suspend, modify, or revoke licenses.
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l ENERGY REORGANIZATION ACT: SCOPE OF NRC ACTIVITIFS Congress explicitly gave to the Department of Labor the authority and responsibility to provide traditional, labor-related remedies to individuals for l
their losses resulting from discrimination, while reserving to the NRC the authority under the Atomic Energy Act to take enforcement action against
' NRC licensees and individuals for violations of NRC requirements. It is not Ii within the NRC's authority to provide a personal remedy to individuals for such discrimination.
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NRC: ENFORCEMENT ACTION IN DISCRIMINATION CASES The NRC has the authority to take enforcement action against NRC licensees and individuals for violations of NRC requirements. Such enforcement action is intended to provide a form of" protection" for whistleblowers in that the purpose I
of such action is to deter such conduct and to send a message to the licensee and -
other licensees that discrimination against employees for raising safety concerns will not be tolerated.
REQUEST FOR ACTION: SCOPE OF 10 C.F.R. 9 2.206 Matters relating to the conduct of NRC employees, including allegations of employee misconduct, are not within the scope of 10 C.F.R. 6 2.206. Rather, such matters are within the authority of the NRC Office of the inspector General.
DIRECTOR'S DECISION UNDER 10 C.F.R. Q 2.206 I
I.
INTRODUCTION On August 14, 1992, Ernest C. Hadley, as counsel for Arnold Gundersen (Petitioner), filed a request for enforcement action, which is being treated as a Petition pursuant to 10 C.F.R. Q 2.206. The Petitioner sought: (1) prompt and decisive enforcement action against Petitioner's former employer, Nuclear Energy Services (FES), for procedural and license violations, harassment of Petitioner, and material misstatements made to NRC inspectors; and (2) an immediate review of all pending investigations and the reasons for delay in taking enforcement action against NES.
In subsequent correspondence from Mr. Gundersen, Mr. Hadley, and Mar.
garet Gundersen (the Petitioner's wife), these initial requests were restated and additional requests were submitted. These included requens for: (1) immedi-256 i
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~ te action to protect Mr. Gundersen from continuing harassment by NES as well a
as financially (May 3,1993 letter frem Ms. Gundersen to Ivan Selin; May 11, 1993 letter from the Petitioner to Ivan Selin); (2) with respect to the lawsuit filed by NES against the Petitiener (i) prompt action to protect the Petitioner from the lawsuit filed by NES (January 28,1993, and February 9,1993 letters from the l-Petitioner to Ben llayes; February 22,1993 letter from Ms. Gundersen to Leo Norton); and (ii) issuance of a cease and desist order against NES to stop ha-rassment of the Petitioner (February 22,1993 letter from Ms. Gundersen to Leo Nonon); (3) strong and appropriate action against NES, including revocation of its license (February 22,1993 letter from Ms. Gundersen to Leo Nonon); (4) a i
response by NRC to NES' dispute over the facts outlined in a 1992 NRC inspec-tion report (February 9,1993 letter from the Petitioner to Ben Hayes); a meeting with NRC to discuss the evidence and outline enforcement action (November l
16,1992 letter fmm the Petitioner to Senator Joseph I. Lieberman); (5) a ruling 1
by the NRC that the settlement agreement signed by the Petitioner and NES on l
December 20,1990, is illegal and therefore null and void (February 12,1993 facsimile to Ben Hayes);(6) discipline of an NRC employee for intimidation of Ms. Gundersen (February 22,1993 letter from Ms. Gundersen to Leo Norton);
and (7) a full investigation into NRC's " cozy relationship" with NES (February l
22,1993 letter from Ms. Gundersen to Leo Norton).
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IL BACKGROUND l
l On April 18,1990, Petitioner advised NES management that radioactive ma-terials had been stored improperly at an NES facility. Petitioner documented these matters in memoranda to responsible NES managers, including the exec-utive vice president. On April 20,1990, he sent a revised rnemorandum to the executive vice president. He was later removed from the Radiation Safety Board i
and terminated by NES on May 21,1990. On June 8,1990, Mr. Gundersen filed a complaint with the Wage & Hour Administration (W&H) of the Depart-ment of Labor (DOL) pursuant to section 210'of the Energy Reorganization Act of 1974, as amended (now section 211), asserting that he was terminated for raising legitimate safety violations, and requested that DOL investigate his complaint and secure any remedies to which he may have been entitled.
I:
Petitioner also advised the NRC of his safety concerns. These issues were j
inspected by the NRC in July 1990, and a report was issued on October 24, j
1990, concluding that NES had not violated any Commission regulations.
l On July 12, 1990, W&H ruled that discrimination was not a factor in~
Petitioner's termination and advised Petitioner that, if he wished to appeal that l
finding, he was required to file an appeal with the DOL Chief Administrative Law Judge within 5,tays of the date of that letter. Petitioner did not file an 257 1
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I appeal of that decision with the Department of Labor but, on advice of cotinsel, did file an appeal with the U.S. Court of Appeals for the Second Circuit on September 4,1990. On December 13,1990, the Court of Appeals ordered that that appeal be dismissed. Thereafter, on December 20,1990, Petitioner entered into a settlement agreement with NES.
l' He settlement agreement's stated purpose was to resolve any and all disputes or potential disputes between Petitioner and NES. It did not " constitute an admission by [NES] of a violation of any federal or state' constitution, statute or regulation" In the agreement, Petitioner acknowledged that his allegations l,
l about discrimination by NES were investigated by the U.S. Department of Labor l
-l which " failed to substantiate the charges and found that [ Petitioner's] termination l
resolved [ sic] from an overall reduction in personnel and subsequent cost savings to the firm." The settlement agreement stated, among other things, that the J
Petitioner waived his "right to bring or pursue any judicial action, administrative l
agency action, any contractual action, any statutory action or procedure.
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arising from his employment with (NES] and separation therefrom." In a February 12,1993 letter to the NRC, the Petitioner claimed that the settlement agreement contained paragraphs that were illegal and, therefore, null and void.
Following these claims, on May 7,1991, NES advised Igor 1. Sikorsky, then j
the Petitioner's attorney, that a lawsuit would be filed against Petitioner for i
compensatory and punitive damages. The complaint in the lawsuit, filed on May 13,1991, asserted that Mr. Gundersen had maliciously and intentionally defamed NES and made intentional misrepresentations whereby he tortiously interfered with NES' business relations, and that he had breached the settlement agreement.
On June 22, 1992, Petitioner filed another complaint with the Department of Labor, requesting that it void its earlier determination, and find in his favor based, in part, on the fact that the initial determination of DOL was based on material false statements made by NES. On July 28, 1992, W&H disagreed, finding that Petitioner had failed to file within the 5 days allowed for an appeal and that the misstatements claimed by Petitioner were not related to the original DOL findings. An Administrative Law Judge recommended dismissal of the case on September 25,199'2, and the Secretary of 1. abor agreed with the' ALJ's l
recommendation and dismissed the case on January 19,1993. The Secretary's decision was not appealed by either party.
On August 14, 1992, Ernest C. Hadley filed the present petition with the NRC, requesting actions as described above. The NRC acknowledged receipt of l
this petition on August 31,1992, and requested information from the Petitioner concerning the Court of Appeats' action.
During the pendency of the DOL matters and the NRC review of them, some of Petitioner's safety concerns were reinspected by the NRC and found i
l to have merit. A Notice of Violation was issued to NES on June 12, 1992, l
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citing seven violations relating to NES' radiation safety program._ Since the reinspection of NES* activities revisited the safety issues taised by Petitioner, and since the Notice of Violation constitutes the appropriate enforcement action for the findings of that reinspection, the following discussion will only briefly address these violations and the resulting enforcement action and,instead, will focus on the alleged violations relating to discrimination against Petitioner and the other claims Petitioner has made concerning the issues raised in the correspondence outlined in the introduction above, it will not discuss in any detail the radiation safety issues which, as a result of the inspection and Notice of Violation described above, have already been addressed. However, the Staff has reviewed the' Notice of Violation and confirmed that the Licensec's corrective actions are an appropriate response to the violations identified.'
The NRC Office of Investigations also investigated the Petitioner's allegations concerning discrimination by NES. The report of investigation was issued June 14, 1993, and concluded that the Petitioner was laid off as a result of a legitimate business decision, and that his allegation of discrimination could not be substantiated.
III. DISCUSSION The following discussion will address the issues raised by petitioner in the order first outlined in the Introduction above.
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A.
Initial Requests 1.
In his August 14, 1992 petition, Mr. Gundersen requested prompt and decisive enforcement action against NES for procedural and license violations, harassment of Petitioner, and material misstatements made to NRC investigators.
The NRC has several enforcement options available to it, including Notices of Violations, civil monetary penalties, and orders to suspend, modify, or revoke licenses. The Notice of Violation issued on June 12, 1992, described above, cited NES for license violations identified by an NRC inspection conducted as a result of allegations by Petitioner. The violations found by the NRC reinspection of NES-licensed activities warranted a Notice of Violation, but they did not rise to the level of significance that would have resulted in a civil penalty being issued. (See NRC Enforcement Policy,10 C.F.R. Part 2, Appendix C.) This enforcement action.is considered appropriate for the violations identified and is
]
la preparing a response to an NES letter. dated August 14, 1992, that took issue with the Notice of Violation I
(Nom 4 the Staff aviewed this Notice. The Staff is satisfied that the violations occuned as stated and that the
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related newrity L*vels were correct for thow violations. Sn Wrch !!,1993 lener to NES.
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dispositive of the matter relating to the Petitioner's request for action relating to procedural and license violations. Therefore, to the extent that the Petitioner is requesting e'nforcement action for the safety violations in addition to that which has already been taken, the request is denied.
With respect to his claim of harassment, Petitioner has filed two complaints '
with the Department of Labor (DOL), the federal agency responsible for providing remedies for the person filing the claim. Petitioner also filed an appeal of the first DOL decision with the Court of Appeals, as described above. The i
proceeding in each of these actions resulted in n disminal of Petitioner's claim of discrimination. As stated above and as described fwther in an NRC letter to the Petitioner on June 14,1993, Congress explicitly gave to DOL the authority
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and responsibility to provide traditional, labor-related remedies to individuals for their losses resulting from discrimination, while reserving to the NRC the j
authority under the Atomic Energy Act to take enforcement action against NRC j
licensees and individuals for violations of NRC requirements. It is not within the
- NRC's authority to provide a personal remedy for the Petitioner as an individual.
f l
With respect to whether NRC should issue an enforcement action against NES for its allegedly discriminatory action, the NRC has reviewed both the actions of the Department of Labor and the findings of its own investigation. The Staff j
notes that the DOL has issued a decision finding that discrimination was not a factor in NES' action against Petitioner, and the Court of Appeals for the Second Circuit ordered that the Petitioner's appeal of this finding be dismissed.
The DOL also denied Petitioner's appeal of its original finding, concluding that the appeal was not timely filed. Thus, we have no information from the DOL process that would establish that Petitioner was discriminated against. Moreover, the NRC Office of Investigations investigated the allegation of discrimination and concluded that discrimination was not a factor in the action taken by NES against Petitioner. Taking all this into consideration, I find no basis to issue an enforcement action for discrimination in this case. Accordiagly, this portion of the Petitioner's request is denied.
He NRC Office of Investigations (01) has investigated Petitioner's claim of misstatements made by NES to NRC inspectors and concluded that there I
was insufficient evidence to substantiate this allegation. After reviewing the 01 report in this regard, I have concluded that Petitioner's claim that NES made material misstatements lacks merit. Accordingly, the Petitioner's request for enforcement action against NES for material misstatements made to the NRC is denied.
2.
In the August 14,1992 petition, Mr. Gundersen also asked for a review of all pending investigations and the reasons for delay in imposing an enforcement action against NES. The 01 investigt. tion referenced above was the only pending NRC investigation and it is now closed. 01 did not conclude that discrimination occurred or that NES misled NRC inspectors, and we have no basis to further 260 l
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review that investigation or imtate additional investigations into these matters.
Accordingly, this portion of the request is denied.
With respect to the delay in imposing enforcement action, the Staff waited until the OI investigation was completed and its report was issued before making a decision on enforcement action. There was no basis to take action earlier on this matter.
11.
Additional Requests In subsequent correspondence, while reiterating the above requests, Petitioner made several additional requests described in the Introduction to this Decision.
These additional requests are addressed as follows:
1.
With respect to the Petitioner's request for immediate action to protect him, to the extent that the Petitioner is requesting that the NRC provide him with financial protection, as explained above, Congress has given j
to DOL the responsibility to provide personal, labor-related remedies to individuals for losses resulting from discrimination. The NRC is without direct authority to provide such a remedy to an employee, but, instead, has the authority to take enforcement action against NRC licensees and individuals for violations of NRC requirements. Such enforcement action is intended to provide a form of " protection" for whistleblowers in that the purpose of such action is to deter such conduct and to send a message to the licensee and other licensees that dkcrimination against employees for raising safety concerns will not be tolerated. Ilowever, in this case, as explained above, the NRC has formd that NES did not discriminate against Mr. Gundersen for raising safety concerns, and there is no basis for taking enforcement action for any violation of NRC's whistleblower regulations. Accordingly, the Petitioner's request for immediate action to protect him in this case is also denied.
2.
With respect to Petitioner's request for: (i) prompt action regarding a lawsuit filed by NES against Petitioner, and (ii) issuance of a cease and desist order against NES to stop harassment of the Petitioner (presumably relating to the lawsuit filed by NES), based on the information available to the NRC, we have found no violation in NES' filing and pursuing
- l the civil suit and we have no basis on which to take action with regard to that civil suit. Therefore, these portions of the Petitioner's additional requests are denied.
- 3. The request for strong and appropriate action against NES, including revocation of its license, was considered as part of the request for i
1 enforcement action contained in the Petition and described above. As explained above, the NRC has found that the Petitioner has not provided 261 4
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a basis for taking any enforcement action against NES beyond those taken and reflected in the Notice of Violation.
4.
The Petitioner requested a response by NRC to NES' response disputing -
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- the facts outlined in'the NRC's 1992 inspection report. On March 11, 1993, the NRC responded to NES' August 14,1992 letter in which NES disputed the findings of the NRC inspection. The NRC staff concluded in that March 11 letter that NES had provided an insufficient basis to revise the NRC inspection report or to alter the original conclusions and sustained the finding that violations had occurred. Since a response to 1
NES has already been issued, this portion of the Petitioner's additional requests in effect has been granted.
O S.
The Petitioner requested a ruling by the NRC that the settlement agree-ment signed by the Petitioner and NES on December 20,1990, contained paragraphs that were illegal and, therefore, null and void. In particular, Mr. Gundersen asserts that certain provisions of the settlement agree-ment restrict his ability to raise safety concerns in violation of 10 C.F.R.
j 6 30.7. A review of the paragraphs in question reveals that they refer only to the terms of the settlement, and not to the safety concerns that he raised, a condition that must be satisfied for finding that the agreement j
is a violation of section 30.7. With respect to this issue, in a letter dated I
March 24,1993, I stated that the settlement agreement may possibly prohibit Mr. Gundersen from exercising his rights under section 211.
Following an exchange of documents from NES and Mr. Gundersen and a review of a deposition taken from Mr. Gundersen on November 10, 1992, which the Petitioner states supports his position, the Staff is un-able to conclude that the settlement agreement restricted Mr. Gundersen from raising safety issues. ' Rather, the restriction applied only to dis-cussing the terms of the settlement and employment issues. Therefore, this portion of the request is denied.
6.
The Petitioner's wife requested discipline of an NRC employee for intimidating her during testimony given at a public meeting on February 3,1993. Matters relating to the conduct of NRC employees, including allegations of employee misconduct, are not within the scope of 10 C.F.R. 6 2.206. Rather, such matters are within the authority of the NRC Office of the Inspector General (OlG). In this case, after considering this request, the OlG concluded that the allegation was too general and lacking in sufficient background to pursue.
7.
The Petitioner's wife requested a full investigation into NRC's so-called " cozy relationship" with NES. As stated above, requests for such investigations are outside the scope of section 2.206 and are within the authority of the NRC Office of the Inspector General (OlG). Therefore, this portion of the request is denied. We not, however, that O!G has 262
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investigated charges involving NRC employees and NES. OlG reported the tesults of this investigation in OIG Report No.91-72A.
IV. CONCl,USION i
l As explained above, with the exception of the Petitioner's request that the NRC respond to NES' response disputing the facts outlined in the NRC's 1992 inspection report, the Petitioner has not raised any issues that would warrant the requested actions Therefore, for the reasons given above, the Petitioner's requests are denied except as noted with regard to the request for a response to NES' response to the June 12, 1992 Notice of Violation, which has been granted. As provided in 10 C.F.R. 6 2.206(c), a copy of this Decision will be filed with the Secretary for the Commissiods review.
James Lieberman, Director Office of Enforcement
- I Dated at Rockville, Maryland, this 19th day of November 1993.
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Cito as 38 NRC 264 (1993)
DD-9317 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Director in the Matter of Docket No. 50-293 (License No. DPR-35) i' BOSTON EDISON COMPANY (Pilgrim Nuclear Power Station)
November 19,1993 A petition, dated October 30,1991, requested the Commission to reconsider an earlier Commission approval of a task force recommendation that the NRC not reconsider its " reasonable assurance" finding regarding emergency preparedness at the Pilgrim Nuclear Power Station, 'Ihe Petitioner set forth ten bases for that request. Subsequently, the Petitioner raised additional concerns, some of which are related to matters raised in the petition, in correspondence with a Commissioner's office, the Office of the Secretary of the Commission, and the Chairman. 'Ihe Director of the Office of Nuclear Reactor Regulation has considered all of the matters raised in the petition, as deemed supplemented by relevant additional matters raised in the sebsequent correspondence, and has denied the petition.
DIRECTOR'S DECISION UNDER 10 C.F.R. s 2.206 JNTRODUCTION The Petition On October 31,1991, Jane Fleming filed a petition requesting that the U.S.
Nuclear Regulatory Commission reconsider its July 30, 1991 decision giving unanimous approval of a task force recommendation that it was not necessary 264
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for the NRC to reconsider its reasonable assurance finding regarding emergency preparedness for the Pilgrim Nuclear Power Station?
Hackground The events leading up to the Commission's approval of July 30,1991, which Ms. Fleming asks the Commission to reconsider, are as follows:
On September 6,1990, the NRC held a public meeting in Plymouth, Massachusetts, to obtain information from public officials and private citi-7 ens regarding the current state of offsite radiological emergency planning and preparedness around the Pilgrim Nuclear Power Station. During the meeting, twenty-five persons, including Commonwealth and local officials and private citizens, testified and tendered documents regarding issues and concerns about emergency preparedness (EP) for the Pilgrim Station.
On September 12, 1990, NRC's Executive Director for Operations (EDO) informed the Commission that he was establis' a special task force to review the assertions and documents presented to the Staff at the public meeting on September 6,1990. On September 24,1990, the EDO forwarded the charter for the task force to the Commission; the charter included the following five specific tasks:
1.
Identify Pilgrim offsite EP issues in dispute.
2.
Determine the factual status of issues in dispute.
3.
Describe the current status of offsite EP for Pilgrim.
4.
Identify and assess the significance of existing EP problems.
5.
Recommend whether the NRC should reconsider its reasonable assurance finding (that adequate protective measures can and will be taken in the event of a radiological emergency at the Pilgrim Nuclear Power Station).
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The Task Force The Pilgrim Task Force comprised staff from the NRC and the Federal j
Emergency Management Agency (FEMA) supported by contractors. Factual information for the review was obtained primarily by task force teams working with. state and local officials responsible for emergency preparedness in the area 4
i of the Pilgrim Nuclear Power Station.
AlthouFh staff from both the NRC and FEMA participated in the effort, the task force activity was not intended as a substitute for NRC's normal regulatory
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8 Ms. Heming presented ter paper to the Comnussion on october 30.1991. h was dxketed the foHowing day.
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I oversight of Pilgrim EP or as a substitute for FEMA's ongoing review of offsite EP for the Pilgrim Station.
3 He task force categorized information from the September 6,1990 public l
meeting into about twenty topics; these topics were then assigned to field teams L
for fact finding. The task force field teams started work on October 31,1990.
Ilefore issuing its final report and recommendation, the task force published I
a draft report for comment on May 28,1991. It conducted a public meeting to I.
receive comments on June 12,1991. On June 18,1991, the task force presented i
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its final report and recommendation to NRC's Executive Diiector for Operations, j
who forwarded them to the Commission.
1 The Commission On July 30,1991, the Commission unanimously approved the task force rec-ommendation that it was not necessary for the NRC to reconsider its reasonable assurance finding regarding emergency preparedness for the Pilgrim Nuclear Power Station.
The Asserted Bases for the Petition As stated above, on October 31,1991, Jane Fleming filed a petition asking the j
Commission to reconsider its decision approving the task force recommendation.
She also requested that the Commission set the "120 day clock." Although j
Ms. Fleming did not cite section 50.54(s)(2)(ii) of Ti.te 10 of the Code of i
Federal Regulations (10 C.F.R. I50.54(s)(2)(ii)), I i'iterpreted the request to mean, in accordance with the regulation, that the NRC should find that the state of emergency preparedness at Pilgrim does not provick rewbole assurance that adequate protective measures can and will be taken in the event of a radiological emergency and,if the deficiencies are not corrected within 4 months of that finding, the Commission should determine whether the reactor should be shut down until such deficiencies are remedied or whether other apprope n enforcement action should be taken.
As bases for her request, Ms. Fleming asserted that the task force did not achieve the goals set out in its charter, that the task force was disbanded before the final recommendation was made, that the task force ignored established NRC policy, that the Commission overlooked areas of concern, and that the Commission's approval could not properly have been based on the findings provided by the task force.
Ms, Fleming further alleged that emergency planning for Pilgrim Station is in violation of 10 C.F.R. 5 50.47 and is not in accordance with NUREG-0654, " Criteria for Preparation and Evaluation of Radiokigical Emergency 266 l
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Response Plans and Preparedness in Support of Nuclear Power Plants." Ms.
. Fleming asserted ten bases for this allegation: (1) the reception center to the north is not adequate, (2) transportation is not adequate, (3) monitoring of schoolchildren is not adequate, (4) monitoring of the handicapped is not
- adequate, (5) decontamination of the handicapped is nonexistent, (6) planning for evacuation of Saquish-Gurnet and Clark's Island is not adequate, (7) interfacing of plans is not adequate, (8) public information is not adequate, (9) direct torus vent interfacing with emergency planning issues is not resolved, and (10) congregate care facilities are not under agreement.
On November 7,1991, Ms. Fleming telephoned David Trimble of Com-missioner Curtiss' staff to raise a new concern about the egress route from Saguish-Gurnet. In addition, Ms. Fleming telefaxed to Mr. Trimble a copy of her comments on the State's preparations for the graded exercise for Pilgrim scheduled for Decernber 12,1991.
Ms. Fleming expressed to Mr. Trimble a belief that her comments on the planned graded exercise were relevant to the issues raised in her petition. I have treated the information that Ms. Fleming [ communicated] to Mr. Trimble as a supplement to Ms. Fleming's petition and have considered this material in preparing my response to the petition.
On November 15,1991 Ms. Fleming forwarded to William M. IIill, Jr., of the Commission's office of the Secretary a copy of a memorandum from Grant C. Peterson, Associate Director for State and Local Programs, FEMA, to Russell F. Miller, Inspector General of FEMA concerning Ms. Fleming's allegation to FEMA regarding the Pilgrim Offsite Emergency Preparedness Task Ibree. In a cover note to Mr. Hill, Ms. Fleming expressed her belief that the information she was providing supported the position she had taken in her petition. I have treated the material provided by Ms. Fleming on November 15,1991, as the second supplement to her petition and have considered this material in preparing my response to the petition.
DISCUSSION A.
The Commission's Interpretation of Its Emergency Planning Regulations he Commission's regulation governing emergency plans for nuclear power reactor applicants seeking operating licenses,10 C.F.It { 50.47, states in paragraph (a)(1) that no operating license for a nuclear power reactor will be issued unless a finding is made by the NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. For operating _ reactors,10 C.F.R. 6 50.54(s)(2)(ii) requires the following:
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N If.. the NRC finds that the state of emergency preparedness doch not provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.. the Commission will determine whether the reactor shall be shut down until such deficiencies are remedied or whether other enforcement action is appropriate.
i The NRC bases its findings in both of these cases on a review of the FEMA findings and determinations as to whether state and local emergency plans are t
adequate and capable of being implemented, in addition to the NRC assessment as to whether the licensee's emergency plans are adequate and capable of being implemented. Paragraph (b) of 10 C.F.R. 6 50.47 lists sixteen standards that must be met by the onsite and offsite emergency response plans in order for
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the NRC to make a positive finding that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
The Commission has defined the phrase " adequate protective measures in
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the event of a radiological emergency" on several occasions. In long Island Lighting Co, (Shoreham Nuclear Power Station, Unit 1), CL1-86-13, 24 NRC 22,30 (1986), the Commission stated
.J Our emergency planmng regulations are an important part of the regulatory framework for
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protecting the public health and safety. But they differ in character from most of our rdting and engineering design requirements which are directed at achieving or maintaining a
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minimum level of public safety protection. Sec. e g.,10 CF.R. I100.11. Our emergency planning requirements do not require that an adequate plan achieve a preset minimum radiation dose saving or a tuinirnum evacuation time for the plume exposure pathway f
emergency planning zone in the event of a serious accident. Rather, they atterupt to achieve reasonable and feasible dose reduction under the circumstances; what may be reasonable or feasible for one plant site may not be for another.
More recently, the Conunission addressed the intent ofits emergency planning requirements in Publie Service Co. ofNew Hampshire (Seabrook Station, Units 1 and 2), CLI-90-2,31 NRC 197,217 (1990). There the Commission stated:
Emergency plans are to be evaluated on their own merits, against the sixteen planning 1
standards of 10 CF R. 6 50.47(b), with presumptive vatidity accorded to FEMA's expert judgments on offsite planning; that the evaluation does not entail consideration of dose consequences that might be calculated under various hypothetical circumstances; and that a plan judged against those planning standards is considered generally comparabic to any other plan that has been found adaluate.
On an appeal brought by the Commonwealth of Massachusetts and other 1
petitioners, Commonwealth of Massachusetts v. U.S. Nuclear Regulatory Com-mission, 924 F.2d 311 (D.C. Cir.1991), the Court of Appeals for the D.C.
Circuit addressed the Commission's interpretation of its emergency planning regulations. 'Ihe court stated:
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j Section 182(a) [of the Atomic Energy Act] does not expressly require that " adequate protection" be judged by a single standard for different categories of safety features. In fact, we have repeatedly emphasized the broad discretion available to the agency in devising.
appropriate standards and have held that " adequate protection" permits the acceptance of some level of risk. See Union of Concerned Scientists v. NRC. 824 F.2d 108,117-18 (D.C. Cir.1987). It is for the NRC to determine whether a level of, or approach to, risk l
reduction is acceptable for offsite planning that may not be adequate for plant siting rid design engineering.
Thus, in reviewing emergency plans, the question is not whether the plan is perfect, but whether it provides for " reasonable assurance of adequate protection of the public health and safety" It is in this context that I have reviewed Ms.
Fleming's request for reconsideration of the NRC's approval of the emergency plan for the Pilgrim Nuclear Power Station.
~l 11.
The Allegation That the Task Force Failed to Meet its Charter
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The petition addresses the matter of whether the task f<;rce met its charter.
This concern is expressed in the petition as follows:
l There are too many areas in which the task force simply failed to ma'e factual findings or in which it otherwise fell far short of its full chaster obligations.
a.
Describing the current status of offsite EP.
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As just one example of this, the task force neglected to mention in its fi idings that the " quick fix" is only an interim measure, for 4 to 6 months. This may be ju ( long enough to get Boston Edison Company (BECo) through the exercise, but plannine as for an accident that may happen at any time, not just for an exercise 4 to 6 months hence. Sheet 11, also in the packet before you, gives a number of aspects in which the task force's supposed description
.l of the current status of emergency planning are not correct.
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b, identifying and assessing the significance of existing EP problents.
1 The lack of assessment of the current Letter of Agreement format mentioned above is a
'l prime example. Sheet III, before you, identifies several others.
Accepting " solutions" that do not comport with Federal regulation and guidelines.
c.
A number of" solutions" accepted by the task force indicate a strong desire to accommodate
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the utility; but not to protect the public or to comport with Federal regulation and Guidelines.
The now well-known quick fix is one of the more blatant examples. Sheet IV, again in the packet before you, describes a number of others.
d.
Disbanding before making an independent recommendation as to whether the NRC Should reconsider its " reasonable assurance" findings.
j Ms. Fleming's allegation that the task force failed to meet its charter is i
unsubstantiated.
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1 ne task force meticulously followed its charter, which the EDO sent to the Commission on September 24,1990, and revised on September 26,1990. The task force published the charter in section 1.2 of its report (NUREG-1438). The task force was diligent in fulfilling its charter obligations; these were not intended to substitute for NRC's normal regulatory oversight of emergency preparedness (EP) at Pilgrim or to substitute for FEMA's ongoing review of offsite EP for Pilgrim Station. The scope of the task force work was limited by its charter to i
determining the factual status and assessing the significance of issues raised at I
a public meeting on September 6,1990, and corollary issues that the task force identified in the course of its fact-finding work. Specifically, the task force did not attempt to conduct a comprehensive review of offsite emergency plans such as FEMA might perform as part of its certification process under Part 350 of Title 44 of the Code of Federal Regulations. These practical limitations on the scope of task force activities are clearly stated in section 1.4 of the task force i
report.
In response to Ms. Fleming's allegation that the task force accepted temporary (quick fix) " solutions," it should be pointed out that the task force charter explicitly states that:
The review should aho consider compensatory measures that local and State entities may have established to address weaknesses while working towards a permanent resolution.
Ms. Fleming alleged that the " lack of assessment of the current LOA (letter of agreement) format" is a " prime example" of task force failure to identify and assess the significance of existing emergency preparedness problems. Ms.
Fleming raised this concern along with others in a day-long meeting with the task force on January 30, 1991. The transcript of that meeting is cited as document l'T-52 in the list of references in Appendix A of the task force
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report (NUREG-1438). It is available in the NRC Public Document Room in l
Washington, D.C., and the local public document room in the public library in Plymouth, Massachusetts. Ms. Fleming's concern involved a proposed new q
i format which was neither final nor in effect at the time the task force conducted its review. The task force conducted a very thorough and detailed assessment of the existing LOAs between offsite officials and transportation providers. The task force found that, although some of the existing LOAs were not clear, concise, or consistent, as a group they were adequate to meet the guidance of NUREG-0654.
Ms. Fleming refers to hei " Sheet IV" as containing examples of solutions accepted by the task force indicating "a strong desire to accommodate the utility" rather than protect the public Sealth and safety. In " Sheet IV," among other things, Ms. Fleming attacked Commenwealth and BECo officials for agreeing "that 32 pers6Trare adequate to handle the Wellesley Reception Center" 270 1
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She challenged the veracity of private companies that provide transportation resources in support of emergency planning. She also challenged FEMA's qualification to work with the Commonwealth on problems involving field monitoring teams. No bases have been provided to show that the 32 persons at the Wellesley Reception Center would not be an adequate staff or to question the sincerity of the private transportation companies or the qualifications of FEMA.
" Sheet IV" provides no basis for Ms. Fleming's unsupported allegations.
C.
The Allegation That the Task Force Was Disbanded liefore a Final Recommendation Was Made Concerning the allegation that the task force was disbanded before a final recommendation was made, the petition makes the following statement:
The statement "the Commission.. approved the task force recommendation.
does not accurately portray the sequence of events that occurred.
My understanding is that the Task Force, as a body, was disbanded before any final I
recommendation was made. Although the EDO had the right to recall and seek advice and opinions frorr. individual members, the Task Ibree as an entity did not exist. Therefore, the independen e slut the " Task Ibree" as a txxly enjoyed was no longer in place when the EDO, as.a. indM&..t. iormulated the final recommendation that there was no need for the NRC to * :consi.ter its reas<mable assurance finding regarding emergency preparedness for Pdgrir Sta%n. Dere was no recommendation of an independent " Task Force" for the Commi%mt. "o opprou Ms. Fleming a" Pion regarding the task force's recommendation and the Commission', approal of it is without any basis in fact. Rather, the facts are.
to & vontrary and are as fcdlows:
On June 18, 1991, all NRC members of the task force formally con-curred on SECY 91-190, " Final Report and Recommendation of the Task Force on Pilgrim Offsite Emergency Preparedness (EP)." As stated in that paper, " FEMA personnel fully participated in the compilation of the task force report and concur in its assessments." However, since FEMA is not authorized under its rules to make a direct recommendation to the Com-mission, FEMA members of the task force presented instead a separate statement on the results of FEMA's own review process. Hat statement, in a letter of June 18,1991, from Grant C. Peterson (FEMA) to James M.
Taylor (NRC), conveyed a FEMA finding that " adequate protective mea-sures can be taken offsite to protect the health and safety of the public in the event of a radiological emergency at the Pilgrim Station." The FEMA I
letter was incorporated as Enclosure 4 to SECY-91-190.
in summary, SECY-91-190 contains the June 18,1991 recommendation 4
of the task force, which the EDO forwarded to the Commission on June 271 i
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24, 1991, and which was approved by the Commission on July 30,1991.
Thus, the task force was not disbanded before a final recommendation was made. All these documents are available to the public.
D.
The Allegation That the Task Force Ignored Established NRC Policy The allegation that the task force ignored NRC policy is stated in the petition as follows:
The task force ignored established NRC policy.
The NRC is the ultimate authority on Ernergency planning, as has been upheld by the court's Isic] on numerous occasions. As the NRC 1.G. audit explained, the NRC's policy is that a fundamental flaw can be ascertained from a review of the plan itself. and should be conected when found. As illustrated by the examples from Sheet 1 which you have before you, the task force ignored this NRC policy, and instead embraced FEMA's philosophy that deficiencies are identified solely through an exercise.
The facts surrounding the issue raised by Ms. Fleming's allegation charp.ng that the task force ignored established NRC policy do not support the alteration.
Rather, they establish that the allegation had no basis.
'Ihe task force report (NUREG-1438) identified a number of planning matters that were being resolved and improvements that were being made by officials and agencies responsible for offsite emergency planning and preparedness for Pilgrim Station. None of these, including areas identified by the task force as warranting attention before the next exercise, were considered serious enough to bear upon the question of reasonable assurance. In fact, the task force recommendation in SECY-91-190 reflected the judgment that problems bearing on reasonable assurance had already been satisfactorily resolved through actions taken by the Commonwealth of Massachusetts, local communities, and BECo.
Nevertheless, the task force considered it reasonable and prudent for FEMA to monitor progress where commitments had been made and improvements undertaken.
Accordingly, throughout the task force report one finds statements such as
" FEMA will evaluate" or " FEMA will monitor." None of these statements indicate any failure in the plan, but rather relate to additional FEMA duties under the FEMA-NRC Memorandum of Understanding,50 Fed. Reg.15,485 (1985). Moreover, in considering Ms. Fleming's request that the NRC make an adverse finding under its regulations in 10 C.F.R. 9 50.54(s) I note that that very regulation states "the NRC will base its finding on a review of the FEMA findings and determinations as to whether State and local emergency plans are adequate and capable of being imp!cmented" (10 C.F.R. $ 50.54(s)(3)).
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J In summary, the NRC found the plan adequate. Further. it is reasonable and prudent to monitor progress being made in offsite emergency preparedness for the Pilgrim Station and altogether proper for this to be done by FEMA.
E.
The Allegation That Others llave Acted on Information Since the Commission's July Approval of the Task Force Recommendation This allegation is explained in the petition as follows:
1 As shown by the information in the Packet before you, FEMA's 1.G. has found that l
a-1 my concerns on the adequacy of staffing and monitoring at the Wellesley Reception Center, and adequacy of transportation, in particular for handicapped, were valid, and have requested that specific corrective actions be taken. (See footnote 3) This j
Commission's decision clearly overlooked these areas of concern.
b.
During dialogue I had with the task force concerning the new LOA format, it promised to " pursue my questions and concerns. Despite its guarantee that it would do so 'The task force did not review the new LOA format." These LOA's are useless letters of intent. In time, tlamks to the review and assessment of Dave Rodham, of MEMA a new and approved LOA will be implemented. Today, because the task force failed to conduct its promised review of the LOA. format; the public has no "teasonable assurance" that the necessary transponation will be provided. (See footnote 4) c.
The NRC 1.G. is currently considering a number of other concerns I have raised q
regarding the task force assessment of emergency planning. (See footnote 5) The Office of Investigation is investigating what only can be characterind as imCo lies.
In short, others have considered and found valid a number of important points that the Commission decision apparendy did not consider in its Decision, even though I and others J
have presented them to you and your staff in the past.
1 Contrary to the allegation stated in the petition, the facts surrounding these matters are as follows.
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FEMAIG On September 27, 1991, William C, Tidball, FEMA's Acting Assistant Inspector General for Inspections, responded to Ms. Fleming's allegations. That
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letter contained the following statement:
After investigating these issues, we found no issue that would result in a reversal of FEMA's finding that offsite radiological emergency planning and preparedness were adequate to protect the public health and safety in the event of an accident at the Pilgrim plant.
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t This statement is clear and unequivocal, and summarizes the conclusion drawn by the FEMA OIG regarding Ms. Fleming's allegations.
b.
MEMA implementing New Improved Letters of Agreement As stated in the task force report (NUREG-1438), at p. 2133:
i The task force found that the transportation letters of agreement were executed with all transportation providers (except those facihties providing their own transportation) and as a I
group were adequate to meet the guidance of NUREG 0654.
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This is the important conclusion drawn by the task force.
The task force report goes on to state the following:
Maintenance of the letters of agreemtut by Massachusetts Civil Defense Agency (MCDA) was inadequate. When this repoe was pepared, BECo and MCDA were renewing the letters
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of agreenent using a new format th= W y expected would ensure uniformity and clarity of commitrnents. Tie task force did not review the new LDA format. Ilowever, MCDA has j
provided draft procedures to FEMA that address the maintenance of letters of agreement.
j Contingent upon implementation of such procedures, this aspect of the maintenance ot
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transportation arrangements is resolved. FEMA will monitor the implementation of this procedure.
In summary, the task force identified maintenance of the LOA's - not format
- as a matter of some concern, noting nevertheless that BECo and MCDA (now MEMA) were introducing a new format. Accordingly, followup action and monitoring by FEMA seemed appropriate and was focused on the LOA maintenance procedure.
c.
NRC OlG and 01 By letter of October 22,1991, Frank 1 Congel, Director, Division of
-l Radiation Protection and Emergency Preparedness, NRR, informed Ms. Fleming
-l that the staff had reviewed concerns she had expressed to the Chairman's office about the way emergency planning issues for the Pilgrim Nuclear Power Station j
were being handled. Dat letter contained the following statements:
]
'I The staff reviewed your concerns and the documentation you provided and concluded that the substance of the issues raised had been considered by the Pilgrim Offsite Emergency
.I Preparedness Task Force.
With respect to your concerns on how the task force dealt with the issues, we have conveyed j
your concerns and documents to the NRC Inspector General's office for whatever action j
is deened appropriate. The NRC Office of Investigations has also been notified of your concerns regarding statements made by the licensee.
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In transmitting this Petitioner's information to the NRC Office of the In-spector General and Office of Investigations, respectively, the NRC Staff did not recommend investigations. This does not preclude self-initiated actions by those offices. The NRC information that the Staff provided to NRC's OIG and 01 does not call into question the adequacy of offsite emergency planning and preparedness for Pilgrim Station.
F.
The Allegation That the Commission's Approval Could Not Properly llave lleen Itased on the Findings Provided by the Task Force in her petition, Ms. Fleming alleged in the following words that the Com-mission's approval could not properly have been based on the findings provided by the task force:
The Commission's " approval" could not property have been based on the fmdings provided by the task force.
This is the fundamental basis of my petition. There are too many areas in which the task force simply failed to make factual findings or in which it otherwise fell far short of its full charter obligations.
Ms. Fleming's allegation charging that the Commission's approval could not properly have been based on the task force's findings is unsubstantiated.
In making this allegation, Ms. Fleming fails to recognize that the task force findings did not constitute the sole basis for the Commission's decision which this petition asks the Commission to reconsider, This is clearly stated in the following comments by Chairman Carr accompanying his vote on June 28,1991, which have been made available to the public:
I approve the recommendation of the task force not to reconsider the NRC's reasonable assurance finding regarding emergency preparedness for Pilgrim Station.
I base this approval on several considerations:
(1) The Federal Errergency Management Agency (I'EMA) has, on June 18,1991, confirmed to the agency that FEMA " finds that adequate protective measures can be taken offsite to protect the health and safety of the public in the event of a radiological emergency at [the Pilgrim Station) site."
(2) The task force has determined the factual status of issues in dispate through an extensive review of docurnents, inspections of facilitics, and nu.erings with local officials and other interested parties.
(3) Notwithstanding the fact that five areas of offsite emergency preparedness were found by the task force to require attention before the next exercise, the general level of emergency preparedness at the site meets the requirements of the agency's regulations.
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r (4) It is not necessary for an adequate assurance fmdmg that all aspects he found to be in full compliance, In this case, those aspects that swed attention have adequate follow-up actions and responsible panics have been identified.
(5) Attention to energency preparedness for this site will continue through the required quarterly status reports to the Commission by the staff.
In summary, the Commission based its decision on findings of the task force on specific issues as well as broader FEMA findings and information provided by officials responsible for offsite emergency planning and preparedness for the Pilgrim Nuclear Power Station. In alleging that "there are too many areas in which the task force simply failed to make factual findings," the Petitioner fails to recognize the scope and limitations of the task force work, which are clearly spelled out in section 1.4 of the task force report. As stated therein, on page 1-3:
Ahhough staff from both NRC and ITM A panicipated in this effort, the task force activity was not intended as a substitute for NRC's normal regulatory oversight of Pilgrim EP nor as a substitute for IEMA's ongoing review of offsite EP for the Pilgrim Station Specifically, the task force did not attempt to conduct a comprehensive review of offsite emergency plans such as FEMA might perform as part of its certification process under Part 350 of Title 44 of the Code of Federal Regulations (CFR),
G.
Petitioner's Objections to Task Force Findings Ms. Fleming's petition includes four " sheets" (lists) of statements extracted from the task force report (NUREG-1438). Ms. Fleming alleged that these sheets of excerpts indicate, respectively:
(1) Task force dependence on exercise and I'EMA to make determination whether or not a flaw exists.
(2) Task force flaws describing the current status of EP.
(3) Task force flaws in identifyir.g and anessing the significance of 1:P problems.
(4) Acceptance of certain solutions by the task force to accommodate the utihty, but not to protect the public.
I fail to find the grounds for Ms. Fleming's assertions in the material execrpted from the task force report. Regarding the first assertion, and cortesponding sheet of excerpts, the task force report identified a number of planning matters that were being resolved and improvements that were being made by officials and agencies responsible for offsite emergency planning and preparedness for Pilgrim Station. The task force concluded that none of these were serious enough to bear upon the question of reasonable assurance of adequate protection of the 276
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. public health and safety. Nevertheless, it was considered prudent for FEMA to monitor progress where commitments had been inade and improvements
. undertaken, and the next exercise provided a good opportunity to assess that progress.
Petitioner's remaining assertions and corresponding sheets of excerpts from the task force report reflect dissatisfaction with various findings and judgments of the task force. Nevertheless, Petitioner's views are not shared by Commonwealth officials responsible for offsite emergency planning for Pilgrim Station, as evidenced by the following comtnent from the Director, Massachusetts Civil Defense Agency and Office of Emergency Preparedness (now the Massachusetts Emergency Management Agency), to the task force on June 12, 1991:
In general, we agree with the fmdings and are engaged in a continuing process to improve the plans for Pilgrim offsite energency preparedness. As you are aware. we have solved multiple issues, especially during the last few rnonths that were of concern to the task force.
This was as a result of a tremendous cooperauve effort between RMA, local government, other State agencies, the utihty, the Executive Office of Public Safety and our own MCDA staff. We will. af course, keep EMA informed as we continue to address nny and all items in whLn interested pardes and the task force had a concern.
This comment was contained in a memorandum to the task force which was also enclosed with SECY-91-190 and made available to the public.
On October 30,1991, the Commission met in open session and heard directly from officials responsible for offsite emergency preparedness for the Pilgrim Nuclear Power Station. (Ms. Fleming attended this meeting, and at the end of the meetings she addressed the Commission and presented her petition.) During the meeting, the Commonwealth of Massachusetts reaffirmed its satisfaction with the task force report.
In remarks prepared for that meeting and sent to the Secretary of the Commission by letter of October 28, 1991, Mr. A. David Rodham, Director of the Massachusetts Emergency Management Agency, made the following statement:
As you aie well aware. State and kical public employees, officials and volunteers spent many hours with the task force members providing information which reflected the status of the prograrn. 'fhe task force's report, NUREG-1438, has provided the basis for quantifying and closing out the remaining issues.
'Ihus, notwithstanding Petitioner's dissatisfaction with findings and judgments of the task force, as reflected in NUREG-1438, it is evident that the task force report was judged sound by Commonwealth officials responsible for offsite emergency planning and accepted by them as a guide for resolving emergency preparedacss issues for the Pilgrim Nuclear Power Station. Accordingly I conclude that Petitioner's remarks about the task force and its report are 277
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unfounded. Petitioner's con plaint that the task force accepted "certain solutions" has already been discussed in the context of the task force charter which required the task force to consider compensatory measures addressing weaknesses.. In that regard, as well as the other aspects of its work, the task force was faithful to its charter.
II. Ten Specific Allegations In her petition, Ms. Fleming cited ten specific " reasons" why the Commission should reverse its decision regarding emergency preparedness for Pilgrim Sta-tion, I have considered each of them and conclude that they are not supported by the recorded facts, as discussed below.
1.
Petitioner alleges that the reception center to the north is not adequate.
The facts do not substantiate this allegation. On the contrary, as stated on page 2-94 of its report, the task force toured the Wellesley Reception Center on November 7,1990, and confirmed that the reception center and its associated emergency operations center were equipped to function..The task force also noted that the center would be evaluated in the December 1991 exercise (NUREG-1438 at p. 2-96).
In remarks prepared for the Commission meeting of October 30,1991, Mr.
Richard 11. Strome, FEMA Regional Director, provided further information on this subject as follows:
There are new developments concerning the Wellesley Reception Center and Massachusetts Emergency Management Agency Area IL At one time, both these facilities used members of the Massachusetts National Guard for functions requiring rapid mobilization. He task force found the use of the Guard for this type of function unacceptable because of their long mobilization response time. As a result, the Commonwealth instituted an interim solution using BECo staff and also, for Wellesley, staff from State agencies. On October 8,1991, FEMA was informed by the Commonwealth that instead of using BECo and State agency staff as the initial response group at Wellesley,it will now use members and associates of the Massachusetts Radiological Defense Officers Society. One training session, including classroom and hands-on training, has already taken place for the new group. When sufficient staff have been assembled the Massachusetts National Guard will assume monitoring and decontamination duties at the reception center.
Mr. Strome also noted that this matter had been raised through FEMA's
-independent Office of the Inspector General. In his words:
The Inspector General has completed his inquiry. lie did not take issue with FEMA's actions concerning staffing levels at the Wellesley Reception Center, lie requested that FEMA's State and Local Programs and Support Directorato provide an update after the fkcember 278 d
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exercise and when a generic standard is developed by the Federal Radiological 1%paredness Coordinating Committee for portal moritors, such as those used at Wellesley.
he subject reception center is adequate.
2.
Petitioner alleges that transportation is not adequate.
Petitioner's assertion focuses principally upon letters of agreement with
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- transportation providers which she characterizes as " worthless letters of intent."
This assertion is unsubstantiated. The matter of transportation letters of agreement is treated in section 2.13.2 of the task force report. He task force assessment is stated on page 2-133 of NUREG-1438 as follows:
The task force found that the transportation letters of agreement were executed with all transportation providers (except those facilities providing their own transportation) and as a group were adequate to meet the guidance of NUREG-0654. Some letters of agreement were not clear, concise, or consistent. It was unclear whether some letters were signed by someone authorized to commit irsources for the provider. Maintenance of the letters of agreement by MCDA was inadequate. When this report was prepared, llECo and MCDA were renewing the letters of agreement using a new format that they expected would ensure uniformity and clarity of commitments. The task force did not review the new LDA format.
Ilowever, MCDA has provided draft procedures to FEMA that address the maintenance of letters of agreement. Contingent upon implementation of such procedures, this aspect of the maintenance of transponation arrangements is resolved. FEMA will monitor the implementation of this procedure..
I Moreover, in reviewing material provided by Ms. Fleming on November 15, 1991, as the second supplement to her petition, I note that it includes a copy of a memorandum of November 4,1991, from Grant C. Peterson, FEMA Associate Director, to Russell F. Miller, Inspector General. Attached to that memorandum is another document labeled " Response to Document Marked Enclosure and Entitled ' Buses' or the Lack Thereof." Rather than supporting Ms. Fleming's petition, this FEMA document is an exhaustive analysis that refutes her allegation and substantiates a conclusion that transportation resources are adequate.
3.
Petitioner alleges that monitoring of schoolchildren is not adequate.
4 Apparently Ms. Fleming objects to the concept of monitoring schoolchil-g dren at reception centers if that should be necessary, llowever, this issue was squarely addressed by the task force on page 2-43 of its report, which states:
The task force finds that the concept of monitoring school children at reception centers is acceptable. This is the State's option and is not unique to Pilgrim emergency planning or to that of Massachusetts.
I imd no reason to disagree with the task force conclusion that the provisions for monitoring schoolchildren are adequate.
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1 4.
Petitioner alleges that monitoring of handicapped is not adequate.
This allegation is unfounded. Evacuees are typically monitored at reception centers. The task force confirmed that each of these centers at Wellesley, Bridgewater, and Taunton was accessible to handicapped persons. (See NUREG-j 1438 at 2-97,2-103, and 2-106, respectively.)
5.
Petitioner alleges that decontamination of handicapped is non-existent.
She cites as a basis for this allegation the following statement from page 2-125 of the task force report:
Hospitals - Understandmgs of comnutments regarding the support that hospitals wou'd provide are inconsistent.
Petitioner also cites a letter of March 7,1991, from Robert M. Hallisey of the Massachusetts Department of Public Health to Chief Carl D. O'Neil, Civil Defense Director of Duxbury. In her petition, Ms. Fleming characterizes this letter as follows.
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A March 7,1991 (the day after the trip), letter from "BECo" Bob itallisey of Massachusetts j
Dept. of Public Ilealth to Carl O'Neit of Duxbury stated, in section 5, entitled Hospitals llandling ofinjured and Handicapped Population, that the hospitals under agreement are
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strictly for injured contaminated; and that a non-injured contaminated person is not inchided j
in this grouping. To make this point perfectly clear
'lhcre is no decontamination in place for handicapped people (See enclosed copy of letter).
The Petitioner refers to a letter that reinforces the task force finding that understandings of commitments were inconsistent regarding the support that hospitals would provide. His inconsistency, however, is not related to the i
decontamination of handicapped persons, as the Petitioner infers. Rather, it f
involves having some hospitals host nursing home residents. This is quite clear in the full statement from page 2-125 of the task force report, which Ms. Fleming only partially quotes in her petition. He full statement reads as follows:
l Hospitals - Understandings of commitments regarding the support that hospitals would provide are inconsistent. Itospitals, assigned by State and town planners to receive nursing
. l home residents or other group home residents, need to reaffirm their understanding of the commitments in their letters of agreement.
The letter from Mr. Hallisey to Chief O'Neil, which Ms. Fleming enclosed with l
her petition, is actually dated March 13,1991. The relevant section of the letter reads as follows:
Hospital Handling of injured and Handscapped Populations As you know, Cluef O'Neil, this is one area of great confusion and concern to the individuals.
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it is our understandistg that hospitals only accept injured or sick individuals and our programs I
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have been directed toward assuring that there is sufficient capability nt these hospitals to handle all contaminated, injured. It is not our intent that large numbers of individuals would be sent to hospitals for this monitoring acitvity. Individuals who are not injured do not We have conducted surveys of hospitals to find out the number of injured and contaminated
'j need to be sent to the hospital for monitoring and subsequent decontarnination if necessary.
individuals that can be handled at the hospitals. We need to all strive to educate the public j
and emergency planning individuals relative to the fact that a contaminated individual is not necessarily an injured individual, nor does that individual necessarily need to go to a hospital.
As shown in Mr. Itallisey's letter (referenced above), and by FEM A staff meet-ing notes of May 16,1991 (PT-208), and a May 17,1991 memorandum from the Director of MCDA to FEMA (IT-200), the State clarified its intention with regard to the monitoring and decontamination of nursing home residents.2 Ac.
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cording to the State, nursing home evacuees would be monitored and subse-quently decontaminated,if necessary, at host nursing homes.
On this basis, the Petitioner's assertion that there is no decontamination in place for handicapped people is incorrect.
6..
Petitioner alleges that planning for evacuation of Saguish-Gurnet and Clarks Islan6 is not adequate.
It is generally acknowledged that Gurnet-Saguish' and Clarks Island can present special problems for egress. Local authorities recognize this and take it into account in emergency planning for these areas. Gurnet-Saguish is a narrow beach area locmed at the end of the Duxbury lleach peninsula in the Town of Plymouth (but physically connected to the Town of Duxbury) between 4 and 5
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miles notth of the Pilgrim Station. Saquish Neck is a barrier spit extending in a westward are from the foot of Gurnet Point. Under certain tidal conditions, j
' the egress routes from the Saguish Neck portion of the beach become flooded
. and such finding could delay evacuation.
Section 2,7 of the task force report (NUREG-1438) contains an extensive analysis and discussion of the flooding phenomenon associated with egress routes from the Saquish Neck. The task force assessment of this issue included the following on page 2-75 of its report:
Tlw NRC and FEMA believe that emergency plans that meet the planning standards and guidance criteria of NUREG-0654 are flexible enough to accommodate possible delays in cvacuation that may result because of natural phenomena; however, the actual amount of j
I 2The references l'r-208 and Pr.200, along with other task force references, are described in Appendix A of tie Pilgrim Task three report. NURFG-lO8, " Findings on lasues of offute Emergency Preparedness for Pilgrim Nuclear Power Station" Oune 1991). These referenced documents are avet.ible to ce public in NRC's Public Ducument Room in Wastungton. D C., and in the imcal Public Document Room in the public hbrary in 11ymouth.
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3Ms. Fleming refers to the area of concern as "Saquish-Gurnet." As the task force report refers to it as "Gurnet-Saguish." I have foHowed that usage.
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l'1' 11exibihty is difficult to establish and cannot be quantified. The NRC and FEM A require that l
i the emergency plans and procedures include practical and feasible measures to account for
.l expected natural conditions. Ibr Saquish Neck, these include provisions to evacuate the area at the Alert stage of an emergency,the development of a specificimplementing procedure for the area (Plymouth IP-15), warning sirens wi h loudspeakers, and radio communications with t
Plymouth's emergency response organization. In addition, there are efforts under way for l
coordination with the Town of Duxbury for assistance during an emergency. The task force concludes that the provisions in the current emergency plans provide acceptable ficxibility for the evacuation of Gurnet-Saguish.
Clarks Island is located in the Town of Plymouth about 5 miles north-northwest of the Pilgrim plant. 'Ihe Plymouth Assessor's Office gave the task force a printout listing eight residences on Clarks Island (FT-150), Unlike egress from Saguish Neck, which is affected at high tide, egress from Clark's Island is affected at low tide The task force report includes the following description of provisions for dealing with this situation l-1 Provisions for alerting and notifying the residents of Clarks Island are included in both the i
Plymouth and Duxbury emergency plans. The plans call for Clarks Island to be closed
,. at the Alert stage and for the Plymouth }Iarbarmaster to coordinate with the Duxbury llarbormaster to ensure that the Clarks Island population is advised of the closing or other protective action. Since Clarks Island is in the portion of Emergency Planning Zone (EPZ)
Subarca 12 assigned to Duxbury, the Duxbury Harbormaster is responsible for establishing
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contact wth the residents of Clarks Island by VilF radio, CB radio, or' telephone to notify i
them of th emergency (Duxbury IP-II, Draft 6, April 5,1990). If these means fail, the Duxbury H vbormaster is to dispatch a boat to notify the residents by using the public address system. (W nautical chart for the area - NOAA 13253 - shows a relatively deep channel approaching inc ;mrtheast side of the island.) In addition, two tone alert radios have been provided to the reidents on Clarks Island [NUREG-1438 at p. 2-83].
On the basis of these considerations, the task force concluded that the emergency plans provided " acceptable measures for accounting for the low tide situation at Clarks Island" (NUREG-1438 at p. 2-83).
. Although I acknowledge that tidal conditions may complicate the evac-uation of Saquish Neck and Clarks Island, should that ever be necessary, I nevertheless conclude that reasonable steps have been taken to address such contingencies in emergency planning for these places.
7.
Petitioner alleges that interfacing of plans is not adequate.
Although Ms. Fleming did not elaborate on this point in her petition, the Pilgrim Task Ihree identified coordination of plans and procedures as an area warranting attention. The task force finding in this regard is summarized on page 1-6 of its report as follows:
Plans and implementing procedures for the Massachusetts Civil Defense Agency (MCDA) and the Department of Public licahh and MCDA Area 11 need to be made consistent with c_
those of the local communities.
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- Transportation procedures need to be better coordinated among MCDA Area 11, transportation providers, and the towns.
- State plans need specific procedures to guide officials who must make protective action decisions.
This finding was also presented to the Commission in SECY-9.'-190 together with the response of the Commonwealth of Massachusetts that the responsible i
parties were addressing the finding appropriately, and it would be resolved. The Commission was also informed that FEMA would follow up on this and other items warranting attention and would give the Staff information for quarterly status reports on these open items.
In his prepared statement for the Commission's meeting of October 30, 1991, A. David Rodham, the Director of the Massachusetts Emergency Man-agement Agency, said the following on this topic:
Com nonweatrh Plans and Procedures Here are two areas under this topic which warrant discussion. The first is the coordmation of transportation procedures. Transportation procedures have been looked at very carefully by the NRC task force, FEMA Region I and FEMA Ileadquarters personnel, and the plannen who work with these procedures on a day to day basis. The changes which were identified
.during this review have been updated or will be updated to provide for more accurate and effective procedures. In addition, MEMA and Boston Edison are presently developing an administrative maintenance proadure to ensure consistent revision to the transportation procedures and data. The second area is the development of procedures on protective action decision-making. The specific procedures which provide guidance for protective action decisions are currently being reviewed by FEMA and will be evaluated during the December exercise.
In remarks prepared for that same meeting, Mr. Richard H. Strome, FEMA Regional Director, stated the following:
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The fifth area identified by the task force report concerned a lack of consistency between State and local procedures, especially in two areas: (1) transportation procedures and (2) procedures to guide officials who must make protective action decisions.
Concerning transportation proceddres, a transportation working group met in the Mas-sachusetts Emergency Management Agency Area 11 office in Bridgewater, Massachusetts, from September 9-18,1991, to update the task force assessment of the adequacy of trans-portation resources nnd to re-examine the process for managing them. The group was com-posed of t,taff of FEMA. NRC, and FEMA contractors. They rnet with representatives of
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the Massachusetts Emergency Management Agency and BECo. On October 4,1991, the' Massachusetts Emergency Management Agency issued a report responding to issues raised by the group. FEMA is still in the process of analynng its findings and the Massachusetts Emergency Management Agency response.
Concerning the area of protective action decision guidehnes, on Oeecher 1,1991, FEMA received a revised version of the Massachusetts Radiological Emergency Response Plan and 4
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. i the Massachusetts Department of Pubhc licahh Procedures contained in the Nuclear incident Advisory Team (also called NIAT) llandbook. These documents are designed to provide, among other things, guidelines and procedures for officials who must make protective action decisions. FEMA is in the process of reviewing the revised documents. The performance of Commonweahh officials in the December exercise will be evaluated against these planning i
documents.
In conclusion, since information regarding this matter is well documenttJ in the task force report (NUREG-1438), in SECY-91-190, and in subsequent status reports, and has been duly considered by the Commission,I find no basis for this al'egation.
- 8.. Petitioner alleges that public information is not adequate. The petition
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includes the following notes on this subject:
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2.14 Public Information - 2151 " FEMA will continue to review the public information materials annually."
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The "public information materials" include " Facts About Radiation" which the NRC has
.j already found flawed. Since when is FEMA expert in Radiation and the world of nuclear?
It is not clear why Petitioner is dissatisfied with the public information regarding emergency planning for the Pilgrim Nuclear Power Station. As the task force j
stated on page 2-151 of its report:
The purpose of public information material is to provide information to the public before i
an accident that it can use to protect itself from the consequences of an accident. Tle task force did not review the public information calendar for overall adequacy, since FEMA had done so. Comments on the draft calendar are reflected in the IntA review, dated Sepember 7,1990 In the final calenda,11ECo addressed ali the comments either by correcting inconsistencies, clarifying unclear passages, or removing sections (such as a i section identifying host schools) whue information was not final.
True, the task force expressed concern about one statement in the public information material, as follows:
The section," Pacts About Radiation," contains the statement,"In large doses, radiation may cause observable health problems such as flu-like symptoms or may increase the chance of health problems later in life." llowever, flu-hke symptoms are the prodrome or symptoms of the onset of the acute radiation syndrome. Accordingly, without further elaboration, this discussion of heahh effects is incomplete (The reference to " flu.like symptoms" has been removed from the 1992 calen-dar.)
'lhe task force conclusion appears on that same page of the report as follows:
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On balance, the task force concludes that the 1991 calendar meets the basic requirements of Planning Standard G and the guidance of Evaluation Criterion 1. FEMA will continue to review the public information materials armually.
I find no basis in Ms. Fleming's petition for taking issue with the task force conclusion.
9.
Petitioner alleges that direct torus vent interfacing with emergency j
planning issues are not resolved. Ms. Fleming's petition includes the following comments on this topic:
2 167 Task force assessment (direct torus vent):
. the task force is not certain that the declaration of an emergency and notification of offsite authonties would always precede activation of the DTVS.
. The task force considers it important that BECo develop and i
implement appropriate controls for its staff responsible for emergency classification." The public certainly feels this is important as well; who is making sure something is done?
During its review of this issue involving the DTVS, the task force noted I
that a general emergency would be declared at Pilgrim when the primary containment hydrogen and oxygen concentrations exceed deflagration levels or if those concentrations could not be determined to be below deflagration levels.
The operators, under these conditions, are directed to vent and purge the primary containment. The task force noted that the licensee's emergency action level (EAL) scheme, however, did not specify that the declaration of the general emergency would be based on the hydrogen and oxygen concentration levels in the containment prior to its venting.
The task force also concluded that, lacking additional documentation, the existing emergency and associated DTVS procedures may not result in the proper emergency classification and offsite notifications preceding the activation of the DTVS (NUREG-1438 at p. 2-167).
s The Boston Edison Company (BECo) acknowledged this task force finding in BECo letter 91-075, dated June 6,1991, which was incorporated along with other comments received on draft NUREG-1438 in Appendix F of the final report. The following appears as a footnote on page 2 of the BECo letter:
One of the task force's recommendations addresses Boston Edison's procedures for emer-gency classification, offsite notification and use of the direct torus vent. Task force report at
- p. 2-165. Ahhough Boston Edison believes that existing controls are adequate to ensure that emergency classification and offsite notification will precede use of the direct torus vent, we will discuss this issue further with the NRC staff.
On November 29,1991, BECo submitted a revised version of its Etner-gency Plan Implementing Procedure Manual, which incorporated the necessary clarifications to EALs 3.5.1.4 and 3.5.2.4, that directs the operator to declare a 1
1 general emergency based on hydrogen and oxygen concentrations in the con-l 285
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tainment prior to its venting.' On March 30,1992 BECo submitted to the NRC the revised portion of the Pilgrim Nuclear Power Station procedure for venting the primary containment.5 Thus, I conclude that this matter concerning direct torus venting and emergency planning has been properly resolved by the licensee and the NRC.
- 10. Petitioner alleges that congregate care facilities are not under agreement.
The petition includes the following comments on this topic:
2.96.
"No letters of agreement exist with regard to the congregate care centers. This item is being pursued by MCDA (now MEMA) and will be evaluated by FEMA in the 1991 exercise."
Evaluate what?? Ttus cenainly does not comport with NUREG 065411 A. 3. page 2-97.
"IT!MA and the NRC do not require letters of agreenrrt between the State and the Red Cross." (Maybe they don't but NUREG 0654 clearly does. [A.3, pg-32D Congregate care is not directly related to protective actions taken in the event of a radiological emergency. Congregate care, which refers to the provision of temporary housing and basic necessities for evacuees, is somewhat ancillary to more fundamental emergency planning and preparedness measures taken to protect the public in the event of a radiological emergency. The term " congregate care center" refers to a facility for temporary housing, care, and feeding of evacuees which should be located at least 5 miles, and preferably 10 miles, beyond the boundaries of the EPZ.
While noting that there were no letters of agreement with regard to congregate care centers, the task force report explains that adequate congregate care facilities are designated in comprehensive emergency management plans and umbrella agreements with the Red Cross, Furthermore, as stated on page 2-97 of the task force report:
FEMA and the NRC do not require letters of agreement between the State and the Red Cross relating to their support services in a radiological energency.
The Commission addressed this point in lemg Island I.ighting Co. (Shoreham Nuclear Ibwer Station, Unit I). CLI-87-5, 25 NRC 884. 888 (1987). There, the Commission denied Intervenor's request to reopen the record on the lack of an agreenrnt between the utihty and the American Red Cross (ARC) for its panicipation in emergency response, because the d DECO letter 91-142 from G W. Davis to U.S. NRC, November 29,1991.Ucerme DPR 35. Docket Number 50 293, "10 C.F.R, 50. Appensbx E.V.: Submirtal of Revised Emergency Plan and Emergency Plan tmplementing Procedures."
8 DECO letter 92 035 from Roy A. Anderson to U s. NRC, March 30 1992, Ucense DPR-35, Docket No. 50 293.
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ARC's charter and policy require it to auist in emergency response whether or not there is an agreenent."
The NRC and FEMA do not discourage agencies and support organizations from extending their planning and preparedness as far as they deem prudent and practicable, which may include agreements and arrangements beyond those specifically described in federal regulations and guidance. However, such actions and measures are not considered necessary or essential to adequate radiological emergency planning snd preparedness. Thus, this allegation has no me6t.
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Emergency Planning and Preparedness Is a Dynamic Process Ms. Fleming supplemented her petition with telefaxed information on Novem-ber'8,1991, that described coastal damage caused by the northeast storm of October 30,1991. Ms. Fleming asserted that Saguish Neck was now cmrently
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accessible only by boat and expressed concern that evacuation would not be j
possible during storm conditions. She also criticized exercise planning activi-ties described in a letter of October 16,1991, from A. David Rodham, Director, MEMA, to Patricia Dowd, Board of Selectmen. Duxbury.
.l Storm damage is typical of the kind of problems that demand continuing efforts and attention from local, state and federal agencies responsible for offsite emergency planning and preparedness. Persons, circumstances, and conditions affecting emergency planning and preparedness for licensed nuclear power plants are continually changing. Moreover, as noted in my earlier discussion of Gurnet Saquish, the task force pointed out that emergency plans meeting the criteria of NUREG-0654 are flexible enough to accommodate possible delays in evacuations that may result from natural phenomena.
l As far as exercises are concerned. NRC regulations in Appendix E,10 C.F.R. Part 50 require each licensee at each site to exercise its emergency plan annually and to exercise with offsite authorities so that state and local emergency plans for each operating reactor site are exercised biennially with full or partial participation by state and local governments within the plume exposure pathway EPZ. Such exercises are intended to provide training for participants and to
'The American Red Cross and the Massachusetts intgency Managenent Agency executed a new letter of agreement on April 3.1992.
7 The Commission's licensing boards have kmked at leuers of agreenrnL in Phthulelphid Utctric Co. (Limerick i
Generating station, Units I and 2). LDP-85-14. 21 NRC 1219 (19851 the Licensing Ibard addressed the concept I
af length in the context of evaluating a contention alleging that a reasonable assurance finding could not be made absent full documennmon of the existence of appropriate letters of agreenrnt with support organizations and ngencies. See id. at 1366 68.
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identify weak or de' ient areas that need correction. The NRC requires that weaknesses or deficit.cies be corrected.
CONCLUSION Ms. Fleming has failed to provide a basis for the relief she requests, namely that the Commission reconsider its approval of the task force recommendation that the NRC need not reconsider its reasonable assurance finding regarding emergency preparedness for Pilgrim Station. Because Ms. Fleming has not provided any basis for disturbing the reasonable assurance finding, her petition is denied.
A copy of this Decision will be filed with the Secretary for the Commission to review as provided in 10 C.F.R. 6 2.206(c).
FOR THE NUCLEAR REGULATORY COMMISSION Thomas E. Murley, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 19th day of November 1993.
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