ML20117G822

Nuclear Regulatory Commission Issuances for March 1996. Pages51-121

ML20117G822
Person / Time
Issue date:	05/31/1996
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V43-N03, NUREG-750, NUREG-750-V43-N3, NUDOCS 9605220426
Download: ML20117G822 (79)

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P.O. Box 37082 Washington, DC 20402-9328 a

A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.

Single copies of this publication are available from i

National Technical Information Service Springfield. / A 22161 l

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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 1

(301/415-6844)

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Vol. 43, No. 3 Pages51-121 i.

NUCLEAR REGULATORY COMMISSION ISSUANCES March 1996 h

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This report includes the issuances received during the specified period i

from the Commission (CLI), the Atomic Safety and Licensing Boards

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(LBP), the Administrative Law Judges (ALJ), the Directors' Decisions I

(DD), and the Decisions on Petitions for Rulemaking (DPRM).

j 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.

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U.S. NUCLEAR REGULATORY COMMISSION l

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Prepared by the j

Division of Freedom of information and Publications Services Office of Administration j

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

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(301/415-6844) i I

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COMMISSIONERS Shirley A. Jackson, Chairman Kemeth C. Rogers Greta J. Dieus B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety and Ucensing Board Panel i

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c CONTENTS 1

Issuances of the Nuclear Regulatory Commission CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.

(Perry Nuclear Power Plant, Unit 1)

Docket 50-440-OLA-3 ORDER, CLI-96-4, March 7,1996............

51 YANKEE ATOMIC ELECI'RIC COMPANY (Yankee Nuclear Power Station)

Docket 50-029-DCOM (Decommissioning Plan)

MEMORANDUM AND ORDER, CLI-96-5, March 7,19%....

53 Issuances of the Atomic Safety and Licensing Boards ONCOLOGY SERVICES CORPORATION (Harrisburg, Pennsylvania)

Docket 030-31765-CivP (ASLBP No. 95-708-01-CivP) (EA 94-006)

(Byproduct Materials License No. 37-28540-01)

MEMORANDUM AND ORDER. LBP-96-3, March 28,1996...... 93 RADIATION ONCOLOGY CENTER AT MARLTON (ROCM)

(Marlton, New Jersey)

Docket 30-32493-CivP (ASLBP No. 95-709-02-CivP) (EA 93-072)

(Byproduct Materials License No. 29-28685-01)

MEMORANDUM AND ORDER, LBP-96-4, March 28,1996 101 YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)

Docket 50-029-DCOM (ASLBP No. 96-713-01-DCOM)

MEMORANDUM AND ORDER, LBP-96-2, March 1,1996 61 Issuance of Director's Decision YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)

Docket 50-029 SUPPLEMENTAL DIRECTOR'S DECISION UNDER 10 C.F.R.12.206, DD-96-2, March 18,1996 109 iii

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Cite as 43 NRC 51 (1996)

CLl-96-4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Shirley A. Jackson, Chairman Kenneth C. Rogers Greta J. Dieus in the Matter of Docket No. 50-440-OLA-3 CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.

(Perry Nuclear Power Plant, j

Unit 1)

March 7,1996 i

The Commission grants the Cleveland Electric illuminating Company's pe-tition for review of the Atomic Safety and Licensing Board order, LBP-95-17, 42 NRC 137 (1995). The Board's order granted the Intervenors' motion for summary disposition and terminated the proceeding.

ORDER Pursuant to 10 C.F.R. 5 2.786(b), the Cleveland Electric Illuminating Compa-ny (Cleveland Electric) has petitioned the Commission for review of Atomic Safety and Licensing Board order LBP-95-17, 42 NRC 137 (1995). The Licensing Board's order granted the motion for summary disposition submitted by Intervenors Ohio Citizens for Responsible Energy, Inc. (OCRE), and Ms.

Susan L. Hiatt, and terminated this proceeding. The Intervenors oppose review of the decision. The NRC Staff does not oppose review. The Staff's position is that LBP-95-17 misinterprets NRC regulatory requirements and exceeds the scope of the proceeding.

The Commission has decided to grant review of LBP-95-17. The parties to the review proceeding shall be Cleveland Electric, the Intervenors, and the NRC Staff.

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1.

Within 30 days after service of this Order, Cleveland Electric and the NRC Staff may file their briefs, which shall be limited to 25 pages each.

2.

Within 30 days after service of Cleveland Electric's and the NRC Staff's

. briefs, the Intervenors shall file their responsive brief, which shall be limited to 35 pages.

1 3.

Within 15 days after service of the responsive brief, Cleveland Electric and the NRC Staff may file a reply brief, which shall be limited to 10 pages each.

In addition to the arguments the parties choose to present, the Commission directs all parties to address the significance for thu case of 5 U.S.C. 5551(8) and (9) (defining " license" and " licensing").

' Any brief in excess of 10 pages must contain a table of contents, with page references, tr:d a table of cases (alphabetically arranged), statutes, regulations, and other authorities cited, with references to the pages of the brief where they are cited. Page limitations on briefs are exclusive of pages containing a table of contents, table of cases, and of any addendum containing statutes, rules, regulations, etc.

It is so ORDERED.

For the Commission JOHN C. HOYLE

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Secretary of the Commission Dated at Rockville, Maryland, this 7th day of March 1996.

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Cite as 43 NRO 53 (1996)

CLl-96-5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Shirley A. Jackson, Chairman Kenneth C. Rogers Greta J. Dicus in the Matter of Docket No. 50-029-DCOM (Decommissioning Plan)

YANKEE ATOMIC ELECTRIC COMPANY i

(Yankee Nuclear Power Station)

March 7,1996 The Commission deelines to disqualify two Commissioners or the NRC Staff from participating in the case; indicates that it plans to review the Licensing i

Board's March I decision (LBP-96-2,43 NRC 61 (1996); suggests appropriate areas of inquiry for the parties' briefs; and keeps in place the current stay of the Board d. cision, pending Commission review of LBP-96-2.

RULES OF PRACTICE: MOTIONS FOR RECUSAL (OR DISQUALIFICATION)

It is Commission practice that the Commissioners who are subject to a recusal motion will decide that motion themselves, and may do so by issuing a joint i

decision.

RULES OF PRACTICE: MOTIONS FOR RECUSAL (OR DISQUALIFICATION)

A prohibited communication is not a concern if it does not reach the ultimate decision maker.

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RULES OF PRACTICE: MOTIONS FOR RECUSAL (OR DISQUALIFICATION)

Where a prohibited communication is not incorporated into advice to the Commission, never reaches the Commission, and has no impact on the Com-mission's decision, it provides no grounds for the recusal of Commissioners.

l RULES OF PRACTICE: MOTIONS FOR RECUSAL (OR DISQUALIFICATION) l Commission guidance does not constitute factual prejudgment where the guidance is based on regulatory interpretations, policy judgments, and tentative observations 6e: de:,e estimates that are derived from the public record.

RULES OF PRACTICE: MOTIONS FOR RECUSAL (OR DISQUALIFICATION); DISQUALIFICATION Where there are no facts from which the Commission can reasonably conclude that a prohibited communication was made with any corrupt motive or was other j

than a simple mistake, and where a Report of the Office of the Inspector General confirms that an innocent mistake was made and that the Staff was not guilty of any actual wrongdoing, and where the mistake did not ultimately affect the proceeding, the Commission will not dismiss the Staff from the proceeding as a sanction for having made the prohibited communication.

RULES OF PRACTICE: STAY OF ORDER Where the Commission issues a stay wholly as a matter of its own discretion, it does not need to address the factors listed in 10 C.F.R. 6 2.788.

MEMORANDUM AND ORDER I.

INTRODUCTION Re Petitioners in this expedited proceeding, the Citizens Awareness Network

("CAN") and the New England Coalition on Nuclear Pollution ("NECNP")

(collectively " Petitioners"), challenge the adequacy of the decommissioning plan prepared by the Yankee Atomic Electric Company ("YAEC") for its shutdown nuclear power reactor near Rpwe, Massachusetts (" Yankee NPS"). On March 1, 1996, the Atomic Safety and Licensing Board (" Licensing Board") issued a 54 l

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58-page decision dismissing Petitioners' request for a hearing on the ground that Petitioners had failed to proffer a litigable contention. See LBP-96-2,43 NRC 61 (1996) ("LBP-96-2").

Currently before the Commission are two motions filed by Petitioners:

one seeking clarification and modification of a February 27 stay order issued by the Commission and one seeking reconsideration and recission of the Commission's i

January 16 decision referring Petitioners' five proposed contentions to the Licensing Board and providing guidance on certain legal and policy questions.

See CLI-96-1, 43 NRC 1 (1996) ("CLI-96-1"). The latter motion also seeks recusal of two Commissioners and disqualification of the NRC Staff from further participation in the case.

In the instant Memorandum and Order, the Commission: (1) declines to disqualify two Commissioners or the NRC Staff from participating :n the case; (2) indicates that it plans to review the Licensing Board's March I decision and suggests appropriate areas of inquiry for the pacies' briefs; and (3) keeps in place the current stay of the Board decision, pending Commission review of the Board decision.

IL BACKGROUND OF CLI-961 On January 16, we issued CLI-96-1, in which we referred Petitioners' petition to intervene and related7 eadings to the Licensing Board with: (1) instructions t

to treat the petition as a request for a hearing: (2) guidance on selected issues including Petitioners' proposed Contention A; and (3) a proposed expedited schedule. At the same time, the Secretary issued a separate document, entitled

" Notice of Appointment of Adjudicatory Employee and of Communication Covered by 10 C.F.R. 5 2.781(c)" (" Notice"), which advised the parties: (1) that a member of the NRC Staff had been appointed as an adjudicatory employee; and (2) that there had been a communication in violation of the separation of functions restrictions contained in 10 C.F.R. 6 2.781(a) and that this communication was being placed on the record in accordance with 10 C.F.R. 6 2.781(c).

The Notice informed the parties that the communication had occurred between a member of the NRC Staff and a member of the Office of the General Counsel

("OGC"), which was advising the Commission on the preparation of CLI 96-1.

In addition, the Notice advised the parties that the communication related to Petitioners' proposed Contention A and attached a memorandum describing the On Irbruiry 21 the Board had announch from the bench its intent to issue an order disnussing the proceedmg I

in its entirety by atmut March I. On February 27 the Comnussion issued an ainicipatory order staymg the effectiveness of the Board's impending decision 55 i

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l commumcation. Finally, the Notice stated that the communication did not affect the advice OGC rendered to the Commission, did rot result in a change to the language in any proposed draft of CLI-96-1, and was itself not communicated to the Commissioners or any of their personal staffs before the Commission issued CLI 1.

l On January 26,1996. Peitioners filed their motion for reconsideration and l

rescission of CLI-96-1. First, Petitioners challenge the guidance we provided to the Licelising Board on proposed Contention A, arguing that we " prejudge [d]

l contested facts," Motion for Reconsideration at 1, based "on ex parfe communi-

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l cations and other factual inforination which petitioners have not had the oppor-l tunity to controvert." /d. at 2. As a result, Petitioners contend, the Commission j

has "grieviously prejudiced [their] opportunity for a full and fair hearing... "

Id. See gem ally id. at 7-15. Moreover, argue Petitioners, because the guidance was based upon "an ex parfe communication,"2 the Commission should rescind that guidance. Id. at 15-18.

Second, Petitioners argue that, based upon the facts as stated in the Notice.

the Commission sliould issue an Order directing the Staff to show cause why it should not be dismissed as a party from the proceeding as a sanction for the conduct identified in the Notice. See generally id. at 18-19. Third, the Petitioners argue that Chairman Jackson and Commissioner Rogers should recuse themselves from any further consideration of this case because the guidance on proposed _ Contention A prejudged factual issues and rested on an improper commtinication (despite the Notice's statement to the contrary). See generally id. at 20-21.

III. ANALYSIS A.

Commission Recusal We begin with an analysis and discussion of the third issue, whether Chair-man Jackson and Commissioner Rogers should recuse themselves from further proceedings in this matter.3 2 The comnuuncanon at issue took place in violacon of the Comrrussmn's Rules on "separanon of functions."

not its rules agasant "ex parte communicauons." as the Pennoners nustakenly state. De Nouce idenuhed a commumcahon between (1) an NRC employee who was parucipatmg in an adjudicatory proceeding oh behalf of the staff and (2) an NRC employee who was advising the Conurussion regarang its adjudicatory funcuons.

Accor6ngly, the commumcanon violated the "separauon of functmns" restnet.cas of 10 C.F.R.12 781(a) not the es parte restnetmns of 10 C.F R.12.780(aHe). The latter provismn apphes to communications from ournde the NRC; the former apphes to commumcations from wuhm the NRC 3 Comnussioner thcus took of6ce on February 15.1996. well after the events that serve as grounds for Peutoners' request for recusal transpired. Comnussignet Ihcus took no part in those events, &d not parucipate in CLI-96-1.

and, accor&ngly, presumes that Peuuoners' monon for recusal is not addressed to her, Therefore. Comnussioner Dieus ed not parucipate in Part A of this &scussion.

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Separation of Functions Violation We first address the separation of functions violation as an asserted ground for recusal. Petitioners offer no facts supporting their motion to recuse because of the separation of functions violation other than those apparent from the Notice.

Ibr the reasons stated below, the facts as stated by the Notice do not warrant i

recusal by the Commissioners from this proceeding.

On January 16, the same day that CLI-96-1 and the Notice were issued, the j

Commission's Office of the General Counsel ("OGC") forwarded the Notice to the Acting Inspector General of the Commission for any appropriate action.

OGC also provided a copy of the Petitioners' motion to the Office of the Inspector General ("OIG"). The Commission's OIG has the duty and obligation to conduct independent audits and investigations ander the Inspector General Act of 1978, as amended, Pub. L. 95452,5 U.S.C. App. See generally 10 C.F.R.

I1.12(d). The OlG promptly initiated an investigation into the circumstances of the communication at issue and completed that investigation on February 23, i

1996.

The OlG's Report ofInvestigation provides a complete record as to how and why that communication occurred.' As is clear from the Notice and confirmed by the Report, the communication was not provided - either directly or indirectly

- to Chairman Jackson or Commissioner Rogers, or to any of their personal staffs, prior to the decision to issue CLI-96-1. See generally OIG Report at i

12,13. Thus, there inr tio factual support for Petitioners' assertion that the communication was "implictly relied on." Motion for Reconsideration at 16.

A prohibited communication "is not a concern if it does not reach the ultimate decision maker" Press Broadcasting Co., Inc. v. FCC, 59 F.3d 1365,1369

- (D.C. Cir.1995), citing ATX, Inc. v. U.S. Department of Transportation, 41 F.3d 1522,1527 (D.C. Cir.1994), and Peter Kiewer Sons' Co. v. U.S. Army Corps of Engineers 714 F.2d 163,170-71 (D.C. Cir.1983).

Moreover, we would also observe that an essential thrust of the NRC Staff j

communication - that the ALARA doctrine should not be applied in reviewing a licensee's choice of decommissioning option - is inconsistent with the Commission's assumption in CLI-96-1 that an ALARA challenge to a licensce's j

decommissioning option choice can properly be made if an adequate basis is provided. See CL1-96-1,43 NRC at 7.

In accordance with Conunission practice. Chairman Jackson and Comnussioner Rogers decided the recusal motion for themselves Therefore. Part A is the jomt decision of Chairman Jackson and Conutissioner Rogers.

sec losep41. Mucksal CL1-89-18. 30 N,RC 167,169 70 (1989)(following an idenucal practice responding to a request for recusa!L Pans B and C represent a collegial Comnussion decision.

• A copy of the Repun of Invesuganon has now been released to the public and has been provided to the parues with stus Memorandum and Order.

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In sum, because the' communication was made only to the General Counsel and had no apparent influence on either OGC's advice to the Commission or on the Commission's decision, it provides no grounds for the recusal of Chairman Jackson or Commissioner Rogers.

2.

Alleged Prejudgment of Contested Facts Petitioners also argue that Chairman Jackson and Commissioner Rogers should be disqualified because they have improperly prejudged contested facts, particularly on the question whether the SAFSTOR decommissioning option results in significant dose savings. As explained below, this argument is premised on a misreading of CL1-96-1 and, because no prejudgment of contested facts took place, Joes not call fcr recusal. One will searcl CLI-96-1 in vain, for example, for any " factual" finding regarding the projected SAFSTOR dose savings for the Yankee facility.

It is clear and uncontestable from the rulemaking record supporting the Commission's decommissioning rule, and from the GEIS5 in particular, that the dose estimates in the rulemaking record associated with DECON and SAFSTOR are based on generic estimates for plants larger than Yankee Rowe that have undergone no prior decommissioning. It is no prejudgment for the Commission merely to observe in CLI-96-1 that different dose estimates "may" be expected for Yankee Rowe, and that the dose differences between SAFSTOR and DECON are "likely" to be lower and "could" be less than 900 person-rem - or "perhaps" not much at all given Yankee Rowe's smaller size and the fact that Yankee Rowe ha; already been partially decommissioned. It is also no prejudgment for the Commission to note the obvious uncertainties attending these estimates.

The Commission also offered guidance in CLI-96-1 that a challenge to the Licensee's choice of the modified DECON option cannot be based solely on differences in estimated collective occupational doses on the order of magnitude of the estimates in the rulemaking GEIS. This is not a finding of fact; it is an interpretation of the NRC's decommissioning and ALARA regulations and rests on an analysis of the regulatory policies underlying those regulations.

As CLI-96-1 notes, those regulations treat DECON as a generally acceptable alternative despite the acknowledged likelihood of reduced occupational dose under SAFSTOR, and call for a weighing of various factors in addition to the magnitude of estimated exposure in deciding ALARA.

Although not necessary for the decision, the Commission also noted that its guidance was consistent with its current policy judgment that exposures are considered ALARA when further dose reduction would cost more than $1000 5 The Genenc Environmental Impact statement, or "GEIS."is NUREG-0586, issued in August 1988 in conjunction mth the promulganon of 10 C F R. Il50.75 and 50 82. See generally 57 Fed Reg 24.051 Oune 27.1988).

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or $2000 for each person-rem reduction achieved. Such policy judgments do not prejudge contested facts. Further, the use of cost estimates appearing in Petitioners

• own pleadings merely constitutes an analysis of the basis proffered for a contention and does not constitute a merits conclusion on the validity of those estimates.

Finally, the Commission stated in CL1-96-1 that its guidance regarding regulatory significance of a dose reduction on the order of 900 person-rem associated with switching to SAFSTOR was not applicable if "there is some extraordinary aspect to the case not apparent to us from the pleadings that the Licensing Board may uncover on its own review." CLI-96-1, 43 NRC at 9.

This statement alone puts to rest any concern about prejudgment since it left sufficient leeway for the Licensing Board to reach its own initial conclusion if the record so warranted.

In sum, regulatory interpretations and policy judgments, and tentative ob-servations about dose estimates that are derived from the public record, are not factual prejudgments. Furthermore, the Commission provided the Licensing Board with sufficieht flexibility to consider the matters in dispute consistent with the Commission's rules. Thus, Petitioners' allegations of prejudgment constitute no basis for recusal of Chairman Jackson or Commissioner Rogers.6 B.

Dismissal of Staff as a Party Petitioners offer no faits beyond the " Notice" to support their argument that the Staff should be dismissed from the proceeding. But there are no facts in the Notice from which we could reasonably conclude that the communication was made with any corrupt motive or was other than a simple mistake. Moreover, the OIG Report confirms that an innocent mistake was made and that the Staff i

is not guilty of any actual wrongdoing. Scc generally OlG Report at 7-12,13.

We are unwilling to order a dismissal of Staff from the proceeding on the basis of a mistake that ultimately did not affect the proceeding. Thus Petitioners' request for the Commission to order Staff to show cause why it should not be dismissed as a party to the proceeding is denied.

C.

Commission Appellate Review of LBP-96-2 and the February 27th Stay Order Under 10 C.F.R. 5 2.714a(a), Petitioners have the right to appeal the Licensing Board's March I decision to dismiss their contentions, LBP-96-2, and we

" As explained below. howeser, as pan of its review of !_BP 96 2. the Comnussion will consider Petitioners' arguments that its guidance was unsound on its ments. See, e p., Motion for Reconsideranon and Rescission at 9-15 59

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anticipate that they wili do so. On appeal, the parties' briefs may address all issues bearing on the Licensing Board's decision, including the applicability of the Commission's guidance in CLI-96-1 and any issues related to reconsidering that guidance not decided in today's order. See note 6, supra.

Because of the complex and novel decommissioning issues involved in this case, we issued an anticipatory stay of LBP-96-2 on February 27th and now have decided, wholly as a matter of discretion,7 to keep that stay in effect i

pending completion of Commission review of the Licensing Board's decision.

l See Sacramento Afunicipal Utility District (Rancho Seco Nuclear Generating l

Station), CLI-93-3,37 NRC 135,152 (1993). In addition, if the Commission affirms LBP-96-2, it will follow its customary practice of issuing a short l

housekeeping stay to facilitate orderly judicial review. See, e.g., Sacramento Afunicipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 NRC 47,61 (1992).

l IV. CONCLUSION i

For the foregoing reasons, Petitioners' Motion for Reconsideration and Partial Rescission is denied insofar as it seeks Commission recusal and Staff disqualifi-cation. The Commission will review LBP-96-2 after appeal and briefing under 10 C.F.R. 6 2.714a. The effectiveness of LBP-96-2 is hereby stayed pending that review.

It is so ORDERED.

For the Commission JOHN C. HOYLE Secretary of the Commission Dated at Rockville, Maryland, this 7th day of March 1996.

7 YAEC argues that the tradmonal stay (acturs under 10 C F R l2 788 do not support a stay in this case. See tjcensee's Response to NECNP'CAN's "Mouon for Clanhcanon and Modiheauon of Cumnussion's February 27 1996 stay order." hied March I.1996 As we do not act under secuon 2.788. we murnate no view on ttus quesuon.

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Atomic Safety and Licensing Boards issuances I

4 ATOMIC SAFETY AND UCENSING BOARD PANEL l

B. Paul Cotter, Jr.,* Chief Administrative Judge James P. Gleason

• Deputy Chief Administrative Judge (Executive)

Fred ___erick J. Shon,* Deputy Chief Administrative Judge (Technical) l l

Members Dr. George C. Anderson Dr. Richard F. Foster Dr. Kenneth A. McCoNom l

Chades Bechhoefer*

Dr. David L Hetrick MarshaN E. Miner Peter B. Bloch*

Emest E. Hill Thomas S. Moore

• G. Paul Bollwerk 111*

Dr. Frank F. Hooper Dr. Peter A. Morris Dr. A. Dixon Calkhan Elizabeth B. Johnson Timmas D. Murphy *

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Dr. James H. Carpenter Dr. Charles N. Kolber*

Dr. Richard R. Partzek i

Dr. Rchard F. Cole

• Dr. Jerry R. Kline*

Dr. Harry Rain Dr. Thomas E. Elleman Dr. Peter S. Larna Laster S. Rubenstem Dr. George A. Ferguson Dr. James C. Lamb til Dr. David R. Schink l

Dr. Harry Foreman Dr. Ernmeth A. Luebke Dr. George F. Tidey l

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Cite as 43 NRC 61 (1996)

LBP-96-2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

G. Paul Bollwerk, Ill, Chairman Dr. Jerry R. Kline Dr. Thomas S. Elleman

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in the Matter of Docket No. 50-029-DCOM (ASLBP No. 96-713-01-DCOM)

YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)

March 1,1996 In this proceeding concerning challenges to various aspects of the decom-missioning plan for the Yankee Nuclear Power Station, based on guidance fur-nished by the Commission in CLI-96-1,43 NRC 1 (1996), the Licensing Board concludes that the citizen groups petitioning to intervene have established their standing but have failed to present a litigable contention, which requires that the proceeding be dismissed.

RULES OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT; ZONE OF INTERESTS)

To comply with the basic standing requirements, a petitioner must demon-strate that (1) it has suffered or will suffer a distinct and palpable harm that constitutes injury-in-fact within the zone of interests arguably protected by the governing statute; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable decision. See CLI-96-1, 43 NRC at 6.

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RULES OF PRACTICE: STANDING (REPRESENTATIONAL);

STANDING TO INTERVENE (AUTHORIZATION)

When an organization seeks to intervene on behalf of its members, that entity must show that it has an individual member who can fulfill the necessary elements to establish standing and who has authorized the organization to represent his or her interests. See CLI-96-1,43 NRC at 6.

RULES OF PRACTICE: STANDING TO INTERVENE (NUCLEAR POWER REACTOR DECOMMISSIONING)

Intervenor organizations established their standing to intervene and seek relief regarding alleged health and safety or environmental injuries that may be visited upon their members who reside and engage in various activities in the area within 10 miles of a nuclear facility to be decommissioned. Because some, even if minor, public exposures can be anticipated from the decommissioning process, the Licensing Board is not "in a position at this threshold stage to rule out as a matter of certainty the existence of a reasonable possibility" that decommissioning might have an adverse impact to those, such as petitioners

• members, who live or recreate in such close proximity to the facility, or use local waste transportation routes. Virginia Electric and Power C9. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522,9 NRC 54,56 (1979).

RULES OF PRACTICE: STANDING TO INTERVENE (ADMISSIBILITY OF CONTENTIONS)

Petitioners who have established their standing to present a contention that seeks modification or rejection of a nuclear facility decommissioning plan so as to avoid health and safety or environmental injury to the public also can pursue any contention alleging such modification / rejection relief based on circumstances such as purported occupational exposure to facility workers from decommissioning activities. See CLI-96-1,43 NRC at 6.

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

Under 10 C.F.R. 5 2.714(b)(2)(ii)-(iii), to be admissible a contention must contain a specific statement of an issue of fact or law raised or controverted in a proceeding that is supported by a " basis" of alleged facts or expert opinions, together with references to specific sources and documents that establish those facts or opinions. The basis,must be sufficient to show that a genuine dispute exists with the applicant on a material issue of fact or law Moreover, while the intervenor need not prove its case at the contention stage or present factual 62

l support in affidavit or evidentiary form sufficient to withstand a summary j

disposition motion, it nonetheless must make a minimal showing that material facts are in dispute such that a further inquiry is appropriate. And, of course.

any contention must fall within the scope of the issues set forth in the notice of opportunity for hearing on the proposed licensing action. See Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12,42 NRC 111,117-

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18 (1995).

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RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

DECOMMISSIONING: CONTENTIONS (ADMISSIBILITY)

In challenging the contents of a decommissioning ;,an fashioned pursuant to 10 C.F.R. 5 50.82(b)(1), (2), a contention not or.ly must allege some content deficiency in the decommissioning plan, but that this purported deficiency has some health and safety significance for the decommissioning process as a whole.

Put another way, to craft a litigable contention faulting a decommissioning plan for a' deficiency in content, besides providing a basis sufficient to question the plan's accuracy, there must also be a showing that a genuine disputed material issue of fact or law exists about whether the purported shortcoming has some tangible negative impact on the overall ability of the decommissioning process outlined in the plan to protect the public health and safety. Cf Public Service Co.

of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-942,32 NRC 395, 414 (1990)(contention that purported emergency planning exercise deficiency precludes a finding of reasonable assurance that protective measures can and will be taken must show that exercise revealed more than minor or isolated flaw in plan and that plan flaw can only be remedied through significant plan revision).

DECOMMISSIONING: FINANCIAL ASSURANCE (ADMISSIBILITY OF CONTENTIONS)

A litigable contention asserting that a reactor decommissioning plan does not comply with the funding requirements of 10 C.F.R. 6 50.82(b)(4) and (c), must i

show not only that ore or more of a plan's cost estimate provisions are in error, "but that there is not reasonable assurance that the amount will be paid." CLI-96-1,43 NRC at 9. A petitioner must establish that some reasonable ground exists for concluding that the licensee will not have sufficient funds to cover decommissioning costs for the facility.

RULES OF PRACTICE: CONTENTIONS (RESPONSE TO OBJECTION TO ADMISSION)

A petitioner should be permitted to respond to challenges to a contention before the contention is dismissed. See Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565,10 NRC 521, 525 (1979).

NEPA: RULE OF REASON The " rule of reason" governing National Environmental Policy Act (NEPA) interpretation provides that an agency need not consider " remote and speculative risks. Limerick Ecology Action v. NRC, 869 F.2d 719. 739 (3d Cir.1989).

RULES OF PRACTICE: CHALLENGE TO COMMISSION REGULATIONS; CONTENTIONS (CHALLENGE OF COMMISSION RULE)

A contention basis concerning a transportation cask accident that relies on a report postulating an accident scenerio with conditions that fall within the parameters of 10 C.F.R. 6 71.73(c) governing cask accident test conditions is not subject to dismissal under 10 C.F.R. 9 2.758 as improperly challenging that accident test conditionTegulation.

RULES OF PRACTICE: CONTENTIONS (SUPPORTING DOCUMENTATION)

A document put forth by an intervenor as snpporting the basis for a contention is subject to scrutiny both for what it does and does not show. When a report is the central support for a contention's basis, the contents of that report are what are before the Board and, as such, is subject to Board scrutiny, both as to those portions of the report that support an intervenor's assertions and those portions that do not.

NEPA: REMOTE AND SPECULATIVE EVENT Because only accident scenarios that are not " remote and speculative" need be the subject of a NEPA analysis, if the information in any intervenor-proffered document regarding such a scenario fails to indicate that this threshold has been crossed, then a contention ch,all,enging NEPA compliance based on a failure to analyze that scenario need not be admitted. See Vermont Yankee Nuclear Power 64

I i

Corp. (Vermont Yankee Nuclear Power Station), ALAB-919,30 NRC 29,44-47 (1989), remandedfor additionalfindings, CLI-90-4,31 NRC 333 (1990).

4 MEMORANDUM AND ORDER (Denying Petition to Intervene)

By a petition to intervene and supplemental intervention petition dated I;

November 30,1996, the Citizens Awareness Network, Inc. (CAN), and the New England Coalition on Nuclear Pollution (NECNP) ask that the agency convene an adjudicatory hearing. As their intervention petition makes clear, in that hearing Petitioners wish to challenge the validity of various health and safety and environmental aspects of the decommissioning plan proposed by Licensee Yankee Atomic Electric Company (YAEC) for the Yankee Nuclear Power Station (YNPS or Yankee Rowe) located in Franklin County, Massachusetts, near the town of Rowe. The Commission referred their intervention petition to the Atomic Safety and Licensing Board in a January 16,1996 memorandum and order. See CLI-96-1,43 NRC 1 (1996). In doing so, the Commission directed that the Board rule on CAN's and NECNP's standing to intervene and the admissibility of the five contentions they have proffered and then conduct any further proceedings.

In response to the Coininission's referral, on February 21,1996, we conducted a prehearing conference regarding Petitioners' standing and their contentions.

See Tr. at 1234. At the conference, counsel for Petitioners, YAEC, and the NRC Staff made oral presentations and answered Board questions regarding various aspects of these matters.' At the conclusion of these presentations, we advised the participants that the Board intended to issue a finding that CAN and NECNP have standing to intervene in this proceeding but that they have failed to present any litigable contentions. Below, we set forth our formal rulings on the issues of standing and the admissibility of their contentions.

L BACKGROUND The CAN/NECNP petition that is now before us was filed in response to an October 26,1995 Commission notice of consideration of issuance of an order and opportunity for hearing regarding the YAEC plan for decommissioning the I The Commonwealth of Massachuseita, which notified the Comnussion of its intent to participate in ttus proceedmg as an interested governmental entity pursuant to 10 C.F R. I 2.715(c). decided not to take part in the preheanng conference. See tener from Leslie Greer. Assistant Attorney Gen., Commonwealth of Massachusetts.

to the Licensing Board (Irb. 22. 1996).

65

- - - -. ~.

Yankee Rowe facility. See 60 Rd. Reg. 55,%9 (1995). As is detailed in that notice and prior Commission notices and issuances regarding the plan, see 60 Fed. Reg. 46,317 (1995); CL1-95-14,42 NRC 130 (1995), the October 26 notice was a direct response to a July 1995 directive from the United States Court of Appeals for the First Circuit requiring that a hearing opportunity be afforded to CAN and other interested persons prior to agency approval of the YAEC decommissioning plan.

As is outlined in the circuit court's opinion, Cifizens Awareness Network, Inc.

v. NRC, 59 F.3d 284, 28840 (1st Cir.1995), after a February 1992 declaration ofits intent permanently to cease operation of Yankee Rowe, YAEC obtained a possession-only license that revoked its authority to operate the facility. See 57 Rd. Reg. 37,558 (1992). In October 1992, prior to the submission of a facility decommissioning plan or decommissioning environmental report, YAEC proposed that the agency approve an "early component removal project" (CRP).

Under the terms of the CRP, the utility would be permitted to dismantle and remove various reactor components that would account for some 90% of the nonfuel, residual r'adioactivity at the facility. YAEC proposed shipping some of these items to the low-level radioactive waste (LLRW) disposal facility in Barnwell, South Carolina, for permanent disposal and storing others in the facility Spent Fuel Pit. Although CAN disputed the propriety of this request and asked for an adjudicatory hearing, in January 1993 the Commission, through the vehicle of a Staff _ Requirements Memorandum, adopted a new policy on decommissioning that sanctioned the CRP. YAEC then began to dismantle the facility and make shipments to the Barnwell LLRW facility in accordance with the CRP.

CAN continued to assert that it was entitled to a hearing on the CRP and facility decommissioning and ultimately initiated the circuit court litigation ref-crenced above. Meanwhile, in December 1993 YAEC submitted a decommis-sioning plan and environmental report concerning Yankee Rowe. See Yankee Atomic Electric Company, Yankee Nuclear Power Station Decommissioning Plan (rev. 0.0 Dec.1993); Yankee Atomic Electric Company, Decommissioning Environmental Report (Dec.1993) [ hereinafter Environmental Report). In its plan, YAEC proposed to implement a modified version of the so-called DE-CON decommissioning option, under which it would seek to complete decom-missioning on a more expedited basis than is the case under the other avail-able decommissioning alternative, the longer duration SAFSTOR option.2 After 2 tn the final genene environmental impact statement on nuclear facihty decomnussiomng. the Staff outhned four decomnussionmg alternatives: no action. DECON. SAFsToR. and ENTOMB. DECoN is the alternative in which site radioactive contanunants are removed or decontanunated to a level that pernuts the property to be released for unrestncted use shonly after operauons cease. Under SArSToR. a facihty is placed and maintamed I

in a condition that allows the facshty to be stored safely and.ubsequently decontanunated to levels that pernut (Consmurd) 66

conducting a review of these documents and supplemental materials submitted by YAEC, in Rbruary 1995 the Staff issued an order - accompanied by a safety evaluation report and an environmental assessment - that approved the YAEC decommissioning plan. See 60 Fed. Reg. 9870 (1995); see also Safety Evaluation Report by the [NRC] Related to the Request to Authorize Facil-ity Decommissioning, Yankee Nuclear Power Station, Yankee Atomic Electric Company, Docket No. 50-29 (Rb.14,1995) [ hereinafter SER]; Environmental Assessment by the [NRC] Related to the Request to Authorize Facility Decom-missioning, Yankee Nuclear Power Station, Yankee Atomic Electric Company, Docket No. 50-29 (Dec.14,1994) [ hereinafter EA]. The decommissioning plan subsequently was adopted as two volumes of the facility's Final Safety Anal-ysis Report. See Yankee Atomic Electric Company,1-2 Final Safety Analysis Report, Yankee Nuclear Power Station, Rowe, Massachusetta (rev. June 1995)

[ hereinafter FSAR).

With CAN's circuit court litigation victory in July 1995, the Commission instituted a reassessment of CAN's hearing requests and the Staff's approval of the YAEC decommissioning plan. This resulted in the reinstatement of the Commission's prior policy prohibiting " major" decommissioning activities prior to approval of a decommissioning plan and the issuance of the October 26,1995 notice of opportunity for hearing referenced above. See CLI-95-14,42 NRC at 136. CAN and NECNP responded to the notice with the November 30, 1995 intervention petition now before the Board.

Rather than referring the petition immediately to a Licensing Board, the Commission decided to consider the petition and any answers thereto. After receiving responses to the petition from YAEC and the Staff and a reply to those responses from Petitioners, the Commission issued its January 16, 1996 memorandum and order, CLI 96-1. In addition to referring the petition to the Board, that issuance provides the Board with guidance concerning CAN's and NECNP's standing to intervene and the admissibility of their Contentions A, C, and D, and directs that this adjudicatory proceeding be expedited.

release for unrestncted use. ENTO',*B is the ahernative in which fae hty radioacuve contanunants are encased in a structurally long lived matena' such as concrete, and the facihty then is maintamed in this state, under surveillance, unul radioactivity dei sys to a level penstung release of the property for unrestncted use See office of Nuclear Regulatory Resea.ch, U.S Nuckar Regulatory Comm*n, Final Genene Environmental Impact Statement on decomnussiomng of nuclear facihues NUREG 0586, at 2 5 to 6 (Aug 1988).

As is noted in the Staff's environnental assessment, the ENTOMB and "no acnon" options are not considered viable alternauves for Yankee Rowe. See Environmental Assessnent by the (NRC) Related to elm Request to Authonze Facihty Decomnussiomng, Yankee Nuclear Power stauon, Yankee Atonne Electne Company, Docket No. 50-29 at 4-5 (Dec,14,1994) [ hereinafter EA). Instead, as outhned in the YAEC decomnussiomng plan, the facihry would imually be placed in a safe storage condmon to allow acerss to a low-level radioactive waste facihty, to be followed by implementanen of the DECoN ahernative See Yankee Atomic Electne Company, i Fmal safety Analysis Report, Yankee Nuclear Power station. Rowe, Massachusetts at 2 3 (rev. June 1995).

Although YAEC has labeled this as a modified SAFSToR opuon, the staff refers to it as a modified DECoN ahemnove. Compare M at 3 wuh EA at 2-3. We use the Staff's designanon in this Mencandum and Order.

67

In connection with our determination regarding Petitioners' standing and contedons, in addition to the Commission's guidance issuance, see CLI 1,43 NRC at 5-9, the Board no* has before it the following pleadings:2 1.

[CAN/NECNP] Petition to Intervene and Supplemental Petition to Inter-vene (Nov. 30,1995) [ hereinafter Intervention Petition].

2.

Licensee's Answer to [CAN/NECNP] Petition to Intervene and Sup-piemental Petition to Intervene (Dec. 15,1995) [ hereinafter YAEC Re-sponse].

3.

NRC Staff's Response to Petition to Intervene and Supplemental Petition

, to Intervene Filed by [CAN/NECNP] (Dec. 20,1995) [ hereinafter Staff Response].

4.

[CAN/NECNP] Reply to Licensee's and NRC Staff's Responses to Their Petition to Intervene and bupplemental Petition to unervene (Dec. 24, 1995) [ hereinafter CAN/NECNP Reply].

5.

Ibrther Reply of [YAEC] to [CAN/NECNP] Reply to Licensee's and NRC Staff's Responses to Their Petition to Intervene and Supplemental Petition to Intervene (Jan. 25,1996) [ hereinafter YAEC ReplyJ.

6.

NRC Staff's Reply to [CAN/NECNP] Reply to Licensee's and NRC Staff's Answers to Their Petition to Intervene (Jan. 25,1996) [ hereinafter Staff Reply].

In ruling on Petitioners' intervention petition and contentions, we first address the question of their standing to intervene, and then deal with their contentions seriatim.

]

II. STANDING As the Commission noted in CLI-96-1,43 NRC at 6, to comply with the basic standing requirements a petitioner must demonstrate that (1) it has suffered or will suffer a distinct and palpable harm that constitutes injury-in-fact within the zone of interests arguably protected by the governing statute; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable decision. Moreover, when, as here, an organization such as CAN or NECNP seeks to intervene on behalf of its members, see Intervention Petition at 2, that entity must show that it has an individual member who can fulfill these necessary elements and who has authorized the organization to represent his or her interests. See CLI-96-1,43 NRC at 6.

I 3 hems I through 4 were tiefore the Cannessma when it issued Ct.1%I In CLI.%1. the Comnussion also directed the Board to consider pending YAEC and Staff requests for leave to hie a reply to item 4. Sec 43 NRC at 4 al herns 5 and 6 are the hhngs that were subnutted after the Board granted those requests. See Board order drutial Preheanns Order) Dan. 22.1996) at 1.

68 i

In this instance, to meet these requirements Petitioners have supplied the affidavits of CAN and NECNP members who reside within ten miles of and recreate along local waterways that receive effluent discharges from Yankee Rowe. See Intervention Petition, attachs.1-5. Several of those members further assert that they regularly use area roads that may be employed by trucks carrying waste away from the Yankee Rowe facility. See id., attachs.1-2, 4-5. These organization members also express concern in their affidavits about the impacts of Yankee Rowe decommissioning activities and mishaps upon their health and safety and upon the local environment and they authorize CAN and/or NECNP to represent their interests in this proceeding. See id., attachs.1-5.

The Staff and, at least in its initial response, the Licensee did not contest these organizations' standing to intervene in this proceeding to raise public health and safety or environmental challenges to the YAEC deco.amissioning plan. Both YAEC and the Staff did, however, contest Petitioners' standing to pursue several of their contentions that challenge the YAEC decommissioning plan based upon purported health and safety impacts, such as occupational doses, to Yankee Rowe workers. See Staff Response at 6 & n.5; YAEC Response at 2-3.

Taking note of this challenge to the scope of Petitioners' standing, in CLl-96-1 the Commission stated that "once a party demonstrates that it has standing to intervene on its own accord, that party may then raise any contention that, if proved, will afford the party relief from the injury it relies upon for standing."

43 NRC at 6 (citationJ pmitted). And, with regard to this proceeding, the Commission werit on to observe:

Assunung arguendo that the Licensing Board determines that Petitioners do indeed have standing to intervene in this proceeding, they will then be free to assert any contention, which. if proved, will afford them the relief they wek, i.e., the rejection or modification of the [YNPS) decommissioning plan in a manner that will redress their asserted injuries.

Id.

In its reply pleading filed after the Commission issued CLI-96-1, YAEC asserts that, in light of the Commission's guidance in CL1-96-1 regarding de-commissioning dose exposures, Petitioners' reliance on public exposure doses that were substantially less than occupational doses should be considered insuf-ficient to give them standing to intervene as to any aspect of their contentions, including facility worker impacts. See YAEC Reply at 4-6. The Staff, on the other hand, suggests that on the basis of the guidance in CLI-96-1, Petitioners have standing to pursue all aspects of their contentions, including those relating to occupational impacts. See Staff Reply at 4.

We conclude CAN and NECNP have established their standing to intervene and seek relief with respea to alleged health and safety or environmental injuries that will be visited upon their members who reside and engage in 69

various activities in the area near to, but outside of, the Yankee Rowe facility.

Given that some, even if minor, public exposures can be anticipated from the decommissioning process, see Office of Nuclear Regulatory Research, U.S.

Nuclear Regulatory Comm'n, Final Generic Environmental Impact Statement on decommissioning of nuclear facilities, NUREG-0586 (Aug.1988) at 4-7 to -8

[ hereinafter FGEIS]; EA at 22-24, we do not find ourselves "in a position at this threshold stage to rule out as a matter of certainty the existence of a reasonable possibility" that decommissioning might have an adverse impact to those, such as Petitioners' members, who live or recreate in such close proximity to the facility, or use local waste transportation routes. Virginia Electric and Power i

Co. (North Anna Nuclear Power Station, Units I and 2), ALAB-522,9 NRC 54, 56 (1979). As such, Petitioners have standing to present any contention that seeks modification or rejection of the YAEC decommissiomng plan so as to avoid health and safety or environmental injury to the public.' And, as the Commission's guidance in CLI-96-1 indicates, 43 NRC at 6, they also can pursue any contention alleging such modification / rejection relief based on circumstances such'as purported occupational exposure to Yankee Rowe workers from decommissioning activities.S With Petitioners' standing thus established, we consider the five CAN/

NECNP contentions.

~ III. CONTENTIONS Under 10 C.F.R. 6 2.714(b)(2)(ii)-(iii), to be admissible a contention must contain a specific statement of an issue of fact or law raised or controverted in a proceeding that is supported by a " basis" of alleged facts or expert opinions, together with references to specific sources and documents that establish those facts or opinions. The basis must be sufficient to show that a genuine dispute exists with the applicant on a material issue of fact or law. Moreover, while the intervenor need not prove its case at the contention stage or present factual 4 Although Petiooners also have asserted they have standing to htigaie worker occupanonal exposure, see CAN/NECNP Reply at 3-4. based on the record before us, their assertions of pubhe exposure through contact with YAEC workers and possible employment of orgamzation members at the Yankee Rowe facihty are too speculative to support such standing.

8 As the Comnussion's guidance suggests, if an orgatuzauon representing a member of the pubhc is able to gain standing in a decomnunsiosung proceechng based on a showing ofinjury to that mdividual relaung for example, to the chonee of a decomnussionmg option. the organizauon would not be barred on standing grounds from hugaung a contennon that a change in the decomnussiotung opuon is appropnale because of the occupauonal exposure to workers at the facihty. Although such an intervenor cannot use purported injury to facihty workers as basis for its standing, once its own standing has been estabbshed it can use purponed injury to others as a basis for obtaining the rehef it seeks. i e-. a change in the chpice.of deromnussioning opuen We would add that, viewing the bases for Pennoners' comennons that relate to worker occupauonal expmures in hght of the Comnussion's guidance, we see no need to rule on Peuuoners' ahernauve request that they be granted discreuonary standing relauve to those portons of their contendom.

70

l 1

i support in affidavit or evidentiary form sufficient to withstand a summary disposition motion, it nonetheless must make a minimal showing that material facts are in dispute such that a further inquiry is appropriate. See Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12,42 NRC i11, 117 18 (1995). And, of course, any contention must fall within the scope of the issues set forth in the notice of opportunity for hearing on the proposed licensing action, see id., which in this instance is "whether an order approving the [YAEC Yankee Rowe] decommissioning plan should be issued," 60 Fed.

Reg. at 55,070. We assess Petitioners' contentions under these standards.

A.

CAN/NECNP Contention A Petitioners' first contention reads as follows:

l CONTENTION A: YAEC's proposed decommissioning plan violates 10 C.F.R.

(20.110t in that it fails to niaintain occupational and public radiation doses as low as reasonably achievable.

Intervention Petition at 7 (emphasis in original). Petitioners provide two " bases,"

with accompanying "subbases," for this contention, which can be summarized as follows:

(1) YAEC's choicEtif the DECON decorrunissioning option does not meet the standard of "as low as reasonably achievable" ( ALARA) because it fails to account for the significant dose savings to the public and facility workers that accrue under the SAFSTOR option through onsite storage for thirty years, particularly taking into account:

(a) delays in the avadabihty of a federal disposal facility for high-level radioactive waste (HLRW) that will postpone release of the site for unrestncted use, thereby negatmg one of YAEC's expressed bases for choosing DECON with its higher occupational exposures; (b) the higher cost of DECON based on (i) the present value of the cost of de-commissioning, (ii) proposed cost savings related to waste volume reduction dur-ing SAFSTOR, and (iii) improved decommissioning knowledge and understanding gained from other decommissioning efforts during the extended storage period fa.

vor the adoption of SAFSTOR; and (c) the hkehhood of significant near-term personnel turnovers that undermine YAEC's aaumption that DECON increases the potential for taking advantage of experienced plant personnel.

(2) Likely unavailahihty of a United States Department of Energy (DOE)-developed multi-purpose canister for the onsite storage, transportation, and offsite disposal of HLRW and greater than Class C waste means that if YAEC closes its Spent Fuel Pit in 1999 and goes 'o dry cask storage, it is left with waste transfer options 71

T between onsite storage casks and transponation casks that will raise occupational exposures significantly beyond those outlined in its decommissioning plan.

See id at 9-14; see also CAN/NECNP Reply at 9-19. Both YAEC and the Staff oppose the admission of this contention on a variety of grounds. See YAEC Response at 6-16; Staff Response at 10-18; see also YAEC Reply at 7 8.

j In this instance, we need not linger long over the arguments of the parties regarding the admissibility of this contention. In CLI-96-1, while declaring that

)

it was "not prepared at this time to put the Licensee's choice of a decommission-

{

ing option forever beyond all challenge," the Commission nonetheless declared i

that, given Petitioners' reliance on dose reductions from using SAFSTOR rather than YAEC's chosen DECON option that were within the boundaries set forth in comparirg the DECON and SAFSTOR options in the agency's FGEIS, there appeared to be no basis for concluding that the alleged dose reductions "can have ALARA significance." 43 NRC at 7,9. The Commission indicated, how-ever, that its conclusion in this regard was subject to the qualification that there might be "some eitraordinary aspect to the case not apparent to us from the pleadings that the Licensing Board may uncover on its own review." /d. at 9.

During the prehearing conference, Petitioners detailed what they asserted i

were three " extraordinary circumstances" relative to Contention A: (1) the Commission's use in CLI-96-1 of a guidance document rather than a regulation to quantify the value,of, avoided radiation doses in comparing the DECON and SAFSTOR options; (2) Commission misapprehension in CL1-96-1 about

)

the degree to which Petitioners agree with YAEC regarding the estimated costs of decommissioning; and (3) the Commission's conclusions regarding the difference for occupational doses likely to occur from using the DECON and SAFSTOR options. See Tr. at 33-36. As the Board noted during the prehearing conference, these are identical to some of the bases Petitioners put forth in support of a pending motion for reconsideration of the Commission guidance provided in CLI-96-1. See id. at 36; see also [CAN/NECNP] Motion for Reconsideration and Partial Rescission of CLI-96-01, Request for an Order to Show Cause Why the NRC Staff Should Not Be Dismissed from This Proceeding, and Request for Recusal of Commissioners (Jan. 26,1996) at 9-12, 13-15.

Because these are matters pending with the Commission that contest the validity of a Commission decision, we find them inappropriate for Board consideration. Further, based upon our own review of the parties' pleadings and their oral presentations at the prehearing conference, we have not identified any other " extraordinary aspect" of the case that vitiates the Commission's conclusion about the ALAR,A significance of the purported SAFSTOR dose 72 s

l reductions.' We thus find that Petitioners have failed to provide support for their l

Contention A sufficient to establish a disputed material factual or legal issue mentmg further inquiry,7 Accordingly, we dismiss this contention.

B.

CAN/NECNP Contention B i

l Petitioners' second contention provides:

l CONTENTION B: The proposed decommissioning plan for [ Yankee Rowe] does j

not adequately describe YAEC's planned deconumissioning activities or its controls l

and liasits on procedures and equipenent, in violation of 10 C.F.R. 6 50.82(b)(1) and (2).

Intervention Petition at 14 (emphasis in original). Petitioners again provide

)

several bases, with subbases, in support of this contention. As bases for this contention, Petitioners assert that the plan is inadequate because it is unreasonable in its assumptions that:

(1) An LLRW repository will be available in Massachusetts by 2003.

(2) The spent nuclear fuel now stored in the onsite Spent Fuel Pit will be transferred to onsite dry cask storage by 1999 and then shipped to a DOE HLRW repository l

by 2018.

See id. at 15-16.

With regard to the first assumption, citing purported difficulties in Mas-sachusetts and elsewhere with siting an LLkW repository and a recent guberna-torial proposal to eliminate the Commonwealth's LLRW repository siting board and negotiate contracts for out-of-state disposal, Petitioners maintain that the plan must be revised to accommodate (a) a lengthy delay in in-state site avail-ability, and (b) the possibility of out-of-state shipment to a distant repository "In reviewing this and the other proposed contentions, we think it is important to bear in mind several points regarding commercial nuclear reactor decommissioning. one is that, in contrast to the construcuon pernut and operating licensing actionc that brought Yankee Rowe into existence, there is not a "no action' alternative in connection with facihty decommissiomng. It clearly is Comnussion policy that all commercial nuclear facihties will be decommissioned. See 10 CFA is0.82(r) (facihty license will be ternunated only if facihty has been decomnussioned in accordance with decomnussioning plan or agency order authonzing deconunissiomng).

Moreover, as the Cumnussion made clear in CLI-961,43 NRC at 8, both the DECON or SAFsToR alternauves generally are acceptable neans of decommissioning, at least so long as the alternative chosen can be accomplished within 60 years. See 10 C F R. 4 50 82(bXIXi). Also, because the choice between these ahernatives involves a balancing of various factors, the possibihty of occupational and pubhc radiauon exposures - while an important concern -is not necessarily the controlhng element. See Cl1-96-l,43 NRC at 7.

7 Basis 2 for Contenuon A empresses a concern about the possible need to transfer spent fuel from the Spent Fuel Pit to dry cask storage and the ocaupanonal doses that will result. See Intervenuon Peution at 13-14 To the extent this basis nught be read to present concerns about the appheation of ALARA outside of the general issue of the choice between the SAFSToR and DECoN decommissioning opuons, as our discussion with regard to Contenuon B, Basis 2(bHc) indicates, it would i,ot provide for a hugable contention. See infra pp. 79-80.

73 i

site. See id. at 15-16; see also CAN/NECNP Reply at 19-22. Concerning the second assumption, Petitioners describe a series of alleged problems that require plan supplementation:

(a) The plan's cost estimates and its IILRW storage duration assumption that a repository will be available and all Yankee Rowe waste will be interred by 2018 should be revised in light of (i) DOE repository loadmg figures indicating that in 2033 half the Yankee Rowe fuel assemblies would still be onsite awaitmg transfer for disposal; and (ii) 1993 General Accounting Office (GAO) congressional testimony regarding a 1993 GAO report that estimates a DOE IILRW repository opening will not occur until between 2015 and 2023.

See intervention Ittition at 16-17; see also CAN/NECNP Reply at 22-24.

(b) The plan does not provide sufficient information regardmg the nature of YAEC's proposed onsite spent fuel dry storage facihty, including a failure to commit to a particular type of dry storage cask. See Intervention Petition at 17; see also CAN/NECNP Reply at 24-26.

(c) The plan does not address how, given the apparent lack of a multi-purpose canister, spent fuel and greater than Class C waste can be safely transferred from dry cask storage to transportation casks after the Spent Fuel Pit is closed after 1999. See Intervention Ittition at 17-18; see also CAN/NECNP Reply at 24-26.

(d) Because existing facihty Technical Specification 3.2 limits cask usage over the Spent Fuel Pat to a shipping cask weighing less than thirty-five tons and the multi-purpose canister i

or other possible storage / transportation casks will weigh in excess of seventy-five tons, the plan is incomplete until it incorporates a discussion of a technical specification change that includes an analysis of potential cask drop accidents using the heavier casks. See Intervention Fetition at 18-19; see also CAN/NECNP Reply at 26.

Once again, both YAEC and the Staff challenge all the Petitioners' grounds for seeking admission of this contention. See YAEC Response at 16-19; Staff Response at 18-21; YAEC Reply at 8-9.

Section 50.82(b)(1), (2) of 10 C.F.R. states in pertinent part that a proposed decommissioning plan must include "[t}he choice of the alternative for decom-missioning with a description of the activities involved," and "[a] description of controls and limits on procedures and equipment to protect occupational and public health and safety." This broad language, it would seem, leaves consid-erable discretion to the Licensee and the agency in terms of what a plan must contain.

Indeed, various commenters during the rulemaking that culminated in the adoption of this language expressed a concern about its lack of specific re-quirements, particularly in connection with the discretion afforded licensees to develop a plan. See 53 fid. Reg. 24,018,24,024-25 (1988). In adopting a final rule, the Commission declared that the existing requirements of NRC regula-tions that would be applicably to decommissioning (including the provisions of 10 C.F.R. Parts 20,50,61,70,71, and 73), in conjunction with a regulatory guide and a standard review plan (SRP) being developed to provide guidance on 74

information that would have to be submitted in a reactor decommissioning plan, should provide sufficient criteria to determine what is an acceptable plan. See id. at 24,025. Unfortunately, in the intervening 8 ', cars neither the regulatory guide nor an SRP has been developed for a reactor decommissioning plan, see Tr. at 83-84, 97, which leaves us without specific guidance when it comes to determining exactly what a decommissioning p'an must contain to fulfill the requirements of section 50.82(b)(1)-(2).

Nonetheless, in providing guidance to the Board on Petitioners' Contention i

C, which concerns the adequacy of the cost estimate provisions in the decommis-sioning plan pursuant to 10 C.F.R.150.82(b)(4), the Commission has furnished a set of interpretative principles that appear equally applicable to the plan's other provisions. In its January 16 memotandum and order the Commission indicated that a contention challenging the " reasonableness of a plan's cost estimate provisions would not be sufficir:nt because the potential relief would be no more than "the formalistic redraft of the plan." Rather, the Commission declared, the petitioner must show not only that one or more of a plan's cost estimate provisions are in error, "but that there is not reasonable assurance that the amount will be paid." CLI-96-1,43 NRC at 9.

What the Commission appears to be saying with this guidance is that, notwith-standing a licensee's general oblignion to provide the agency with complete and accurate information, an allegation that some portion of a decommissioning plan's cost estimate prayisions must say something different or something more is not, in and of itself, an acceptable basis for a contention challenging the ad-equacy of the estimate. Rather, in the context of an adjudicatory challenge to a decommissioning plan's cost estimate provisions, an allegation about the plan's completeness or accuracy is werthy of further inquiry only if it is coupled with a showing that the alleged def ciency has some independent health and safety significance (e.g., that the additional amount attributable to inaccurate cost esti.

mates cannot be covered by de Licensee's funding proposal).

Nothing in the Commission's memorandum and order indicates that the application of this guidance is limited to the cost estimate provisions of a decommissioning plan. In the context of our inquiry under Contention B, this guidance translates into a requirement that a contention must not only allege j

some content deficiency in a decommissioning plan, but that this purported deficiency has some health and safety significance for the decommissioning process as a whole ' Pat another way, to craft a litigable contention faulting i

l a decommissioning plan for a deficiency in content, besides providing a basis s Ciung the need for pubhc undesstanding and accountabihty relauve to a decomnussioning plan Pentioners have assened that an allegauon the a plan is not accurate in sone matenal respect is sufheient to provide an adnussible contenuon. See Tr, at 75. A4 hough such an argument appears equally appheable to the quesuon of the accuracy of cmt estimates. the Conr.ussion's Contenuon C guidance suggests that thss is not a controlbng consideration relauve to the hogabihty of a contennon alleging plan inaccuracies.

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n a

i sufficient to question the plan's accuracy, there must also be a showing that a genuine disputed material issue of fact or law exists about whether the purported shortcoming has some tangible negative impact on the overall ability of the decommissioning process outlined in the plan to protect the public health and safety. Cf Public Service Co. ofNew Hampshire (Seabrook Station, Units 1 and 2), ALAB-942,32 NRC 395,414 (1990)(contention that purported emergency planning exercise deficiency precludes a finding of reasonable assurance that protective measuces can and will be taken must show that exercise revealed more than minor or isolated flaw in plan and that plan flaw can only be remedied j

through significant plan revision).

We turn then to considering each of the bases put forth by Petitioners under this standard. Regarding the Basis I allegation that YAEC's reliance on the availability of an LLRW repository in Massachusetts make:, me plan deficient, we need not address at this juncture the question of the " reasonableness" of the Licensee's reliance on earlier statements by the Commonwealth about an LLRW repository because it is apparent that the necessary showing regarding the health and safety impact of such reliance has not been made by Petitioners.

Besides raising the issue of costs, which we address in our discussion of Petitioners' other cost concerns under Contention C, Petitioners contend that YAEC's reliance on an in-state LLRW repository has a negative impact on the plan because it does not account for waste and facility maintenance over a potentially lengthy period of delay. Yet, as the Staff points out, the discussion i

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of safe storage in the plan does not bear this out. See Staff Response at 19.

There is nothing in the plan's description of the maintenance program during the safe storage period to indicate that it is necessarily limited to short-term storage or that it could not or would not be adequate for long-term storage if such a need arose ' See 1 FSAR at 9,200-2 to -3. Petitioners point to no substantive deficiencies in the plan that would preclude long-term storage, but rely instead on the assertion that such a deficiency must exist because under the Licensee's proposed schedule such storage is not needed. See CAN/NECNP Reply at

22. Consistent with the Commission's guidance, however, we are not willing to accept the proposition that a scheduling inaccuracy or revision necessarily results in a litigable deficiency in planning, at least without some showing as to how the purported schedule change would have a substantive impact on public health and safety.

The same is true of Petitioners' assertion that the YAEC plan is deficient because it does not contain a discussion of the possibility of out-of-state shipment to a distant repository. Both the YAEC plan and its environmental report include a discussion about requirements governing, and offsite radiological

'In fact. as tjeensee pointed out at the preheanng conference. YArC has charactenzed its plan as utihung the SANToR option See Tr. at 92. ser afm supra note 2.

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t impacts resulting from, the shipment of radioactive materials. See 1 FSAR at 402-1; 2 id. at 514-6 to -7; Environmental Report at 5-4 to -5. In fact, the YAEC environmental report declares that "[s]ince the total shipment-miles for transportation of radioactive waste from decommissioning [ Yankee Rowe]

is significantly less than those assumed by the [F]GEIS, the risk to the health and safety of the public from decommissioning [ Yankee Rowe] is bounded and determined to be acceptable by the [F]GEIS." Environmental Report at 5-5; see also id. at 4-15 to -16. Nothing Petitioners have provided suggests that the shipment of low-level waste to distant states, such as Texas or California, encompasses health and safety considerations beyond those covered in the decommissioning plan or the environrnental report.'8 As such, this transportation concern affords no basis for admitting Contention B.

Turning next to their noncost bases regarding oruite and offsite HLRW storage," we note that some question exists regarding Petitioners' ability to raise health and safety and environmental matters relating to spent fuel. Statements in the regulations and the FGEIS indicate that decommissioning is not to be deemed to include

• the operational activities of "the removal and disposal of spent fuel." See 10 C.F.R. 5 50.75(c) n.1; FGEIS at 2-5. Assuming, however, that their present bases are not excluded by reason of this apparent limitation, with the seeming admissions of both the Licensee and the Staff that any estimate of when an HLRW repository will be open has a high degree of uncertainty, see YAEC Response at 17_ Staff Response at 19, the 1993 GAO testimony and the a

1992 DOE capac'ity report arguably do present at least a genuine factual dispute about when all Yankee Rowe spent fuel will be interred in a repository. See Intervention Petition at 16-17 & nn.35-36. In its response, the Staff makes the point that in reviewing the plan's provisions relating to storage of spent fuel, it concluded that, consistent with the provisions of 10 C.F.R. 6 51.23(a),'2 the acceptable period during which the Licensee could use any combination of wet or dry spent fuel safe storage methods runs through 2030. See Staff Response 30 Ahhough Petiuoners also make reference to the need for a discussion of the "logisucs" of &stant transport, see CAN/NECNP Reply at 22. they fail to show how this would require any discussion different from what the plan now has with regard to offsite transfer of radioacuve matenals. which clearly is contemplated. see. e g. I FsAR at 402-1.

"To the degree they rely on HLRW cost factors to support tius contennon we deal with those claims in the contett of Coniention C.

12 Section 5123(a) of 10 C F R. provides:

The Comnussion has made a genenc deternunation that. if necessary, spent fuel generated in any reactor can be stored safely and without signi6 cam environmental impacts for at least 30 years beyond the hcensed hfe for operation (which may include the term of a revised or renewed bcense) of that reactor at its spent fuel storage basin or at either onsite er offsite independent spent fuel storage instalianons. Further. the Comnussion beheves there is reasonable assurance that at least one mined geologic repository will be available wittun the 6rst quarter of the twenty-6rst century. and sufhcient repository capacity will be available wittun 30 years beyond the hcensed hfe for operation of any reactor to dispose of the commercial tugh-level waste and spent fuel onginaung in such reactor and generated up to that time.

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at 19 (citing SER at 22-23). While this bounding date is well in excess of the Licensee's estimate of 2018, it is not in excess of Petitioners' DOE /GAO-based estimate of 2033 or beyond. This suggests that there is a litigable contention, at least as to this basis.

The strictures of 10 C.F.R. 9 2.714(d)(2)(ii) lead us to conclude this is not the case, however. Under that section, we must refuse to admit a contention that, even if proven, "would be of no consequence in the proceeding because it would not entitle petitioner to relief." In this instance, relief for Petitioners would come in the form of a further plan analysis of whether the spent fuel can be stored safety for a period beyond 2030. Yet, even assuming Petitioners are correct that the schedule for the HLRW repository would result in spent fuel remaining on site at Yankee Rowe beyond 2030, the Commission has already

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made a generic judgment that seemingly bounds their concern.

Section 51.23(a) of 10 C.F.R. states the Commission's conclusion that spent fuel can be stored on site " safely and without significant environmental impacts for at least 30 years beyond the [ reactor's] licensed life for operation." In i

the statement of considerations accompanying the final rule that adopted this provision, the Commission also provided its judgment that "[o]n the basis of experience with wet and dry spent fuel storage and related rulemaking and licensing actions, the Commission concludes that spent fuel can be safety stored without significant environmental impact for at least 100 years, if necessary."

$5 Fed. Reg. 38,474._38,513 (1990). In the case of Yankee Rowe, this would encompass HLRW onsite storage through a date far beyond any that Petitioners have suggested should be considered. Given this Commission view, the supposed difference in HLRW storage dates relied on by Petitioners, even if proven, would not afford them any meaningful relief."

Concerning subbases (b)-(d) of Basis 2 that challenge the manner and means of onsite storage of spent fuel, even assuming such assertions are not precluded by the previously-described limitation that decommissioning is not to be considered to include the removal and disposal of spent fuel, Petitioners once again have failed to make any showing regarding the health and safety significance of the supposed deficiencies in the plan. The plan indicates that onsite dry cask storage is an option that is being explored and may well be used, but that uncertainty about matters such as availability of a multi-purpose canister has caused YAEC to defer making any decisions about how this option will be implemented. See 1 FSAR at 6-7. Petitioners' concerns about YAEC's lack of specificity in describing its choice of onsite storage options if the Spent U in their reply pleadmg. Peuuoners assert that the staff's (and presumably the Commission's) analysis regar&ng the safety of long-term onsite storage is not suf6cient in this case because the YAEC decommissioning plan would need to contam nmch more specihc information about such storage plans, See CAN/NECNP Reply at 24 n.59.

Without a more detailed explananon regar&ng the health and safety impacts of not incluang this information. we And this assertion insufficient to estabhsh a &sputed matenal issue of fact concermng the content of the plan.

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Fuel Pit is closed and how YAEC will accomplish the transfer of HLRW if dry

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cask storage is used -including the possibility of using a dry tansfer method j

and the need for a change in existing facility Technical Specification 3.2 limits on cask usage over the Spent Fuel Pit - all are based on the premise that the lack of any detailed description establishes a substantive deficiency in the decommissioning plan that can be litigated in this proceeding.

We are unable to agree. The agency's decommissioning plan regulations provide that if there is a delay in a major dismantlement activity because of a l

decision to place a facility in storage, planning for such activities may be less detailed, with the caveat that updated detailed plans must be submitted later and approved prior to the start of the activities. See 10 C.F.R. 9 50.82(d). A similar principle appears relevant in this instance.

As the Staff points out, YAEC's use of dry cask s,orage is subject to the requirements of 10 C.F.R. Part 72. See Staff Response at 15. This would include the provisions of 10 C.F.R. 9 72.40 as they relate to the licensing of an independent spent fuel storage installation (ISFSI). See Tr. at 108-10. Thus, when and if YAEC chooses to close its Spent Fuel Pit and move to dry cask storage, that choice must undergo an agency approval process that provides for, among other things, consideration of whether there is compliance with ALARA objectives and a public hearing opportunity regarding the ISFSI application.

See 10 C.F.R. it 72.4A(d),72.46; see also Sacramento Municipal Utility District (Rancho Seco Nuclear G;oerating Station), LB P-93-23, 38 NRC 200,246 (1993)

(given pendency of separate proceeding regarding ISFSI, contention asserting decommissioning plan environmental assessment inadequate because of lack of analysis for ISFSI emissions not admissible).

In addition, an agency approval process exists relative to YAEC's choice of a storage cask. Prior to being utilized, a cask design undergoes certification through the agency approval process in 10 C.F.R. Part 72, Subpart L. Then, under the general licensing provisions governing the use of certified casks, prior to employag the cask YAEC would be required to make a written determination that, among other things, operational restrictions have been established to meet ALARA objectives and YAEC's activities do not involve any unreviewed safety issues or technical specification changes that would require a license amendment (and be subject to an adjudicatory hearing). See 10 C.F.R. Il 72.104, 72.212(b)(2), (4).

In connection with Petitioners' concern about the lack of a multi-purpose canister and YAEC's possible use of a dry method to transfer spent fuel and other HLRW from a nontransportation cask to a transportation cask, its own description of this possibility portends the need for an agency approval process.

The dry transfer method highlighted by Petitioners is still in the development stage by DOE and another utility and apparently has not been reviewed by the NRC. See Intervention Petition at 18; CAN/NECNP Reply at 25 n.63; Tr.

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at 112-13. As such, at least as presented by Petitioners, this transfer method constitutes an activity involving an unreviewed safety issue that, whether as part of the ISFSI licensing process or otherwise, would need agency approval (and bc subject to an adjudicatory hearing). See 10 C.F.R. Il72.40(a)(5), (13),

72.46,72.48(c),72.212(b)(4).

And as with the use of dry cask storage, an agency approval process also i

is involved prior to the transfer of spent fuel from the Spent Fuel Pit into the storage casks. As all the parties agree, with the limitations it imposes, Technical Specification 3.2 must be changed before this can be accomplished.

See Intervention Petition at 18, YAEC Response at 19, Staff Response at 20.

i This, in turn, would require a license amendment that, under existing agency

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regulations, would be subject to challenge in an adjudicatory hearing by any intervenor w.ta standing and litigable contentions. See 10 C.F.R. 6 50.59(c).

Rus, with regard to YAEC's choice to utilize dry cask storage, YAEC's j

choice of a cask type, YAEC's choice to employ a dry transfer method, and YAEC's choice to change Technical Specification 3.2, there is another agency approval process ihat must be followed prior to undertaking any of these activities. Given these later approval mechanisms, all of which may provide i

for an adjudicatory hearing, we are unable to conclude that the alleged lack of detailed discussion in the decommissioning plan regarding these possible activities establishes there is a disputed material issue of fact or law regarding a significant health, and safety deficiency in some aspect of the decommissioning process such that litigation on Contention B should go forward.84 This, combined with Petitioners' failure to make the requisite showing regarding any of the other bases put forth in support of Contention B, requires that we dismiss this contention as well.

C.

CAN/NECNP Contention C The third CAN/NECNP contention is stated as follows:

CONTENTION C: The proposed decommissioning plan for [ Yankee Rowel does not comply with the decommissioning funding requirements of 10 C.F.R. 6 50.82(b)(4) or (c).

Intervention Petition at 19 (emphasis in original). Further, Petitioners provide four separate bases (and some subbases) for this contention, which can be synopsized as follows:

34 We note that in putting forth these bases for Contenuon B. Petitioners have not suggested there is any technical or legal reason YAEC win be unable to obtain the addmonal agency approvals required 80

l (1) The YAEC decommissioning cost estimate for Yankee Rowe required by 10 C.F.R.

I 50.82(b)(4) is inadequate because:

1 (a) it is based on the unreasonable assumption that an LLRW site will be available j

in Massachusetts by the year 2003; a

1 (b) if its assumption that DOE-supplied multi-purpose canisters will be available l

for dry storage is incorrect, which is hkely YAEC will have to purchase casks that will add as much as $8.5 million to decommissiomng costs; (c) it is based on the unreasonable assumption that an HLRW repository will be available in time to complete spent fuct shipments by 2018; (d) the 12.3 percent contingency factor used to cover unforeseen future develop-i nents is grossly inadequate; and

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(e) it does not include the costs of lead, mercury. and asbestos at atement.

(2) The decommissioning cost estimate does not provide a companson of the cost estimate and the amount of funds presently available for decommissioning.

(3) The decor,nmissioning plan fails to provide sufficient inforrmtion to demonstrate that any of the three funding sources mentioned ~ contributions made under the provisions of the existing Power Contracts between YAEC and its former power customers contnbution investnents earnings, and tax loss carrybacks - will assure the availability of the funds needed to meet all decommissioning expenses.

(4) The decommissioning plan does not provide an adequate description of the trust account created to hold the 1%er Contract revenues.

See Intervention Petition at 20-27; see also CAN/NECNP Reply at 26-32.is YAEC and the Staff once more contest the adequacy of each of these bases.

See YAEC Response at 19-23; Staff Response at 21-22; YAEC Reply at 9-1I; Staff Reply at 5-7.

As we noted in connection with Contention B, see supra p. 75, the Com-mission has provided us with certain guidelines regarding the admissibility of this contention. In its January 16 memorandum and order, the Commission stated that, in and of itself, a contention challenging the " reasonableness" of a decommissioning plan's cost estimate provisions was not litigable "because the potential relief would be the formalistic redraft of the plan with a new estimate."

CLI-96-1,43 NRC at 9. Rather, the Commission declared, the Petitioners must show not only that one or more of a plan's cost estimate provisions are in error, "but that there is not reasonable assurance that the amount will be paid." Id.

Thus, under these Commission guidelines, Petitioners must establish that some isla their intervenoon request. Pentioners gm the second, tlurd, fourth, and fifth subbases of Basis I nurnencal designations and the second, third, and fourth bases for Contenuon C alphabetical deugnanons. ser latervennon Peuuan at 2122. 25,27. To be conustent with the designanons given to the bases for Peuuonen' other contentions, we refer to the second, third, and founh bases by nunser and to the subbases of Basis i by letter.

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reasonable ground exists for concluding that YAEC will not have sufficient funds to cover decommissioning costs for the Yankee Rowe facility.

Acting on this Commission guidance, we look first to Petitioners' third basis contending that the plan does not adequately assure the availability of funds to cover all decommissioning costs. Although Petitioners challenge some aspect of each of the three sources for funding outlined in the decommissioning plan, relative to the Commission's guidance one funding source appears to be of preeminent concern. This is an agreement - referred to as the Power Contracts

- between YAEC and the ten New England utilities to which YAEC formerly supplied the electrical output of Yankee Rowe.

As described in the plan, the Power Contracts obligate these former power purchasers to pay the full costs of decommissioning Yankee Rowe, including spent fuel. See 2 FSAR at 501-2. As the plan makes clear, based on this agreement the lideral Energy Regulatory Commission (FERC) has approved a series of orders that permit YAEC through the year 2000 to make collections from its former power purchasers to fund decommissioning work. See id.

Moreover, both YAEC and the Staff assert that under the terms of this agreement those purchasers have a continuing obligation to pay the cost of Yankee Rowe decommissioning in full.'6 See YAEC Response at 22; Staff Response at 21-22.

Petitioners' challenge to the adequacy of the Power Contracts as a decom-missioning funding source rests on the ground that "the mere existence of a contract does not condusively establish the ability and willingness of the [for-mer power purchasers] to pay all costs, regardless of how high or reasonable."

CAN/NECNP Reply at 31 (footnote omitted). As evidence there are material factual disputes in this regard, they point to several factors, including (1) state-ments made by YAEC in a 1988 FERC ratemaking case suggesting that some of the power purchasers have financial problems that will prevent them from meeting their contractual obligations; (2) the possibility that if YAEC were to mismanage its other two fund sources - investments from contributions and tax loss carrybacks - power purchasers could challenge their obligation to pay l' As set forth in YAEC's December 15,1995 pleading, the entical language of the Power Contracts is as follows:

This cuantract shall wnsmae un fullforce and efect untui the etparation of any licenar as issued bv the Nuclear Regulators Commesswn. or any successor agency, wuth respect to the plant under applicable provisions of the Atonue Energy Act of 1954. as amended from ume to ume, provided. however thal af the stockholders of Yankee [0 e., the ten power purchasers)} by vote of not less than 75% in interest of the outstanding stock havmg general voung nghts. shan at any ume vote to disconunue the operanon of the plant or to hquidate Yankee and wind up its affairs. the obhgauons of the parues hereunder shall thereupon ternunale Notwithstandung the foregomg, the appiscable promions of shn contract shall contmue us efect after any termmaswn hereof to the extent necessary I'il to complete the britmgs and payments required hereunder with respect to the Customer's obitgaswn to par uts powerpercentage of the full cost of Jecommisswning the plant m accordance herewsth YAEC Response at 22 e 67 emphasis supphed in pledng). YAEC also declares that this provision. which apparently was not quoted or otherwise set forth in the YAEC decomnussiomng plan, was included with a pubhcly available July 25, l990 lettet that was subnutted ta the staff as part of the decomnussiomng review process. See id.; Tr. at 121.

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1 the full cost of decommissioning; and (3) the possibility that power purchasers may contest their obligation to pay the full cost of decommissioning because they did not have the full benefit of revenues from Yankee Rowe operation due to its premature shutdown. See id. at 31-32 & n.81.

i None of these purported deficiencies is sufficient to create a material factual dispute concerning the ability of the power purchasers to honor their existing contractual obligation to fund Yankee Rowe decommissioning fully." In con.

nection with the 1988 FERC ratemaking case, Petitioners note that YAEC sought to turn aside an FERC staff attempt to lower its rate of return by establishing, among other things, that various risks associated with the operation of those util-ities that were its power purchasers merited YAEC's then existing higher return rate. The case, however, is not sufficient to support Petitioners' assertion given l

that the FERC categorically rejected YAEC's risk arguments relative to the pur-i chasers, a determination the Commission subsequently reiterated.88 See Yankee l

Atomic Electric Co., 40 FERC 161,372,1987 WL i18208, at *19 *20 (FERC 1987); Yankee Atomic Electric Co., 67 FERC 161,318,1994 WL 270437, at

• 17 *18 (FERC l'994). Petitioners

• assertions that the power purchasers might,

default on their obligations in the event of YAEC fund mismanagement or be-cause they did not receive the benefit of full lifetime operation of Yankee Rowe also are insufficient because those claims lack any factual support relating to l

the power purchasers. Petitioners have failed to place these allegations outside i

the realm of mere speculation so as to warrant further inquiry.

Petitioners thus have not established there is any disputed material factual or legal issue regarding the ability of the power purchasers to meet their existing contractual obligation to pay all the costs of Yankee Rowe decommissioning.

U YAEC and the $taff mamtain that because these speci6c assertions were made in Petitioners' reply 6hng rather than in their intervention peuuon, these claims can be considered only if they rneet the addmonal admission requirenents in 10 C.F.R. I2.714(a) govermng late-Aled contennons See YAEC Reply at 10 staff Reply at 5-6 We conclude Petitioners' asseruons fall within the realm of a response to the YAEC and Staff challenges to their contenoons, which should be penmtted prior to &smissmg a contention, see Houston Lighting and Power Ca (Allens Creek Nuclear Generstmg Stauen, Umt 1), ALAB 565,10 NRC 521,525 (1979), rather than consututing a formal amendment of their supplemental peticon to intervene that, under the terms of the Comnussion's notice of opportumry for heanng, are 60 fed. Reg. at 55.078, would require an assessrnent of the late-Aled factors in section 2.714(a).

18 la response to a Board inquiry dunng the preheanng conference about spec 6c evidence of a power purchaser's inabihty to nret its obhgation that was &scussed in the 1987 FERC decision, Peuuoners identined only the nsk of the bankruptcy of power purchaser Pubhc service Company of New Hampshire (PSNH). owner of the Seabrook Stauon nuclear facihty. See Tr. at 141. We 6nd this is not a suf6cient basis for Peutioners' contention given the fact that, as was noted in the FERC's 1994 decision on YAEC funang, such status had no effect on PSNH's conunued abihty to make payments to YAEC. See Lakee Atomer flerrric Ca, 67 FLRC 161,318.1994 WL 27N37, at *17 (FERC 19%).

i Dunng the prehearing conference, the Board also asked a number of questions regar&ng the TERC raremakmg process relauve to the power purchasers' obhgations under the Power Contracts. Although Peti:ioners suggested dunng the conference that some of tle responses created material factual &sputes regarang the suf6ciency of the Power Contracts as a funang snurce, are Tr. at 142, 145-46, we do not consider anything we heard on this I

subject dunng the preheanng conference suf6cient to create a matenal factual espute relauve to the suf6ciency I

of the Power Contracts as a deconmussiomng fun &ng source l

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Because Petitioners have failed to mount an adequately-supported challenge to this full-funding obligation - the centerpiece of YAEC's reasonable assurance I

showing - we conclude that, consistent with the Commission's guidance in CLI-96-1, we need give no further consideration to Petitioners

• additional assertions about particular deficiencies in the YAEC cost estimates or its description of various aspects of its financial plan. Even if proven, each ultimately would result in notEig more than redrafting the plan 2o which the Commission indicated in its guidance in CLI-96-1 is insufficient to provide a basis for a litigable contention. We therefore dismiss Contention C too.

D.

CAN/NECNP Contention D Petitioners' fourth contention i3 framed as follows:

CONTENTION D: YAEC's decommissioning plan fails to include measures necessary to ensure that workers and the public are adequately protected from health damage caused by the excessive radiation doses they received during the unlawful Component Removal Program.

Intervention Petition at 27 (emphasis in original). As the basis for this con-tention, Petitioners assert that as a result of the agency's unlawful approval of the CRP, Yankee Rowe workers and the public were exposed to radiation doses above reasonably achievable levels. This, in turn, raises the probability of ca t-cer and other adverse health and genetic effects. To protect the public heann, YAEC should be directed to commission an independent effluent pathway cancer incidence and mortality study and establish a fund for treating cancers caused by CRP exposures. See id. at 27-29. Again, both Licensee and the Staff assert that this contention should be dismissed. See YAEC Response at 23-24; Staff Response at 22-23.

In CLI-96-1, the Commission provided explicit guidance regarding this contention. It declared:

I' Although Petiooners rnake the point that showing there is a gross discrepancy in a decomnussioning cost estirnate nught be sufficient to provide a htigable issue even m the face of a full decomnussiotung funding obhgation such as that in the Power Contracts. see Tr. at 128. nodung presented by Peutioners suggests that there is such a discrepancy in the YAEC cost estimate See CLI-961,43 NRC at 8-9.

20 ln this regard, ahhough Peutioners' Bases 2 and 4 concern the lack of an adequate plan descriphon of the' trust arrangement for the segreganon of decomnussioning funds rather than cost estimates per se, we do not beheve they fare any better under the Comnussion's Contention C guidance During the prehearing conference, YAEC declared that a copy of the agreement attached to a supposedly publicly available document, a July 25, 1990 letter subnutied to the agency pursuant to 10 C 7 S. OO 75(bh would address these maners. See Tr. at 121-21 Pentioners assened, however,1m they should not le rauired to compensate for the licensee s failure to include or provide an adrquate catauon to es descuption of d.u document in the plan and thus these bases provided sufficient grounds for adnussion of its financial assurance contenuon. See Tr. at 128-30. While we do not gainsay j

F2titioners' frustrauon in this regard, the Comnussion's guidance would seem to preclude this type of basis as well.

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i To the extent that the contention alleges that YAEC has violated NRC regulations, those allegations are more properly the subject of separate enforcement actions. The focus of this proceedmg is prospective only - the future decommissioning of the remainder of the facihty under the proposed decommissioning plan.

43 NRC at 9. The Commission thus appears to believe that if Petitioners desire to pursue the relief they seek in this contention, a petition under 10 C.F.R. 12.206 requesting Staff enforcement action is the appropriate mechanism. We heard nothing during oral argument at the prehearing conference that would call into question the Commission's guidance in this regard. Accordingly, we dismiss this contention also.

E.

CAN/NECNP Contention E

. Petitioners' last contention states as follows:

i CONTENTION E: The NRC staff violated the National Environmental Policy Act by failing to prepare a supplemental Environmental Impact Statement for the decommissioning of [ Yankee Rowel.

Intervention Petition at 30 (emphasis in original). As regulatory support for this contention relating to agency compliance with the National Environmental Policy Act of 1969 (NEPA), Petitioners rely on 10 C.F.R. 6 51.92(a)(2), noting that under its terms the Staff must prepare a supplemental environmental impact statement (SEIS) for a proposed action whenever there are "significant new circumstances or information relevant to environmental concerns and bearmg i

on the proposed actions or its impacts."

i As the basis for Contention E, Petitioners assert that the Staff erred m its conclusion that, because the impacts associated with decommissioning are bounded by the conditions evaluated in the FGEIS or other regulatory standards, an environmental assessment rather than a site-specific environmental impact statement is necessary in connection with the Yankee Rowe decommissioning plan. According to Petitioners, a number of environmental inpacts specific to Yankee Rowe that were not considered in the FGEIS for nuclear facility decommissioning mandate the preparation of an SEIS, including those impacts regarding:

(1) Potentially inadequate decommissioning financing for prematurely shutdown reac-tors like Yankee Rowe.

(2) Projected occupational dose estimates that exceed the doses anticipated for Yankee Rowe decommissioning in the FGEIS.

(3) The potential for an unanalyzed cask drop accident resulting from the use of dry cask storage for spent fuel.

85

i (4) An unanalyzed transportation accident involving a radioactive release from resins as a resuk of a long duration. high temperature fire.

(5) Delay in the disposal of flLRW, particularly as it affects the balance between ben-eficial and adverse environmental impacts relative to the DECON and SAFSTOR decommissioning alternatives as analyzed in the FUEIS.

See Intervention Petition at 30-35; see also CAN/NECNP Reply at 35-42. As before, the Staff and YAEC oppose this contention in toto. See YAEC Response at 24-28; Staff Response at 23-26; YAEC Reply at Il-12.

Looking to Petitioners' first basis, we note that the FGEIS does include a discussion of the problem of inadequate funding for any nuclear facility and its potential impacts on the decommissioning process. See FGEIS at 2-14 to -20. De FGEIS concludes that there must be reasonable assurance that adequate funds will be available for performing decommissioning. See id. at 2-20. In putting forth Basis I for Contention E. Petitioners' challenge to this conclusion appears based on their assertions, as set forth in Contention C, that

]

such reasonable assurance does not exist for Yankee Rowe decommissioning.

As we noted previously with regard to Contention C, however, Petitioners have not provided a sufficient basis for a litigable contention regarding the adequacy 1

of funding for Yankee Rowe decommissioning. With this failure, Petitioners also have not provided any material factual or legal dispute regarding the need for additional discussion pn this topic in an SEIS for Yankee Rowe.

%e first noncost basis for this contention, Basis 2, is Petitioners' assertion that an SEIS is required because occupational dose estimates exceed values anticipated in the FGEIS. Petitioners have characterized this basis generally as a concern about improper Staff " scaling" of the occupational impacts of decommissioning the 185 megawatt electric (MWe) Yankee Rowe facility in comparison to a 1000 MWe pressurized water reactor used as the referenced facility in the FGEIS. In fact, it rests on two subcomponents:

(a) a purported discrepancy in YAEC's occupational dose estimates regarding the CRP that would result in a total dose estimate substantially in excess of the 755 person-rem figure used in the plan; and (b) a failure by the staff to evaluate properly the radiological impacts of decommissioning given that the smaller size of the Yankee Rowe facility shoald. but does not. result in comparatively lower doses than are being projected by YAEC.

See Intervention Petition at 32-33.

Regarding the claimed occupational dose discrepancy, as the Staff points out, see Staff Response at 25, the total occupational exposure estimate for the CRP of 350 to 400 person-rem first given by YAEC in June 1993 was superseded by a revised figure of 160 person-rem in the decommissioning plan that accounted for 86

CRP implementation experience. See 2 FSAR at 507-4, -15. Having presented nothing that would suggest that the more recent figure is incorrect (as opposed to simply different from the earlier figure), Petitioners have failed to establish a disputed material issue of fact that warrants further litigation.

On the question of scaling, Petitioners maintain that the FGEIS occupational exposure figure of 1215 person-rem used is not an appropriate bounding figure for the Yankee Rowe facility, given its smaller si;.e. They suggest that a figure of 513 person-rem should be used for Yankee Rowe, as is set forth in the August 1979 addendum to the June 1978 report that was used in the FGEIS to derive the 1215 person-rem occupational exposure figure for the 1000 MWe reference plant. See R.I. Smith and L.M. Polentz, Technology, Safety and Costs of Decommissioning a Reference Pressurized Water Reactor Power Station, NUREG/CR-0130, at 2-4 (addendum Aug.1979) (Table 2.1-2). And, using this 1979 figure in comparison to the YAEC estimate of 755 person-rem, see EA at 22, Petitioners maintain that there is a difference in occupational exposure of at least 200 person-re,m, the radiological impact of which has not been accounted for in the FGEIS or the Staff's EA. See Intervention Petition at 32-33.

Ii>r their part, both the Staff and the Licensee assert that such a comparison is irrelevant, because the FGEIS determination relating to occupational exposures was footed not on the relative size of the estimated exposures from different capacity plants but on a comparison of the estimated occupational exposures from decommissioning with those exposures arising from facility operation.

See Staff Response at 24, YAEC Response at 25. And, according to YAEC, the comparison cited favorably in the FGEIS in connection with the 1000 MWe reference reactor is on a par with that for the Yankee Rowe DECON option.28 See YAEC Response at 25. Petitioners respond by declaring that the FGEIS does not incorporate such an assessment relative to the occupational doses arising from the DECON alternative, but makes a judgment only that both the DECON or SAFSTOR options are acceptable. See CAN/NECNP Reply at 37.

It is apparent that the FGEIS assessment of the impacts of occupational exposure does rest on a comparison of the impacts of exposure during the decommie

.ing process with those arising during facility operation and makes a judgment that such impacts are acceptable.22 That this should be so is not 21 For the 1000 MWe reference facility, the FGEIS desenbes an annual average DECoN decomnussiomng &ne of 279 person-rem per year versus a figure of between 550 and 1101 person-rem per year for pressunzed water reactor operation, maintenance. and refuehng. See FGrls at 4-7. YALC mamtains that this clearly is on a par with those for the Yankee Rowe DECoN option, which yields a 75 5 person-rem per year average occupanonal exposure sersus a 197 person-rem per year average for facthry operanon over Yankee Rowe's nearly Dycar Lfe.

See YAlf Response at 25.

22 See FGEls ai 4-15 ("It is noted for perspecove that in the cases of DECoN and SAFSToR. the environnental effects of greatest concern 0 e., radianos dose and radioacuvity released to the environmeno are substantially less than the same effects resulung from reactor operauon and nuuntenance") see atm EA at 5 ("Although the DECoN alternanve for YNPs provides a larger occupanonal dose than sArsToR. it is well below the rouune annual dose from plant operanons")

87

1 l

l surprising because, as we recognized earlier, see supra notes 2,6, the "no action" l

alternative simply is not available relative to decommissioning. Petitioners have l

not challenged the substance of the FGEIS conclusion in this regard,23 nor have they sought to demonstrate that for Yankee Rowe a comparison of the DECON alternative with reactor operation yields a different result relative to occupational j

doses. This basis for Contention E thus fails to provide a disputed material issue of fact or law that warrants further litigation.24 Regarding Petitioners' concern, as expressed in its third basis, about the l

need for an SEIS discussion of a spent fuel cask drop accident, as we noted i

regarding Contention B, this is a matter that is most directly relevant to a future l

regulatory action, i.e., a change in Technical Specification 3.2. As we noted l

above, that license limitation currently precludes the movement over the Spent Rel Pit of a,y cask weighing more than 35 tons, which effectively prohibits the movement of larger multi-purpose canisters over the pool, and any agency action authorizing such a change would have to be accompanied by an appropriate safety and environmental analysis, which would be subject to challenge in an adjudicatory hearing. See supra p. 80. Pafticularly given Petitioners' failure to i

make any showing that providing such an analysis now rather than at the time agency action regarding a technical specification change actually is sought has any relevant impact on the approval of YAEC's decommissioning plan - the agency action currently at issue - we are unable to conclude that there has been I

any sufficient showing of a violation of the agency's NEPA responsibilities.25 In considering Petilio6ers' fourth basis concerning a transportation-related resin fire accident unanalyzed in the FGEIS, we again find that, as set for'h in their pleadings, this concern fails to provide a d sputed material issue of fact or law concerning whether, in accordance with 10 C.F.R. 6 51.92(a)(2),

there are "significant new circumstances or information relevant to environmental concerns and bearing on the proposed actions or its impacts." Our determination in this regard is based upon the contents of the document referenced by 23 Feuunners do suggest that the use of an " annual" dose is a scienuhcally invahd nrthod of assessing environmental impacts See CAN/NECNP Reply at 36 n 98. In the context of this decomnussiomng plan.

however, whether viewed in terms of annual done or total dose, the occupanonal exposures that will anse dunng deconurussiomng apparently are far less than those that would accrue diinng facthey operanon 24 1a their reply. Peuuoners also contend that the difference between the 513 person-rem Agure in the 1979 study and the 755 person-rem 6gure used by YAEC is a gap that ments further environmental assessment See CAN/NECNP Reply at 37. Ahhough couched in NE PA terms. we perceive this as really nothing more than another aspect of their ALARA based challenge to the YAEC choice of decomnussiomng alternauves. which we

]

(actmg in accordance with the Comnussion's guidance) have already rejected.

25 Dunng the preheanng conference. Peuuoners declared that because of the amerrelauonship between this technical specihcanon change and the cluce of whether to go to dry cask storage as part of the decorTrussiomng process.

a failure to consider the environrrental impacts of the technical speci6 canon change would consutute improper

" segmentation" of the NEPA process. See Tt at 188-92 h is not apparent. however, how postoorung the NEPA analysis for tius change forecloses any opuon. including the "no action" opuon. with respect to the choice of whether to use dry cask =torage.

f 88 1

l I

i

Petitioners as support for this basis, which we conclude on its face does not set forth an accident scenario that requires NEPA consideration.

The " rule of reason" governing NEPA interpretation provides that an agency need not consider " remote and speculative risks." Limerick Ecology Acfion v.

NRC, 869 F.2d 719,739 (3d Cir.1989). In Basis 4, Petitioners assert that the FGEIS evaluation of transportation impacts did not include any analysis of a 1988 Sandia National Laboratories (SNL) report on the consequences and risks of highway accidents involving transported low specific activity (LSA) waste.26 That report describes a hypothetical " worst case" traffic accident scenario involving a transportation cask containing reactor spent ion-exchange resins,21 which generally have the highest specific activity levels of all LSA materials, in amounts that are at the regulatory maximum for shipping. As outlined in the report, a hypothetical traffic accident results in the transportabon cask coming open. Once the cask is open, all the resins spill, and then are ignited by a fuel spill fire. See Robert M. Ostmeyer et al., The Potential Consequences and Risks of Highway Accidents Involving Gamma-Emitting Low Specific Activity (LSA)

Waste, SAND 87-2808, at I,15-16,49 (Aug.1988) [ hereinafter SNL Accident Report].2s Although seemingly based upon cask breach conditions that fall within the boundaries established by the agency's transportation regulations for testing transportation casks,2' the report nonetheless declares that "an accident resulting in a spill of resin is considered to have a very low probability." SNL Accident Report at 17. Further, the report states that the critical circumstance of the presence of a fire to ignite the resins - the condition that causes a radioactive 26 the sNL report apparently has never been included in an agency NEPA analysis, whether as part of a rulemakmg or otherwise. See Tr. at 209-10.

27 YAEC has asserted that a NEPA analysis of resin transportanon relanve to facihty decomnussioning is unnecesary because the use and decontamina' ion of resms and their subsequent transportanon falls witi.in the scope of its exisung authonzation under 10 C.F.R. Part 50. See YAEC Response at 26. Tr. at 197 98. It is not parent. Inever, that the removal and disposal of resins is not a decomnussioning matter. See 1 FsAR at 2071.

The SNL report was prepared at the request of the Uruted states Department of Transponation to assess whether. for a postulated

• worst case" accident. the exisung regulatory requirements govermng the shipment of I.SA materials. ie.. resins. are sufAcient to assure that pubhc health and safety is protected See SNL Accident Report at I. The report reaches the conclusion that no regulatory change is needed See sd. at 51.

29 The Staff asserts that ictiuoners' Basis 4 should be rejected in accordance with 10 C.F.R.12.758 because it consutures an improper attack upon 10 C.F.R. 6 71.73(c) as it estabhshes the test penmeters for transportanon casks. See staff Response at 25-26. Under secuco 71.73(c). the hypotheucal accident conditions against which a transportanon cad must be tested include a 9 rneter (30 foot) free drop onto a flat, essenhally unyiekhng honzontal surface to a posinon for which maammm damage is expected and a thermal esposure of not less than 800* cenograde (1475* Fahrenheit) for not less than 30 nunutes.

While the SNL report was intended to deternune whether the regulatory hmits governing LSA shipments are appropnate,it apparently does so usms an accident scenano that scenungly falls within the regulatory provisions j

govermng transportauon cask tesung. Tly hypotheucal ** worst case" accident in the SNL report includes a center i

of gravity over cornrr drop from 9 meters and an accompanymg sustained duranon fuel hre with temperatures of as much as 1000* cenngrade. See sNL Accident Report at 1516. Secuon 2.758 thus does not appear to bar Pennoners' basis for Contenuon E.

i S9

release - would appear in "[o]nly a small fraction of the transport accidents that lead to a spill of spent ion-exchange resin " /d. at 18.

A document put forth by an intervenor as the basis for a contention is subject to scrutiny both for what it does and does not show." Because only accident scenarios that are not " remote and speculative" need be the subject of a NEPA analysis, if the information in any intervenor-proffered document regarding such a scenario fails to indicate that this threshold has been crossed, then a contention challenging NEPA compliance based on a failure to analyze that scenario need not be admitted. See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 44-47 (1989), remandedfor additionalfmdingS, CLI-90-4, 31 NRC 333 (1990). The description of the hypothetical accident in the SNL report, which incorporates a chain of events including a low probability cask breach accident followed by a fire of similarly remote probability, does not exceed this level.31 Accordingly, as presented by Petitioners, the SNL report does not provide an admissible basis for Conten.

tion C.

Finally, the reqbirement of 10 C.F.R. 5 51.92(a)(2) that there be "signifi-cant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts" once again is not fulfilled by Petitioners' Basis 5 assertion that an SEIS is needed to discuss the impact of the purported delay in the availability of an HLRW repository upon the balance between the DECON and,SAFSTOR alternatives. The FGEIS already contains an analysis of the environmental impacts of the SAFSTOR option in the event it became necessary to incorporate a longer period of onsite HLRW storage.

"Dunng the pwanng conference. Pennoners objected to various statenrnts by the Licensee regarding the contents of the SNL report, asserung that they did not have their expen present to counter those asseruona. See Tr. at 200 02. Having used the sNL report as the central support for this basis for Comennon E. see Intervenuon i

Pennon at 33-34 CAN!NECNP Reply at 38-39, the contents of that report are what are before the Board and as I

such, are subject to Board scrutiny. both as to those poruona of the report that support their asseruons and those pornons that do not.

The only other matenal cired by Peutioners in support of tius basis is a 1977 final environnrntal statement (FES) regar&ng a rulemaking relaung to the transportation of radioneuve inntenal. Peuuoners declare the FES shows that the agency previously has analyzed sinularly low probabihty accidents (albeit without any explanauon as to why that is so). See CAN/NECNP Reply at 39 n.108. Akhough that FES does analyze a " worst case" rnator whicle transportanon accident, see I office of Standards Development. U.s Nuclear Regulatory Comm'n. Final Environmental statement on the Transportauon of Ra&oactive Matenal by Air and Other Modes. NUREG-0170, j

at 5-38 to -49 (Dec.1977L we are unable to conclude that it supports the need for such an analysis in this instance given that the parameters as to both accident protabihry and consequences used in the FES appear markedly different frora those involved in the SNL study.

38 The unusual nature of the hypothencal accident scenano is further highlighted by other aspects of the report's desenpuon. For instance, the report states that because of the " water of hydration" contained in the resma. to achieve a maximum hydrated resin mass loss involvmg the maximum ra&oactive release "would require tan) extraorenary conocidence of fuel and resin in a specific geometnc arrangement." SNL Accident Report at 17. In ad& tion. the report notes in connecuon vpth resin ra&onuchde acrosolization - the process through which resm ra&onuchdes would be camed away with the combusnon gases from the fire, thereby resuhing potenually in the 1

rnost exposure to the pubhc - that because the parution between the resin combusuon residue 6nd the combustion j

gases is unknown, it is assumed that 100% of the radionuchdes within the burned resm are acrosohzed. See id.

90

l While the FGEIS notes that "[t]he active phase of maintaining the spent fuel in the pool is not considered to be part of the regulatory requirements for decom-missioning," it nonetheless goes on to observe:

Consideration was given to the situation where, at the end of the reactor operation life.

' it is not possible to dispose of waste offsite for a limited period of time, bui not exceeding 100 years. Such a constraint needs to be accounted for in the decommissioning ahernatives.

Based on an analysis by [Battelle Paci6c Northwest Laboratories) of the technology, safety and cost considerations on selection of decommissioning ahernatives, it is concluded that SAFSTOR is an acceptably viable ahernative. While DECON and conversion of the spent fuel pool to an independent spent fuel storage pool is certainly a possibility for the case where all other radioactive wastes can be removed offsite, there does not appear to be any signi6 cant rafety difference between this alternative and SAFSTOR and the choice should be a Licensee decision.

FGEIS at 4-20 (citation and footnote omitted). With this environmental analysis already in the FGEIS, nothing presented by Petition;:rs establishes there is a material factual or, legal dispute about whether an SEIS containing additional information is necessary to conform with the requirements of section 51.92(a)(2).

It also seems apparent that, while couched in terms of NEPA compliance arising from a need to rebalance an altered alternative, what Petitioners really posit with this basis is another chalA:e to the Licensee's choice of the DECON rather than the SAFSTOR decommissioning option. In line with the Commission's guidance.in CLI-96-1,43 NRC at 8, absent a showing grounded in dose estimates or other information that is outside the analytical boundaries of the FGEIS, such an objection does not produce a litigable issue under NEPA either.

There thus being no litigable basis for Contention E, we dismiss it as well.

IV. CONCLUSION Based on Petitioners' showing that (1) several of their members live and recreate close to the Yankee Rowe facility and utilize local waste shipment routes; (2) there is some reasonable basis for believing that their proximity to the facility and use of local waste routes can result in an injury to their health and safety or environmental interests as those interests are protected under the Atomic Energy Act and NEPA; and (3) those affected members have authorized representation of their interes*.s, Petitioners CAN and NECNP have established their standing to intervene in this proceeding. As to each of their five contentions, however, utilizing the guidance provided by the Commission in CLI-96-1, we find that Petitioners have failed to establish either that "a genuine dispute exists with [YAEC] on a material issue' of law or fact" or that the contention, if proved, would entitle them to any relief. See 10 C.F.R.12.714(b)(2)(iii), (d)(2)(i)-

91 i

1 1

I (ii). Consequently, we must deny their intervention request and terminate this proceeding.

Ibr the foregoing reasons, it is, this first day of March 1996, ORDERED that:

)

1.

The November 30,1996 petition to intervene and supplemental petition to intervene of Petitioners CAN and NECNP is denied and this proceeding is dismissed.

2.

In accordance with the provisions of 10 C.F.R. 6 2 714a(a), as it rules I

upon an intervention petition, this Memorandum and order may be appealed to the Commission within 10 days after it is served.

1 THE ATOMIC SAFETY AND LICENSING BOARD G. Paul Bollwerk, Ill, Chairman ADMINISTRATIVE JUDGE Jerry R. Kline ADMINISTRATIVE JUDGE Thomas S. Elleman ADMINISTRATIVE JUDGE Rockville, Maryland March 1,19%

1

(

92

Cite as 43 NRC 93 (1993)

LBP 96-3 UNITED STATES OF AMERICA NUCLEAFI REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD i

Before Administrative Judges:

G. Paul Bollwerk, Ill, Chairman Dr. George C. Anderson Dr. A. Dixon Callihan in the Matter of Docket No. 030-31765-CivP (ASLBP No. 95-708-01-CivP)

(EA 94-006)

(Byproduct Materials License No. 37-28540-01)

ONCOLOGY SERVICE 5' CORPORATION (Harrisburg, Pennsylvania)

March 28,1996 MEMORANDUM AND ORDER (Approving Settlement Agreement and Dismissing Proceeding)

On April 24,1995, the NRC Staff issued an order imposing a civil penalty in the amount of $280,000 on Oncology Services Corporation (OSC) for alleged regulatory violations relating to activities under Byproduct Materials License No 37-28540-01. 60 red. Reg. 21,560 (1995). That license authorized OSC to possess and use certain byproduct materials under specified conditions at six facilities in Pennsylvania.8 The violations at issue were identified during a December 3-18, 1992 NRC inspection in connection with a November 1992 I Ucense No. 37-28540 01 was due to expire on August 31,1995. On December 13,1993.OSC requested that license be ternunated and replaced with thdsvidual hcenses issued to the facshties named as locations of use on that beense. On August 24.1994 Ucense No. 37 28540 01 was ternunated and the agency subsequently issued separate hcenses for the six facihues. Sec 60 FM Reg. at 21.560.

93

radiation misadministration incident at OSC's Indiana (Pennsylvania) Regional Cancer Center (IRCC), and December 8,1995 inspections of OSC facilities in Exton and Lehighton, Pennsylvania. 'Ihis proceeding was convened in response to OSC's May 18,1995 request for a hearing regarding the civil penalty order.

By filing dated Rbruary 12,1996, OSC and the Staff ask that we approve a settlement agreement they have provided and dismiss this proceeding. Their request is part of a motion filed jointly by the parties in this proceeding and the pending Radiation Oncology Center at Marlton (ROCM) adjudication, Docket No. 030-032493-CivP. In the Radiation Oncology Center proceeding, Licensee Radiation Oncology Center at Marlton (ROCM) challenges an April 24,1995 Staff order imposing a civil penalty in the amount of $80,000 for alleged regulatory violations regarding radiation safety activities identified during a Rhruary 1993 inspection of ROCM's Marlton, New Jersey facility. See 60 Rd. Reg. 21,570 (1995). Although the alleged regulatory violations involved in the two proceedings are different, OSC and ROCM share common ownership and the Staff's inspection and enforcement activities that resulted in the separate 3

' April 1995 civil penalty orders against OSC and ROCM had their genesis in the i

November 19921RCC misadministration incident.

j Based on a review of the proposed jc, int settlement agreement by all Board I

members in both cases, on Rbruary 20,1996, the Board Chairmen for the two proceedings held a telephone conference with all the parties to discuss the terms of paragraph 12 of the joint agreement regarding changes to the agreement as well as various minor typographical revisions. As a result of that conference, on Rbruary 27,1996, the parties submitted a revised joint settlement agreement.

Under the terms of the revised settlement agreement, which is applicable to both the Oncology Services Corporation and Radiation Oncology Center proceedings, OSC and ROCM agree to pay a single civil penalty totaling 4

$ 140,000. The agreement also sets forth a schedule for paying this penalty in twelve equal monthly installments, with interest and administrative charges.

In consideration of payment of the civil penalty, the Staff agrees not to take any further enforcement action against either OSC or ROCM based on any of 4

the facts or violations related to various specified investigations and inspections that provided the basis for the Staff's April 1995 civil penalty orders.

Pursuant to section 81 and subwetions (b) and (o) of section 161 of the i

Atomic Energy Act of 1954, 42 U.S.C.15 2111, 2201(b), 2201(o), and 10 C.F.R.12.203, we have reviewed the parties' revised joint settlement accord to determine whether approva! of the revised agreement and termination of 1

this proceeding is in the pu%c interest. Based on that review, and according I

due weight to the position of the Staff, we have concluded that both actions are consonant with the public interest. Accordingly, we grant the parties' 94

joint motion to approve the settlement agreement, as revised, and dismiss this proceeding.2 For the foregoing reasons, it is, this twenty-eighth day of March 1996, ORDERED that:

1. The Ibbruary 12,1996 joint motion of the parties is granted and we approve their Ibbruary 27,1996 " Joint Settlernent Agreement," which is attached to and incorporated by reference in this Memorandum and Order.

2.

This proceeding is dismissed.

THE ATOMIC SAFETY AND LICENSING BOARD G. Paul Bollwerk. III, Chairman ADMINISTRATIVE JUDGE George C. Anderson ADMINISTRATIVE JUDGE A. Dixon Callihan ADMINISTRATIVE JUDGE Rockville, Maryland March 28,1996 2

A nwnwrandum and order approving the joint settlenent agreement and ternunating the proceeding was entered this dale in the RaJsarnon Oncology Center case. see Radsation Oncology Censer at Marlton (Mathon, New Jersey), LBP-964,43 NkC 101 (1996).

95

l l

ATTACIIMENT 1 l

l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION in the Matter of Docket No. 030-31765-CivP l

(ASLBP No. 95-708-01-CivP)

(EA 94-006)

(Byproduct Material License No. 37-28540-01)

ONCOLOGY SERVICES CORPORATION In the Matter of Docket No. 030-32493-CivP (ASLBP No. 95-70942-CivP)

(EA 93-072)

(Byproduct Material License No. 29-28685-01)

RADIATION ONCOLOGY CENTER AT MARLTON JOINT SETTLEMENT AGREEMENT On May 31,1994, the staff of the Nuclear Regulatory Commission (Staff) issued a Notice of Violation and Proposed Imposition of Civil Penalties (OSC-NOV) to Oncology Services Corporation (OSC). Also on May 31,1994, the Staff issued to the Radiation Oncology Center at Marlton (ROCM) a Notice of Violation and Proposed Imposition of Civil Penalty (ROCM-NOV). Both OSC and ROCM share common ownership. On August 31, 1994, both OSC and ROCM filed responses to the respective NOVs, admitting some of the violations and denying others. " Response of Oncology Services Corporation to Notice of Violation and Proposed Imposition of Civil Penalties and Answer to a Notice of Violation," " Response of Radiation Oncology Center at Marlton to Notice of Violation and Proposed Imposition of Civil Penalty and Answer to a Notice of Violation," August 31, 1994. Both OSC and ROCM supplemented their responses on October 4,1994, and on December 1,1994, ROCM provided additional documentation to the NRC relative to the alleged violations.

After consideration of OSC'~s and ROCM's responses, the Staff, on April 24, 1995, issued an " Order Imposing Civil Monetary Pena! ties - $280,000" 96 l

(OSC Order) to OSC and "An Order Imposing a Civil Monetary Penalty -

$80,000"(ROCM Order) to ROCM. Oncology Services Corp., Harrisburg, PA:

Order imposing Civil Monetary Penalties, 60 R:d. Reg. 21,560 (May 2,1995);

Radiation Oncology Center at Marlton Marlton, New Jersey; Order Imposing a Civil Monetary Penalty, 60 Fed. Reg. 21,570 (May 2,1995).

Both ROCM and OSC requested hearings on May 18,1995. On May 30, 1995, separate Atomic Safety and Licensing Boards were designated. Oncology Services Corporation, Harrisburg, Pennsylvania; Establishment ofAtomic Safety and Licensing Board, 60 Fed. Reg. 29,901 (June 6,1995); Radiation Oncology Center at Marlton, Marlton, New Jersey; Establishment of Atomic Safety and Licensing Board, 60 Fed. Reg. 29,901 (June 6,1995).

'Ihe Staff, OSC, and ROCM, agree that it is in their respective interests and in the public interest to settle these enforcement actions and agree.o the following terms and conditions:.

1.

OSC and ROCM withdraw their respective requests for hearings.

2.

OSC and ROCM agree to pay a single civil penalty in the amount of $140,000.00 in twelve (12) equal monthly installments in accordance with paragraph 6 of this Settlement Agreement. In the event that payment is not received by the fifteenth of the month, in accordance with paragraph 6, the Staff will provide written notice of such fact via facsimile transmission to the attention of Marcy L. Colkitt, General Counsel, at (412) 463-3569, with a conforming copy sent,via express mail to the Offices of Marcy L. Colkitt,176 Timbersprings Lane, Indiana, Pennsylvania 15701 and Iles Cooper, Williamson, Friedberg & Jones, One Norwegian Plaza, Pottsville, Pennsylvania 17901. A printed facsimile transmission report from an NRC facsimile machine is proof of the provision of such notice. In the event of a change of facsimile number, OSC and ROCM agree to promptly inform the Staff in writing of any such change and provide the new facsimile number. Any notice sent via facsimile prior to the Staff's receipt of such notification of a change of facsimile number will be deemed to be in compliance with the notice requirements of this paragraph.

3.

If any installment remains unpaid for a period of thirty (30) days or more, provided the Staff has given the requisite notice to OSC and ROCM in accordance with the procedures described in paragraph 2, the Staff may, in its discretion, consider this Settlement Agreement as materially breached. In the event of a material breach of this Settlement Agreement, the full amount of the civil penalties imposed on OSC, $280,000.00 (plus interest and administrative charges, less any payments already made hereunder), will become due. In this event, OSC agrees to waive any right to contest or seek review of the imposition of the civil penalties before the NRC or in any court. Also, in the event of a material breach of this Settlement Agreement, the full amount of the civil penalty imposed on ROCM, $80,000.00 (plus interest and administrative charges. less any payments already made hereunder), will become due. In this event, ROCM 97

further agrees to waive any right to contest or seek review of the imposition of the civil penalty before the NRC or in any court.

4.

In consideration of the payment of a civil penalty as set forth in paragraph 2 of this Settlement Agreement and in light of the fact that OSC no longer holds License No. 37-28540-01 and the corrective actions taken at the facilities formerly named on License No. 37-28540-01, the Staff agrees not to take any further enforcement action against OSC and all former and present shareholders, directors, officers, and agents (all of whom are referred to by, and included in the definition of, the term "OSC" as used throughout this Agreement) based on the facts or violations cited in the NOV-OSC, any matter within the scope of the Incident Investigation Team's (IIT) investigation, as documented

. in the IIT report, NUREG-1480, and any matter within the scope of the Office of Investigations' (OI) investigation, as documented in Investip. tion Report No.

192-060R, dated May 25, 1994, including any document within the scope of the subpoenas issued by OI in connection with its investigation.

5.

In addition, in consideration of the payment of a civil penalty as set forth in paragraph 2 of this Settlement Agreement and in light of the corrective actions taken by ROCM, the Staff agrees not to take any further enforcement action against ROCM and all former and present shareholders, directors, officers, and agents (all of whom are referred to by, and included in the defmition of, the term "ROCM" as used throughout this Agreement) based upon the facts or violations citedjn the NOV-ROCM, any matter within the scope of the inspection conducted from February 2-March 11,1993, documented in inspection Report No. 030-32493/93-001, and any matter within the scope of Ol's investigation, as documented in Investigation Report No. 1-93-030, dated September 3,1993.

6.

OSC and ROCM agree to make payments in twelve (12) equal monthly installments. The first payment is to be received thirty days after this Settlement j

Agreement has become final agency action (unless such day falls on a Saturday, Sunday or federal holiday, in which case payment is to be received by the i

next business day), plus interest on the unpaid principal balance accruing at the rate of 5 percent per year, as well as an administratise charge of $10.00 per month. Subsequent payments shall be received by the fifteenth day of each month thereafter. Payments shall be made payable to the United States Treasury and received at the address below continuing until the principal sum and all interest and other charges assessed under the provisions of this Settlement Agreement have been fully paid. Payments will be mailed to the following address:

U.S. Nuclear Regulatory Commission Office of Enforcement A'ITN: James Lieberman Mail Stop - 07H5 Washington, D.C. 20555 98

_.w

The following is a schedule of monthly installments:

Payment Payment Total Interest Admin. Principal Remaining Number Date Payment Amount Amount Amount Balance Beginning balance 140,000.00 l

i 12,000.00 583.33 10.00 11,406.67 128,593.33

)

2 12,000.00 535.81 10.00 11,454.19 117,139.!4 3

12,000.00 488.08 10.00 11,501.92 105,637.22 l

4 12,000.00 440.16 10.00 11,549.84 94,087.37 5

12,000.00 392.03 10.00 11,597.97 82,489.40 6

12,000.00 343.71 10.00 11,646.29 70,843.I1 i

7 12,000.00 295.18 10.00 11,694.82 59,148.29 8

12,000.00 246.45 10.00 i1,743.55 47,404.74 9

12,000.00 197.52 10.00 11,792.48 35,612.26 10 12,000.00 148.38 10.00 11,841.62 23,770.65 11 12,000.00 99.04 10.00 11,890.96 11,879.69 12 11,939.19 49.50 10.00 11,879.69 0.00 TOTAL 143,939.19 3,819.19 120.00 140,000.00 7.

In the event of a material breach of this Settlement Agreement, OSC and ROCM agree to pay all reasonable collection costs, court costs, and attorney's fees incurred by the NtR1e'ar Regulatory Commission and/or the United States for any appropriate collection actions taken by the Nuclear Regulatory Commission and/or the United States. However, in no event will these costs exceed 5%

($18,000) of the total civil penalties imposed by the Staff's April 24, 1995 Orders.

8.

Failure or failures by the Staff to exercise any right in this Settlement Agreement with respect to a material breach shall not be construed as a waiver of its right to exercise the same or any other right at any time thereafter.

9.

With the exception of challenging the receipt of the requisite notice described in paragraph 2, in the event of a material breach of this Settlement Agreement, both OSC and ROCM do hereby authorize and empower a United States Attorney, any of his or her assistants, or any attorney for or on behalf of the NRC or the United States to enter and confess judgment against OSC and ROCM for the imposed civil penalties in the amount of $280,000 against OSC and $80,000 against ROCM, with interest as described in paragraph 6, less payments actually made (such payments will be apportioned equally between OSC and ROCM), in any court of record, Federal or State; to waive the issuance and service of process upon both OSC and ROCM in any suit on the obligation; to waive any venue requirerhent in such suit; to release all errors which may intervene in entering upon such judgment or in issuing any execution thereon; 99

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and to consent to immediate execution on said judgment. Both OSC and ROCM I

do hereby ratify and confirm all that said attorney may do by virtue hereof.

l

10. The Staff, OSC, and ROCM agree that !his Settlement Agreement i

shall riot constitute and shall not be construed to constitute any admission or admissions in any regard by either OSC or ROCM of any matters set forth by the NRC in either the NOV-OSC or NOV-ROCM.

11. The Staff, OSC, and ROCM also agree that the matters upon which the NOVs were based have not been resolved as a result of this Settlement Agreement. This Settlement Agreement shall not be relied upon by any person or other entity as proof or evidence of any of the matters set farth in the NOVs.

12. For good cause shown, the Staff may, in writing, extend the time to complete any action set forth in any provision of this Settlement Agreement.

13. The parties agree and understand that this Settle ant Agreement is only binding on the NRC, OSC, and ROCM, and only relates to NRC's authority to take civil enforcement action. This Settlement Agreement shall be binding upon the legal representatives, successors and assigns of each of the parties hereto.

14 The Staff,' OSC, and ROCM shall jointly move the Atomic Safety and Licensing Boards designated in the above-captioned proceedings for orders approving this Settlement Agreement and terminating the proceedings, in Witness Whereof, the parties have caused this Settlement Agreement to be executed by their authorized representatives.

FOR ONCOLOGY SERNICES CORPORATION FOR THE NRC STAFF AND RADIATION ONCOLOGY CENTER AT MARLTON Marcy L. Colkitt Marian L. Zobler Secretary and General Counsel Counsel for NRC Staff for Oncology Services Corporation and Secretary and General Counsel for Radiation Oncology Center at Marlton Richard G. Bachmann Counsel for NRC Staff Dated at Rockville, Maryland, this 20th day of February 1996.

100 l

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Cite as 43 NRC 101 (1996)

LBP-96-4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD l

l Before Administrative Judges:

l Charles Bechhoefer, Chairman Dr. James C. Lamb 111 Lester S. Rubenstein in the Matter of Docket No. 30-32493-CivP (ASLBP No. 95-709-02-CivP)

(EA 93-072)

(Byproduct Materials License No. 29-28685-01)

RADIATION ONCOLOGY CENTER AT MARLTON (ROCM)

(Mariton, New Jersey)

March 28,1996 The Licensing Board approves a joint settlement agreement governing both this civil penalty proceeding and a related proceeding and terminates this proceeding. (Simultaneously, the Licensing Board in the other civil penalty proceeding approved the joint agreement with respect to that proceeding. See LBP-%-3,43 NRC 93 (1996).

MEMORANDUM AND ORDER (Approving Settlement Agreement and Terminating Proceeding)

On April 24, 1995, the NRC Staff issued an Order Imposing Civil Penalty to Radiation Oncology Center at Marlton (ROCM or Licensee). The Order sought a civil monetary penahytf $80,000 for a violation consisting of a failure to ensure that radiation safety activities were performed in accordance with 101

approved procedures and regulatory requirements in the daily operation of the Licensee's byprcduct materials program.

Concurrently, on April 24,1995, the NRC Staff also issued an Order imposing a $280,000 civil penalty on Oncology Service Corporation (OSC). The Orders in the ROCM and OSC proceedings, respectively, are related in that, although based on different violations, the facilities have common ownership and each violation for both facilities stems from inspections conducted as a result of a November 1992 misadministration incident at OSC's Indiana, Pennsylvania Regional Cancer Center.

ROCM and OSC filed respective hearing requests in the two proceedings.

This Board granted ROCM's hearing request and issued a Notice of Hearing on June 7,1995 (60 Fed. Reg. 31,332 (June 14,1995)). Fellowing our approval of issues for litigation in a Prehearing Conference Order dated Dt. ember 20,1995, LBP-95-25,42 NRC 237, the parties in both the proceedings on February 12, 1996, submitted a joint motion for approval of a settlement agreement.

Ibliowing a telephone conference on February 20,1996, between the chair-men of both Licensing Boards and parties' representatives, the parties on Febru-ary 27 submitted a revised joint settlement agreement reflecting matters discussed during that conference (particularly 112, concerning changes to the agreement).

The revised agreement, as the earlier version, called for a payment of $140,000 to NRC, together with a schedule for payments. The Staff agreed not to take any further enforcement action against either ROCM or OSC, based on any facts or violations derived from the various inspections and investigations that provided the basis for the Staff's April 24,1995 civil penalty orders.

Any settlement agreement between ROCM and the Staff is subject to approval by this Board.10 C.F.R. 6 2.203. In doing so, we must accord due weight to the posit on of the Staff. In the agreement, the Staff states that it is in the public i

interat (as well as its own) to settle the two enforcement actions, based on the P.rms set forth. We see no reason to disagree.

Based on sections 81 and 161(b) and (o) of the Atomic Energy Act of 1954, as amended,42 U.S.C. il 2111,2201(b), and 2201(o), and 10 C.F.R. 5 2.203, we have reviewed the revised joint settlement agreement and agree that its approval, e

and termination cf this proceeding, is in the public interest.

)

Accordingly, it is, this 28th day of March 1996, ORDERED:

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The February 12,1996 joint motion of the parties is granted and the revised February 27,1996 " Joint Settlement Agreement" (attached to and incorporated by reference herein) is hereby approved.

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2. This proceeding is terminated.*

THE ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Lester S. Rubenstein ADMINISTRATIVE JUDGE James C. Lamb til ADMINISTRATIVE JUDGE Eockville, Maryland, March 28,1946 I

i

• See LBP&3,43 NRC 93 (1996), for sinular order lernunating OSC proceeding.

103

1 1

ATTACIIMENT 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

in the Matter of Docket No. 030-31765-CivP i

(ASLBP No. 95-708-01-CivP)

(EA 94-006)

{

(Byproduct Material License No. 37-28540-01)

ONCOLOGY SERVICES CORPORATION in the Matter of Docket No. 030-32493-CivP (ASLBP No. 95-709-02-CivP)

(EA 93-072)

(Byproduct Material License No. 29-28685-01)

RADIATION ONCOLOGY CENTER AT MARLTON JOINT SETTLEMENT AGREEMENT On May 31,1994, the staff of the Nuclear Regulatory Commission (Staff) issued a Notice of Violation and Proposed Imposition of Civil Penalties (OSC-NOV) to Oncology Services Corporation (OSC). Also on May 31,1994, the Staff issued to the Radiation Oncology Center at Marlton (ROCM) a Notice of Violation and Proposed imposition of Civil Penalty (ROCM-NOV). Both OSC and ROCM share common ownership. On August 31, 1994, both OSC and ROCM filed responses to the respective NOVs, admitting some of the violations and denying others. " Response of Oncology Services Corporation to Notice of Violation and Proposed Imposition of Civil Penalties and Answer to a Notice of Violation," " Response of Radiation Oncology Center at Marlton to Notice of Violation and Proposed imposition of Civil Penalty and Answer to a Notice of Violation," August 31, 1994. Both OSC and ROCM supplemented their

{

l responses on October 4,1994, and on December 1,1994, ROCM provided additional documentation to the NRC relative to the alleged violations.

After consideration of OSC's and ROCM's responses, the Staff, on April 24, i

1995, issued an " Order imposing Civil Monetary Penalties - $280,000" a

104 5

(OSC Order) to OSC and "An Order Imposing a Civil Monetary Penalty -

$80,000"(ROCM Order) to ROCM. Oncology Services Corp., Harrisburg, PA:

Order imposing Civil Afonetary Penalties, 60 Fed. Reg. 21,560 (May 2,1995);

Radiation Oncology Center at Afarlton, Atarlton, New Jersey; Order Imposing a Civil Afonetary Penalty, 60 Fed. Reg. 21,570 (May 2,1995).

Both ROCM and OSC requested hearings on May 18,1995. On May 30, 1995, separate Atomic Safety and Licensing Boards were designated. Oncology Services Corporation, Harrisburg, Pennsylvania; Establishment ofAtomic Safety and Licensing Board, 60 Fed. Reg 29,901 (June 6,1995); Radiation Oncology Center at Afarlton, Afarlton, New Jersey; Establishment of Atomic Safety and Licensing Board, 60 fid. Reg. 29,901 (June 6,1995).

'lhe Staff, OSC, and ROCM, agree that it is in their respective interests and in the public interest to settle these enforcement actions and agree to the following terms and conditions:

1.

OSC and ROCM withdraw their respective requests for hearings.

2.

OSC and ROCM agree to pay a single civil penalty in the amount of $140,000.00 in twelve (12) equal monthly installments in accordance with paragraph 6 of this Settlement Agreement. In the event that payment is not received by the fifteenth of the month, in accordance with paragraph 6, the Staff will provide written notice of such fact via facsimile transmission to the attention of Marcy L. Colkitt, General Counsel, at (412) 463-3569, with a conforming copy sent via express mail to the Offices of Marcy L. Colkitt,176 Timbersprings Lane, In'diina, Pennsylvania 15701 and lies Cooper, Williamson, Friedberg & Jones, One Norwegian Plaza, Pottsville, Pennsylvania 17901. A printed facsimile transmission report from an NRC facsimile machine is proof of the provision of such notice. In the event of a change of facsimile number, OSC and ROCM agree to promptly inform the Staff in writing of any such change and provide the new facsimile number. Any notice sent via facsimile prior to the Staff's receipt of such notification of a change of facsimile number will be deerned to be in compliance with the notice requirements of this paragraph.

3.

If any installment remains unpaid for a period of thirty (30) days or more, provided the Staff has given the requisite notice to OSC and ROCM in accordance with the procedures described in paragraph 2, the Staff may, in its discretion, consider this Settlement Agreement as materially breached. In the event of a material breach of this Settlement Agreement, the full amount of the civil penalties imposed on OSC, $280,000.00 (plus interest and administrative charges, less any payments already made hereunder), will become due. In this event, OSC agrees to waive any right to contest or seek review of the imposition of the civil penalties before the NRC or in any court. Also, in the event of a material breach of this Settlement Agreement, the full amount of the civil penalty imposed on ROCM, 380,000.00 (plus interest and administrative charges, less any payments already made hereunder), will become due. In this event, ROCM 105

further agrees to waive any right to contest or seek review of the imposition of the civil penalty before the NRC or in any court.

4.

In consideration of the payment of a civil penalty as set forth in paragraph 2 of this Settlement Agreement and in light of the fact that OSC no longer holds License No. 37-28540-01 and the corrective actions taken at the facilities formerly named on License No. 37-28540-01, the Staff agrees not to take any further enforcement action against OSC and all former and present shareholders, directors, officers, and agents (all of whom are referred to by, and included in the definition of, the term "OSC" as used throughout this Agreement) based on the facts or violations cited in the NOV-OSC, any matter within the scope of the Incident Investigation Team's (IIT) investigation, as documented in the IIT report, NUREG-1480, and any matter within the scope of the Office of Investigations * (OI) investigation, as documented in Investi ation Report No.

1-92-060R, dated May 25, 1994, including any document within the scope of the subpoenas issued by 01 in connection with its investigation.

5.

In addition, in consideration of the payment of a civil penalty as set forth in paragraph 2 of this Settlement Agreement and in light of the corrective actions taken by ROCM, the Staff agrees not to take any further enforcement action against ROCM and all former and present shareholders, directors, officers, and agents (all of whom are referred to by, and included in the definition of, the term "ROCM" as used throughout this Agreement) based upon the facts or violations cited in the NOV-ROCM, any matter within the scope of the inspection conduct &f from Itbruary 2-March 11,1993, documented in Inspection Report No. 030-32493/93-001, and any matter within the scope of Ol's investigation, as documented in Investigation Report No. 1-93-030, dated September 3,1993.

6.

OSC and ROCM agree to make payments in twelve (12) equal monthly installments. The first payment is to be received thirty days after this Settlement Agreement has become fmal agency action (unless such day falls on a Saturday, Sunday or federal holiday, in which case payment is to be received by the next business day), plus interest on the unpaid principal balance accruing at the rate of 5 percent per year, as well as an administrative charge of $10.00 per month. Subsequent payments shall be received by the fifteenth day of each month thereafter. Payments shall be made payable to the United States Treasury and received at the address below continuing until the principal sum and all interest and other charges assessed under the provisions of this Settlement Agreement have been fully paid. Payments will be mailed to the following address:

U.S. Nuclear Regulatory Commission Office of Enforcement ATIN: James Lieberman Mail Stop - 07H5 Washington, D.C. 20555 106

He following is a schedule of monthly installments:

Payment Payment Total Interest Admin. Principal Remaining i

Number Date Payment Amount Amount Amount Balance Ileginning balance 140,000.00 1

12,000.00 583.33 10.00 11,406.67 128,593.33 2

12,000.00 535.81 10.00 11,454.19 117,139.14 3

.12,000 00 488.08 10.00 11,501.92 105,637.22 4

12,000.00 440.16 10.00 11,549.84 94,087.37 5

12,000.00 392.03 10.00 11,597.97 82,489.40 6

12,000.00 343.71 10.00 11,646.29 70,843.11 7

12,000.00 295.I8 10.00 11,694.82 59,148.29 4

8 12,000.00 246.45 10.00

!!.743.55 47,404.74 9

12,000.00 197.52 10.00 11,792.48 35,612.26 10 12,000.00 148.38 10.00 11,841.62 23,770.65 11 12,000.00 99.04 10.00 11,890.96 11,879.69 12 11,939.19 49.50 10.00 11,879.69 0.00 TOTAL I43,939.19 3,819.19 120.00 140,000.00 7.

In the event of a material breach of this Settlement Agreement, OSC and ROCM agree to pay all reasonable collection costs, court costs, and attorney's fees incurred by the Nuelear Regulatory Commission and/or the United States for any appropriate collection actions taken by the Nuclear Regulatory Commission and/or the United States. However, in no event will these costs exceed 5%

($18,000) of the total civil penalties imposed by the Staff's April 24, 1995 Orders.

8.

Failure or failures by the Staff to exercise any right in this Settlement Agreement with respect to a material breach shall not be construed as a waiver of its right to exercise the same or any other right at any time thereafter.

9.

With the exception of challenging the receipt of the requisite notice described in paragraph 2, in the event of a material breach of this Settlement Agreement, both OSC and ROCM do hereby authorize and empower a United States Attorney, any of his or her assistants, or any attorney for or on behalf of the NRC or the United States to enter and confess judgment against OSC and ROCM for the imposed civil penalties in the amount of $280,000 against OSC and $80,000 against ROCM, with interest as described in paragraph 6, less payments actually made (such payments will be apportioned equally between OSC and ROCM), in any court of record, Federal or State; to waive the issuance and service of process upon both OSC and ROCM in any suit on the obligation; to waive any venue requirement in such suit; to release all errors which may intervene in entering upon such judgment or in issuing any execution thereon; 107

1 and to consent to immediate execution on said judgment. Both OSC and ROCM do hereby ratify and confirm all that said attorney may do by virtue hereof.

10. The Staff, OSC, and ROCM agree that this Settlement Agreement shall not constitute and shall not be construed to constitute any admission or admissions in any regard by either OSC or ROCM of any matters set forth by the NRC in either the NOV-OSC or NOV-ROCM.

11. The Staff, OSC, and ROCM also agree that the matters upon which the NOVs were based have not been resolved as a result of this Settlement Agreenaent. This Settlement Agreement shall not be relied upon by any person or other entity as proof or evidence of any of the rnatters set forth in the NOVs.

12. For good cause shown, the Staff may, in writing, extend the time to complete any action set forth in any provision of this Settlement Agreement.

13. The parties agree and understand that this Sett!" ient Agreement is only binding on the NRC, OSC, and ROCM, and only relates to NRC's authority to take civil enforcement action. This Settlement Agreement shall be binding upon the legal representatives, successors and assigns of each of the parties hereto.

14. The Stafft OSC, and ROCM shall jointly move the Atomic Safety and Licensing Boards designated in the above-captioned proceedings for orders approving this Settlement Agreement and terminating the proceedings.

In Witness Whereof, the parties have caused this Settlement Agreement to be executed by their authorized representatives.

FOR ONCOLOGY SERVICES CORPORATION FOR THE NRC STAFF AND RADIATION ONCOLOGY CENTER AT MARLTON a

Many L. Colkitt Marian L. Zobler Secretary and General Counsel Counsel for NRC Staff for Oncology Services Corporation and Secretary and General Counsel for Radiation Oncology Center at Marlton Richard G. Bachmann Counsel for NRC Staff Dated at Rockville, Maryland, this 20th day of February 1996.

t 108

1 Directors' Decisions i

Under 10 CFR 2.206 l

t I

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Cite as 43 NRC 109 (1996)

DD-96-2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION William T. Russell, Director in the Matter of Docket No.50-029 YANKEE ATOMIC ELECTRIC COMPANY)

. (Yankee Nuclear Power Station)

March 18,1996 The Director of the Office of Nuclear Reactor Regulation denies a supple-mental petition dated Ftbruary 9,1996, filed with the Nuclear Regulatory Com-mission by Citizens Awareness Network and New England Coalition on Nuclear Pollution. The supplemental petition requests that the Commission:

(1) reverse the February.2,19% decision of the NRC Staff on the emergency aspects of a January 17, 1996 petition filed pursuant to 10 C.F.R. 6 2.206, and (2) require Yankee Atomic Electric Company to cease six unlawful decommissioning activ-ities and to direct the Staff to cease approving or acquiescing to such unlawful decommissioning activities. By Order dated February 15, 1996, the Commis-sion declined to reverse the February 2,1996 decision of the NRC Staff on the emergency aspects of the January 17,1996 petition, and directed the NRC Staff to address the arguments advanced by Petitioners at page 13 of the supplemental petition in a supplementary section 2.206 decision.

The Director denied the request to prohibit the conduct of six activities identified at page 13 of the supplemental petition because they are permissible prior to approval of a decommissioning plan, under the pre-1993 interpretation of the NRC's decommissioning regulations, and thus under Citizens Awareness Network inc. v. U.S. Nuclear Regulatory Commission and Yankee Atomic Electric Co.,59 F.3d 284 (1st Cir.1995).

109 s

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N SUPPLEMENTAI, DIRECTOR'S DECISION UNDER 10 C.F.R. I2.206 1.

INTRODUCTION 4

i i

On January 17,1996, Citizens Awareness Network and New England Coali-tion on Nuclear Pollution (Petitioners) submitted an " Emergency Motion for Compliance with Circuit Court Opinion" (petition). Petitioners requested that the United States Nuclear Regulatory Commission (NRC or Commission) take action with respect to activities conducted by Yankee Atomic Electric Com-pany (YAEC or Licensee) at the Yankee Nuclear Power Station in Rowe, Mas-sachusetts (Yankee Rowe or the facility). In particular, Petitioners requested that the NRC compiy with Citizens Awareness Netsvrk inc... United States Nuclear j

Regulatory Commission and Yankee Atomic Electric Co., 59 F.3d 284 (lst Cir.

1995) (CAN v. NRC), and that the Commission immediately order YAEC not to undertake and t,he Staff not to approve, and YAEC to cease, further major

{

4 i

dismantling activities or other decommissioning activitics, unless such activities are necessary to ensure the protection of occupational and public health and safety. Petitioners requested that the Commission prohibit five of nine activities that the Licensee proposed to conduct prior to approval of a decommissioning plan, which activities were evaluated by the Staff in a letter dated November 2, 1995.

4

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By letter dated February 2,1996, the NRC Staff declined to take emergency i

action to prohibit the Licensee's shipment of low level radioactive waste, and i

found that Petitioners' request to prohibit four other activities was moot.

By a supplemental petition, Petitioners requested the Commission to reverse the NRC Staff's February 2,1996 decision on the emergency aspects of the petition, and contended that the Staff had implicitly approved six additional activities, which the Licensee identified for the first time as under consideration in its January 29,1996 response to the petition, although the activities are not j

minor alterations to the facility, (A seventh activity was mentioned, but not contested). See Citizens Awareness Network's and New England Coalition on i

Nuclear Pollution's Motion for Exercise of Plenary Commission Authority to Reverse NRC Staff 2.206 Opinion (February 9,1996).

By Order dated February 15,1996, the Commission directed the Licensee to provide the NRC with at least 2 weeks' advance notice before engaging in any

(

of the seven new activities identified at page 13 of the supplemental petition, and directed the Staff to address the arguments advanced by Petitioners at page 13 of the supplemental petition in a supplementary 10 C.F.R. 9 2.206 decision.

}

i 4

110 4

1

f By letter dated Rbruary 16,1996, the Licensee notified the NRC Staff and Petitioners that YAEC intended to commence five activities between March 1, 1996, and March 25,1996.

On February 22,1996, the Staff issued a Director's Decision (DD-96-1,43 NRC 29) on the petition as a whole. The Staff denied Petitioners' request to prohibit the Licensee's shipments of Icw-level radioactive waste, and found four other activities contested by Petitioners to be moot.

By letter dated Rbruary 27,1996, the NRC Staff requested the Licensee to supply information regarding the seven activities ucatified by the supplemental petition, plus information regarding four other activities identified as ongoing j

in the Licensee's Janury 29, 1996 response to the petition. The Licensee responded by letter dated February 28, 1996, providing information regarding the eleven activities plus an additional activity, removd of the spent fuel pool upender. Three activities were ongoing, and the remaining nine were scheduled to commence between March 1,1996, and April 22,1996.

By letter dated March 1,1996, the Staff notified the Licensee that three ativities scheduled to commence March 1,1996, are permissible, before approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations, and thus, that there was no reason to take emergency action to prevent YAEC from starting or to order discontinuance of the ongoing activities. Additionally, the Staff found no health or safety reason for immediate NRC action.

The Staff has evaliiated the six ongoing and planned activities contested by the supplemental petition and the five additional activities identified in the Licensee's letters of January 29, 1996, February 16, 1996, and February 28, 1996. Two activities, removal of miscellaneous equipment outside the vapor container bioshield wall and preparation for decantamtmuni of the main coolant system (removal of spool pieces) wtac comp;e;ed in Rbruary 1996.

For the reasons discussed below, the St< h.is concluded that the activities are permissible, prior to approval of a decommissioning plan, under the pre-1993 inarpretation of the Commission's decommissioning regulations. Accordingly, Petitioners' request that the NRC prohibit YAEC from undertaking or continuing 2

the six contested activities identified at page 13 of the supp!emental Motion is denied.

+

I Decontanunauon at a nuclear plant is Rushmg of pipes, pumps pressure vessels, etc., with fluids to ren

• materials that are contanursated wnh radiation from the inner surfaces of these components.

I 111 1

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1 II. BACKGROUND As explained in detail in DD-96-1, Petitioners sought judicial review of 1

certain NRC actions, related to the Licensee's Component Removal Project (CRP). Petitioners challenged the CRP as an impermissible activity, before the approval of a decommissioning plan, under the pre-1993 interpretation of the j

Commission's decommissioning regulations.

On July 20,1995, the United States Court of Appeals held, in part, that the

]

j Commission had:

(1) failed to provide an opportunity for hearing to CAN, as required by section 189 of the Atomic Energy Act, in connection with the Commission's decision to permit the CRP decommissioning activities; and (2) i changed its pre-1993 interpretation of its decommissioning regulations without i

notice to the public and in violation of the Administrative Procedure Act. CAN

v. NRC, 59 F.3d at 291-92, 292-93. The coun remanced the matter to the Commission for proceedings consistent with the court's opinion.

The Commission implemented CAN v. NRC, in part, by issuing CL1 i 14, 42 NRC 130 (1995).

In CLI-95-14, the Commission reinstated its pre-1993 interpretation of its decommissioning policy, required the issuance of a notice of opportunity for an adjudicatory hearing on the Yankee Rowe decommissioning plan,2 held that YAEC may not conduct further " major" decommissioning activities at Yankee Rowe until approval of a decommissioning plan after completion of any required hearing, and directed YAEC to inform the 3

Commission withifL14 days of the steps it is taking to come into compliance with the reinstated interpretation of the Commission's decommissioning regulations.

CLI 95-14, supra.

1 i

i IIL DISCUSSION s

A.

The Licensee's Planned and Ongoing Activities Are Permissible, Prior to Approval of a Decommissioning Plan, Under the Commission's Pre 1993 Interpretation of Its Decommissioning Regulations, and Thus Are Permissible Under CAN r. NRC and j

CLI 9514 Petitioners contest six of the seven activities they mention in the supplemental j

petition on the ground that they do not constitute minor alterations to the facility, 4

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Pursuant to C1.I-95-14. a proceedmg was commenced to offer an opportumty for heanng on the tjcensee's decomnussiomng plan for Yankee Rowe. Peutsoners soughs intervemion and a heanng By an order dated March Yankee Atonuc Dectnc Company t_IgP.96-2. By order dated FebruaryI.1996, the Alonue Sa

27. 1996, the Comrmssion stayed any order of the Board insofar as it may have the effect of authormng decomnussiomng acuvities that were prohibsted pnor to approval of a decommissiomng plan.

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and thus are not permissible before approval of a decommissioning plan under the pre-1993 interpretation of the Commission's decommissioning regulations.

Specifically, Petitioners object to: (1) consolidation of sediment in the reactor vessel; (2) removal of miscellaneous safety injection building equipment; (3) installation of a temporary electrical system; (4) removal of pipe on the exterior of the vapor container; (5) removal of main coolant system insulation; and (6) installation of a temporary waste processing system. Petitioners do not object to decontamination of the main coolant system. Ihe Staff has also evaluated the

- following five activities identified by the Licensee in its letters of January 29, 1996, February 16,1996, and February 28,1996: (1) preparation for decontam-ination of the main coolant system - removal of spool pieces; (2) removal of miscellaneous equipment outside the vapor container bioshield wall; (3) removal 4

of primary auxiliary building tanks; (4) removal of turbine b iilding insulation; and (5) removal of spent fuel pool upender.

Under the Commission's pre-1993 interpretation of its decommissioning reg-ulations, a licensee "may proceed with some activities such as decontamination, minor component disassembly, and shipment and storage of spent fuel if the activities are permitted by the operating license and/or 950.59" prior to final approval of a licensee's decommissioning plan,5 as long as the activity does not involve major structural or other changes and does not materially and demonstra-bly affect the methods or options available for decommissioning or substantially increase the costs of decommissioning. Long Island Lighting Co. (Shoreham Nuclear Power StationWnit 1), CLI-90-8,32 NRC 201,207 n.3 (1990); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI@-2, 33 NRC 61, 73 n.5 (1991); and Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2,35 NRC 47,61 n.7 (1992).

Activities such as normal maintenance and repairs, removal of small radioac-tive components for storage or shipment, and removal of components similar to that for maintenance and repair also were permitted prior to approval of a decommissioning plan under the Commission's pre-1993 interpretation of the j

Commission's decommissioning regulations. See NRC Inspection Manual, ch.

2561, 9 06.06 (Issue Date: 03/20/92).*

Under the pre-1993 interpretation of the Commission's decommissioning regulations, examples of activities that were conducted at various facilities under 3 statenrnt of Consideranon. " General Requirenents for Decomnussiomng Nuclear Facibues." 53 red. Reg.

21.018,24.025-26 Oune 27.1988)

• " Examples of modiricauons and activines. that are allowed dunng the post-operanonal A c [the interval between permanent shutdown and the NRC's approval of the tacensee's decomnussiomng plan) are O) those that could be performed under normal nuuntenance and repair acuvines, (2) removal of certain. relauvely small radioacuve components. such as control-rod dnve mechamsm. contr<,1 rods, and acre internals for disassernbly, and storage or stupment. (3) removal of nonradioacuve components and structures.wt required for safety in the post-operanoaal phase. (5) shipnent on.eactor fuel offsite, and (6) acuvines related to n te and equipment radiauon i

and contanunanon characteruauon " /J 113 i

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a possession-only license, and which the Staff considered permissible before approval of a decommissioning plan included:

)

Shoreham' a.

Core borings in biological shield wall b.

Core borings of ihe reactor pressure vessel c.

Regenerative heat exchanger removal and disassembly d.

Various sections of reactor water cleanup system piping cut out and re-i moved to determine effectiveness of chemical decontammation processes i

being used j

e.

Removal of approximately half of reactor pressure vessel insulation and preparation for disposal f.

Removal of fuel support castings and peripheral pieces removed and shipment offsite for disposal at Barnwell, South Carolina g.

Reactor water cleanup system recirculation holding pump removed and shipped to James A. FitzPatrick Nuclear Power Plant h.

Control-rod drive pump shipped to brunswick Nuclear Station

i. One full set of contrel-rod blade guides sold to Carolina Power and Light Company

j. Control-rod drives removed, cleaned. nd stored in boxes for salvqe j

k.

Process initiated for segmenting and removing reactor pressure vessel cavity shield blocks 1.

Process initiated for removal of instrument racks, tubing, conduits, walk-ways, and pipeinsulation presenting interferences for decommissioning activities and/or removal of salvageable equipment Fort St. Vrain a.

Control-rod drive and orifice assemblies and control rods removed from core during defueling and shipped offsite for processing or disposal as low-level waste b.

All helium circulators removed and shipped offsite for disposal c.

Core region constraint devices (internals) removed and approximately one. half shipped offsite for disposal d.

About 50 core metal-clad reflector blocks stop layer of core) removed and stored in fuel storage wells Removal of remaining hexagonal graphite reflector elements, defueling c.

elements, and metal-clad reflector blocks begun f.

Prestressed concrete reactor vessel (PCRV) top cross-head tendons and some circumferential tendons detensioned 5 See tener dated December 11.1991. from John D teonard. Jr., Long Island Lighting Company, to U.s Nuclear Regulatory Comnusnon, Docket No. 50 322 -

• Sce tener dated september 4.1992. from Donald M Waremhourg. Pubhc service Company of Colorado, to the U.S Nuclear Regulatory Comnusson. Docket No. 50 267.

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g.

Some detensioned tendons removed from PCRV h.

Work initiated to cut and remove PCRV liner cooling system piping presenting interferences to detensioning of PCRV tendons, and

i. Asbestos insulation completely removed from piping under PCRV In its letter of November 2,1995, the NRC Staff identified certain activities, although not proposed by the Licensee. which may not be conducted before reapproval of a decommissioning plan. Those activities include dismantlement of sprems such as the main reactor coolant system, the lower neutron shield tank, vessels that have significant radiological contamination, pipes, pumps and oth-uen emponents and the vapor container (containment). The Staff also 1cnthied regruntation or removal of the reactor vessel from its support structure 4s a major distrientlement not to be conducted until after the decommissioning p' m is reapprove d.

U;vn review..f the supplemental petition and the Licensee's letters of January 3,19%, Feb~ary 16, 1996, and Ebbruary 28,1996, the Staff concludes that the eleven pl amed and ongoing activities are permissible, prior to approval of a decomndssioning plan, under the pre-1993 interpretation of the Commission's hemissioning regulations.

1.

Consolidation of Sediment in the Reactor Vessel This item is a decontamination activity. It involves flushing loose radioactive material from the bottoTn ~ f the reactor vessel (RV) and binding it in a solid mass o

inside the RV, in a centralized volume and, thus, displacing the contamination from the lower head of the vessel. This activity results in a large reduction of external dose during later removal and shipping of the vessel, and in a reduction of external dose to personnel who must perform day-to-day maintenance and monitoring activities.

In view of the above, this activity is permissible, before approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations.

2.

Remom! of Miscellaneous Safety injection Building Equipment

'Ihis activity entails the removal of mechanical and electrical equipment and l

some seismic reinforcement that is no longer required in the Safety Injection I

Building. The components involved in this activity are small, and constitute I

a minor decommissbning activity. Similar activities were conducted at the Shoreham plant prior to decommissioning plan approval. See items e, d, and g, above. Accordingly, thi,s activity is pernJssible prior to approval of a I

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decommissionir.g plan under the pre-1993 interpretation of the Commission's decommissioning regulations.

3.

Installat*on of a New Electrical System nis activity is not decommissioning. This activity is part of the Licensee's overall project to enhance the safety of the spent fuel pool by estabbshing independent systems dedicated to spent fuel pool reliability, aid is consistent with NRC Bulletin 94-01, " Potential Fuel Pool Draindown Caused by Inadequate Maintenance Practice at Dresden Unit 1" (April 14,1994). Invallation of the new electrical system involves installation of power supply and : witching capability to the previously installed eL:ctrical conduit, which conduit installation the Staff found to be permissible prior to approval of a decommissioning plan.

See DD-96-1, Section Ill.A.7.

Accordingly, this activity is permissible before approval of a decommission-ing plan under the pre-1993 interpretation of the Commission's decommission-ing regulations.

4.

Removal of Pipe on the Exterior of the Vapor Container These pipe lines are located outdoors beneath the vapor container and are in secondary-side systems, such as piping carrying steam from the secondary side of the steam generator to the turbine. Because this involves the removal of piping from the secondary side, it is not a major decommissioning activity.

Similar activities were conducted at the Shoreham plant (see items d and g, above) and at the Fort St. Vrain plant (see item b, above) prior to approval of the decommissioning plans.

in view of the above, this activity is permissible, before approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations.

S.

Removal of Alain Coolant System insulation This insulation will not be removed until after the decontamination ef the main coolant system. This insulatie is not a major component and its removal is, therefore, not a najor decommissioning activity. Similar activities were conducted at the Shoreham plant (see item e, above).md at the Fort St. Vrain plant (see item i, above) prior to approval of the decommissioning plans.

In view of the above, this activity is permissible. before approval of a decommissioning plan, under the pre-1993 interpretatica of the Commission's decommissioning regulations.

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6.

Installation of a Temporary Waste Processing System This activity is not decommissioning. It is permitted by the Defueled Tech-nical Specifications, an appendix to the POL The activity involves installation of a liquid waste processing system designed to process spent fuel pool water by removing contaminants. The activity will increase assurance of satisfactory long-term operation of the spent fuel pool and is, therefore, a safety enhance-ment.

In view of the above, this activity is permissible, before approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations.

7.

Preparation for Decontamination of the Main Coolant Fystem -

Remomi of Spool Pieces his is a decontamination activity that involved the removal of eight spool pieces, and was co,mpleted in Ibbruary 1996. It was part of an ongoing project, preparation of pipe flanges for the chemical decontamination of the main coolant system.

Because this action is in preparation for decontamination and without which decontamination could not proceed, this activity is permissible. Decontamina-tion is permissible, before approval of a decommissioning plan, under the pre.

1993 interpretation of_41w Commission's decommissioning regulations. In any event, the petition, insofar as it can be inferred to request action in this matter, is moot.

& Remomi of Miscellaneous Equipment Outside the Vapor Container Bioshield Wall His activity involved the removal of heating and ventilating equipment from the Vapor Container, and was completed in mid-Itbruary 1996. The components removed are minor and do not constitute a major decommissioning activity.

Similar activities were conducted at the Shoreham plant prior to approval of the decommissioninF plan. See items e and d, above.

Accordingly, this activity is permissible, before approval of a decommission-ing plan, under the pre-1993 interpretation of the Commission's decommission-ing regulations. In any event, the petition, insofar as it can be inferred to request action in this matter, is moot.

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9.

Removal of Primary Auxiliary Building Tanks l

This activity involves the removal of four low-pressure or drain tanks from l

the primary auxiliary building, because they are not needed to support operation I

of the spent fuel pool. Two of the tanks were removed during libruaiy 1996.

Similar activities were conducted at the Shoreham plant prior to approval of I

the dummissioning plan. See items c, d, and g, above. This is not a major decommissioning activity because the removed equipment involves minor components.

In view of the above, this activity is permissible, before approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations.

10. Remom! of Turbine Building insulation his is an ongoing activity involving the removal of non-radioactive material from a noncontaminated area of the plant. His is not a decommissioning activity.

Accordingly, this activity is permissible, before approval of a decommission-ing plan, under the pre-1993 interpretation of the Commission's decommission-ing regulations.

I1. Removal of SpeniFuel Pool Upender his device was used during reactor operations to transfer fuel, during reload outages, into the vapor container. The upender is not needed to support storage J

of fuel in the spent fuel pool. The upender is not a major component or structure and, therefore, this is not a major decommissioning activity. Similar activities l

were conducted at the Shoreham plant (see items d and f, above) and at Fort St.

I

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Vrain (see item a, above) prior to approval of the decommissioning plan.

In view of the above, this activity is permissible, before approval of a decommissioning plan, under the pre-1993 interpretation of the Commission's decommissioning regulations.

I B.

The Eleven Ongoing and Planned Activities Will Neither Individually nor Collectively Substantially increase the Costs of Decommissioning l

YAEC estimates the cost of the six activities contested by Petitioners and the five additional planned and ongoing activities to be approximately $6.0 million.7 YAEC estimates the cost of the previously contested five activities to be $6.5 i

7 See NRC tener from Ruswil A. Mellor. YAEC. to Monon B 11urule. NRC. dated february 28.1996 l

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million. See DD-96-1, Section Ill.B. The total cost of all activities that have been evaluated by the Staffis approximately $12.5 million or 3.4% of the estimated

$368.8 million total decommissioning cost. It would be speculative to conclude that the decommissioning method proposed by Petitioners, SAFSTOR, would be less expensive. Moreover, there is no evidence that the combined activities will give rise to consequences that will increase the total cost of decommissioning.

Thr, the Staff concludes that there is no evidence the combined activities will substantially increase the costs of decommissioning.

C.

The Activities Contested by Petitioners Will Neither Individually nor f

Collectively Demonstrrbly Affect the Methods or Options Available j

for Decommissioning i

As the Staff explained in DD-96-1, the criteria for determining whether the Licensee's planned and ongoing activities will demonstrably affect the methods or options available for decommissioning have not been well defined.

During review of-the petition and the supplemental petition, the NRC Staff has continued to examine the question of whether the Licer.see's activities will demonstrably affect the methods or options available for decommissioning. In this case, the Staff has now also compared the radiation Jose involved in the contested activities with the radiation doses estimated for decommissioning of the Licensee's facility. 'Ihis is because, under Petitioners' theory regarding the choice of the decoiiinissioning option, as we understand it, it seems that adoption of a different decommissioning option would most likely be required to reduce dose.

The Licensee estimates that the radiation dose involved in the six activities contested by the supplemental petition is 23.6 person-rem.' The Licensec esti-mates that the radiation dose involved in shipment of low-level radioactive waste, contested in the petition, is 17 person-rem.' The Licensee estimates that the ra-diation dose involved in the other four activities contested by the petition is 24.7 person-rem." Accordingly, the radiation dose involved in all activities contested j

sThe licensee estimates the radianon dose to be 13 8 person-rem for 60nschdation of sediment in the Reactor Vessel; 04 person rem for removal of nuscellaneous safety injecuan Buildmg equipment. 0.5 person rem for instalianon of a temporary electncal system; 04 person-rem fer removal of pipe on the extenor of the Vapor Contaner; 7.7 person-rem for removal of main coolant system insulauon; and 0 8 person-rem for installation of a temporary waste processing system. See letter dated February 28.1996, from Russell A. Mellor. YALC, to Morton B. Fairtile. NRC.

i

'See letter dated Fvbruary21,1996 from K. J. Hender. YAEC. to Morton B. Fairule. NRC.

"The ljcensee esumates the radiation dose to be 4 rrson-rem for fuel chute isolation and neghgible for spens fuel pool electncal conduit instalianon. See letter daied february 21 1996, from K. J. Heider. YAEC. to Morton B. Faimie, NRC. The Staff esumates the radiahon dose to be 19 7 c suon-rem from compleuon of removal of the remamng poruons of the upper neuttbn shield tank, and 10 pernon-rem from removal of component coohng water system pipes and components and spent fuel coohng system pipes and components based on a eclephone conversanon with the Licensee on March 15. 1996.

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by Petitioners is approximately 65.3 person-rem. Thus, the estimated dose from the contested activities is less than 10% of the total 755 person-rem estimate l

for total radiation exposure from decommissioning Yankee Rowe." The Staff estimates that the remaining estimated dose from decommissioning activities at Yankee Rowe is, at the most, approximately 358 person-rem.82 Thus the estimated dose from the activities contested by Petitioners is approximately 4

j 18.3% of the remaining dose from decommissioning the facility.u Accordingly, j

the Staff concludes that the contested activities will not demonstrably affect the l

methods and options available for decommissioning.

It is not possible to determine with precision how much of the 65.3 person-1 rem involved in the contested activities might be avoidable by using the j

SAFSTOR option, i.e., by delaying completion of those activities for several I

]

decades to allow for radioactive decay. But even if the entire 65.3 person-rem could be counted as part of the potential SAFSTOR dose savings (an unlikely situation), the SAFSTOR dose savings still available is substantially more than the 65.3 person-rem " lost" by carrying out the contested activities now. Thus, l

even in an unlikely worst case, the SAFSTOR option would be substantially preserved. Accordingly, the Staff concludes that the contested activities will not demonstrably affect the methods and options available for decommissioning j

In sum, the NRC Staff will not take action to halt relatively minor YAEC i

activities, many of which are closely similar to ones allowed at Shoreham and Ft. St. Vrain, where there is no evidence that these activities are consuming a

{

significant portion of IEe remaining radioactive dose at Yankee Rowe. In the Staff's judgment, the prohibition against dismantling major systems, such as the reactor vessel and other reactor components with substantial contamination,

sufficiently preserves the possibility of ultimately moving to the SAFSTOR option, should that be the result of the still-pending challenge to YAEC's decommissioning plan.

"See order Approving the Decomnussioning Plan and Authonzing Decommissiomng of Facility (Yankee Nuclear Power stauon),"Environnemal Assessment by the U.S. Nuclear Regulatory Commissmn Related to the Request to Authorne Facihty Decomnussiomng." at 22.

1 12 To esumate the remmmng dose from decomnussiomng, the staff subtracted, from the 755 person-rem estimate for total allotted dose, the personnel exposures reported for calendar years 1993,1994. and 1995 or 163,156. and 78 person-rem. respecovely. See "Personne) Exposure Report by Duty f%nction and to CFR 20.407 Personnel Momtonng Report." dated December 31, 1993 December 31. 1994, and December 31. 1995. Tim resulung i

enumate of approximately 358 person-rem may be an underesumate of the remaimng available exposure. Some of the dose from 1993 includes nondecost.nusuomng activities and 30 of the dose from the contested activities was incurred dunns calendar year 1995. but should not be counted as expended for purposes of esumating remaming l

dose U DDL961 compared the dose from the contented shippmg acuvity to the total radiation exposure from decom-nussmmng. see secemn 111 B 9 It is, however. preferable to use the more sopiusticated approach of companng dose from contested acovmes to the remanmng radiacon exposure from decomnussiomng. Nonetheless, under both approaches the staff concludes that the contested acuvmes will not demonstrably affect die opuons and methods available for decomnussmrung 3*See tener dated November 2.1995. from Morton B. Fairtile. NRC, to James A. Kay. YAEC.

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IV. CONCLUSION Ibr the reasons given above, Petitioner's request to prohibit six activities is denied. Those activities, plus an additional five activities identified by the Licensee as planned or ongoing, are permissible prior to approval of a decommissioning plan under the pre-1993 interpretation of the Commission's decommissioning regulations.

As provided by 10 C.F.R. I 2.2%(c), a copy of this Decision will be filed with the Secretary of the Commission for the Commission's review. The Decision will become the final action of the Commission 25 days after issuance, unless the Commission on its own motion institutes review of the Decision within that time.

FOR THE NUCLEAR REGULATORY COMMISSION William T. Russell, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 18th day of. March 1996.

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