ML20128K411
| ML20128K411 | |
| Person / Time | |
|---|---|
| Site: | Yankee Rowe |
| Issue date: | 09/30/1996 |
| From: | Block J, Curran D CITIZENS AWARENESS NETWORK, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#496-17946 DCOM, LBP-96-18, NUDOCS 9610110062 | |
| Download: ML20128K411 (13) | |
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UNITED STATES OF AMERICA 2
gEP 30 21 Before the d
NUCLEAR REGULATORY COMMISSION g
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Yankee Atomic Electric Company
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Docket No. 50-029--
DI L (Yankee Rowe Nuclear Power Station)
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Decommissioning
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September 30, 1996 CITI2 ENS AWARENESS NETWORK'S AND NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S MOTION FOR STAY OF LDP-96-18 I.
INTRODUCTION Pursuant to 10 C.F.R.
S 2.788, intervenors, Citizens Aware-1 ness Network ("CAN") and the New England Coalition on Nuclear Pollution ("NECNP"), hereby request the Commission to stay the effectiveness of the Licensing Board's of this proceeding, beyond the twelve-day stay imposed by the Board in LBP-96-18, Memorandum and Order (Granting Motion for Summary Disposition) at 36 note 18 (September 27, 1996).
As demonstrated below, a stay is warranted pending consideration of intervenors' petition for review.
II.
FACTUAL BACKGROUND This proceeding originated in 1992, when CAN petitioned the NRC for a hearing on YAEC decommissioning activities known as the Component Removal Program ("CRP"), under which YAEC removed the steam generators and reactor vessel internals, prior to the sub-mission of a decommissioning plan or the NRC's offer of an opportunity for a public hearing.
In citizens Awareness Network
- v. NRC and YAEC, 59 F.3d 284 (1st Cir. 1995), the First Circuit ruled that the Commission had unlawfully permitted YAEC to con-duct major decommissioning activities without first obtaining approval of a decommissioning plan.
In response, the Commission offered the public an opportunity to request a hearing on YAEC's 9610110062 960930 ADOCK0500g9 gY')
PDR G
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-2 plan.
i Intervenors submitted a number of contentions, all of which the Licensing Board rejected in LBP-96-2.
43 NRC 61, 91-92 (1996).
In CLI-96-7, the Commission reversed and remanded LBP-96-2 for an inquiry into whether intervenors could justify admis-sion of a contention to the effect that the dose differential l
between the DECON and SAFSTOR alternatives for Yankee Rowe exceeds the 900 person-rem threshold established by the Commis-sion in CLI-96-1, 43 NRC 235 (1996).
The Board tduitted such a contention in LBP-96-15, 44 NRC 8, 22 (1966).
Pursuant to the Commission's directive in CLI-96-7, the Board established a tight litigation schedule, which included four weeks for discovery and a total of a week and a half for summary disposition pleadings.
LBP-96-15, Appendix 1.
Inter-venors had only seven days to respond to YAEC's motion, in con-trast to the standard twenty days provided by the Commission's summary disposition rule, 10 C.F.R.
S 2.749.
YAEC's reply was due three days later, and the Board scheduled its own ruling to follow two weeks after, on September 27.
On September 27, the Board issued LBP-96-18, which granted YAEC summary disposition.
III.
THIS CASE SATISFIES THE COMMISSION'S STAY STANDARD.
A.
Intervenors Have Made a Strong Showing That They Are Likely to Prevail on the Merits.
The central focus of LBP-96-18, and the source of the Board's most crucial errors, is the comparison of YAEC's and intervenors' dose estimates for YAEC's remaining "to go" decom-missioning activities.
The Board either ignored or unreasonably discounted intervenors' material factual evidence which
i
. undermined YAEC's claim that the "to go" dismantling dose is 91 person-rems.1 As a result, the Board unlawfully shifted the bur-den of proof from YAEC to intervenors.
In particular, the Board made the following errors:
- 1. The Board erred in denying CAN's and NECNP's Motion for Leave to Reply to YAEC's Reply Memorandum (Summary Disposi-tion) (September 17, 1996) (hereinafter " Leave Motion").
LBP 18, slip op. at 7-8.
note 7.
The Board faulted intervenors for j
filing their Reply to YAEC's Reply Memorandum (hereinafter
" Reply") on the same date as their Leave Motion, in contravention of the Board's order in LBP-96-15 that leave must be sought 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> in advance of filing the Reply.
Id.
Intervenors submit that the error was both excusable and harmless, and indeed appeared to have been excused by the Licens-ing Board.
Upon receiving YAEC's Reply Memorandum on September 13, intervenors sought to reply to YAEC's unwarranted attacks upon their expert witness's credentials, as well as new arguments that intervenors' Opposition to YAEC's Motion for Summary Dis-position had ignored or misinterpreted information provided by YAEC in discovery regarding decommissioning doses.
Aware that they must reply quickly if they were to have meaningful input to the decision that was due September 27, intervenors worked quickly and under immense pressure, inadvertently overlooking the Board's instruction to file the Leave Motion before the Reply.
Not only was this error understandable in light of the 1
YAEC provides the 91 person-rem figure in Column 5 of a table attached to the Affidavit of Russell A.
Mellor (September 3, 1996).
. extraordinary time constraints placed on intervenors by the Board's schedule, but the Board appeared to excuse it in an Order issued two days after intervenors filed their pleadings.
Order (Prior Board Approval of Further Summary Disposition-Related Filings) (September 19, 1996).
The Order stated that "[a)ny party wishing to make a further filina" relating to YAEC's sum-mary disposition motion must obtain prior Board approval.
Id.
(emphasis added).
Intervenors reasonably interpreted the Board's reference to "further filings," and its failure to reject or make I
any mention at all of intervenors' Reply, to mean that the Board did not intend to reject intervenors' Reply merely because it had been filed jointly with the Leave Motion.
Indeed, given the tight constraints on the decisionmaking schedule, it would have been a futile gesture for intervenors to withdraw the Reply pend-1 ing the Board's decision on the Leave Motion.
Moreover, inter-venors' error was harmless.
The Board was free to ignore inter-venors' Reply in considering the Leave Motion.
Thus, the Commis-sion should reverse the Board's rejection of intervenors' Leave Motion and order the lodging of the Reply.2 2.
In several crucial respects, the Board ignores or discounts intervenors' evidence which creates a genuine dispute with YAEC's "to go" dismantling dose estimate of 91 person-rems.
First, in defending YAEC's dose estimate methodology, the Board 2
The Board claims that even if it had admitted the Reply, it would have made no difference to its decision.
LBp-96-18, slip op. at 8, note 7.
As discussed below, this determina-tion is also in error.
F ignores intervenors' evidence that YAEC's claims to accuracy in dose projections are unfounded.
While YAEC may be reasonably accurate in projecting near-term activities through ALARA evalua-tions, it has been significantly off-base in calculating longer-term decommissioning doses.
Affidavit of Marvin Resnikoff, I
Ph.D.,
par. 30 (September 6, 1996) (hereinafter "Resnikoff l
Aff."); Intervenors' Statement of Material Facts in Dispute, par.
3.f (September 10, 1996).
Second, the Board wrongly discounts the intervenors' evi-dence that further dismantling activities will be dirty, on the ground that YAEC intends to decontaminate structures before it dismantles them, thereby minimizing contamination.
Id., slip op.
at 29-31.
The Board simply ignores the fact that "decontamina-tion," as defined by YAEC in its own Decommissioning Plan, involves such obviously dusty and dirty activities as " carbon dioxide blasting," " hydro blasting," and " abrasive blasting."
Second Reply Affidavit of Marvin Resnikoff, Ph.D, par. 15 (Sep-tember 17, 1996) (hereinafter "Second Resnikoff Aff."), citina YAEC Decommissioning Plan, Table 2.3-2.
Third, the Board claims that intervenors failed to support their assertion that the decommissioning process is likely to take another 2.5 years rather than 1.5, as estimated by YAEC; or that based on the pattern of past experience, the average dose during this period is likely to be about 160 person-rems / year.
14,, slip op. at 32-34.
With respect to the time frame, YAEC itself has stated that decommissioning activities are 60% com-
._ plete at Yankee Rowe.
Supplemental Affidavit of Russell A. Mel-lor, par. 16 (September 13, 1996).
This is based not on a per-centage of doses or residual radioactivity, but on the percentage of time spent on decommissioning activities.
Supplemental Affidavit of Russell A. Mellor, par. 7 (September 3, 1996).
By i
applying simple mathematics to Mr. Mellor's assertion, Dr. Res-nikoff correctly and reasonably estimated that if it took YAEC four and a half years to complete 60% of its decommissioning tasks, it will take another 2.5 years to finish.
Resnikoff Reply Affidavit, par. 17.
Thus, intervenors demonstrated that by Mr.
Mellor's own calculation, a projection of 1.5 more years does not make sense.
The Board also wrongl5 claims that the intervenors' estimate of 160 person-rems / year for "to go" dismantling activities is
" speculative," and based on a " proportionality" theory.
LBP 1 18, slip op. at 28.
As intervenors have demonstrated, YAEC's dose estimates have been historically low, and are only improved when consideration is restricted to ALARA reviews for near-term activities.
Resnikoff Aff. par. 30, Second Resnikoff Aff. par.
16.
Moreover, YAEC's assertion that it has provided detailed dose information regarding all its "to go" activities is belied by the documents provided in discovery, which show that for a number of important activities, information on hours and dose rates is either " preliminary" or absent.
Resnikoff Reply Affidavit, par. 13.
Significantly, intervenors' evidence is not based on a " proportionality" theory.3 Rather, it is based on (a) 3 Intervenors note that the " proportionality" theory originated
. 4 the pattern established by YAEC's decommissioning activities,
(b) the fact that YAEC has done nothing to demonstrate that its long-term dose estimates are any less speculative than they were in 1993, and (c) the nature of anticipated decommissioning i
activities.
Resnikoff Aff. pars. 29-33, Second Resnikoff Aff.
pars. 12-18.
As such, intervenors provide ample evidence to controvert YAEC's assertions and warrant a trial on the merits.
B.
Failure to Stay the Effectiveness of LBP-96-18 Will Cause Irreparable Injury to Intervenors.
Within approximately one week, the staff may be expected to l
l I
l take licensing action soon and allow YAEC to resume and complete 1
the decommissioning of the Yankee Rowe site.
10 C.F.R. 5 2.764 (b. )
The imminent activities include removal of the reactor 1
vessel and lower neutron shield, as vell as other major decommis-l sioning activities.
CLI-36-6, 43 NRC at 130.
As stated in its l
i j
license amendment application, YAEC intends to decommission and ship as much low level radioactive waste ("LLRW") as possible, as e
soon as possible.
Final Safety Analysis Report at 4.
If YAEC is s
allowed to decommission ma]or components and remove LLRW from the facility while intervenors' appeal is pending, intervenors will suffer the following irreparable injuries:
(continued) not with intervenors but with YAEC, in trying to justify pre-plan-approval decommissioning activities.
Letter from Andrew C.
Kadak, YAEC, to William T. Russell, NRC at 5 (January 29, 1996).
Intervenors have not relied on it in this summary i
disposition proceeding.
4 Notably, in the first half of 1996, when YAEC allegedly was engaged in only " minor" decommissioning activities, YAEC incurred over 78 person-rems.
See CLI-96-6, 42 NRC 123, 131-132 (1996); Resnikoff Affidavit, Table 2.
1
. First, YAEC's actions will irreparably injure intervenors by forever precluding consideration of the SAFSTOR alternative advo-cated by petitioners, i.e.,
extended onsite storage.
Lona Island Liahtina Co. (Shoreham, Unit 1), CLI-92-4, 35 NRC 69 (1992)
(holding that no irreparable harm was demonstrated where licens-ing action could not " foreclose a decommissioning option.")
This would deprive intervenors of meaningful consideration of decom-missioning alternatives under the ALARA principle, and would vio-late NEPA by foreclosing any meaningful consideration of alterna-tives through issuance of e supplemental Environmental Impact Statement.
Thus, failure to grant the requested stay would allow implementation of the decommissioning plan and deprive i
petitioners of any meaningful appeal.
Second, failure to stay the Board's decision will result in irreparable radiation injuries to workers and the public.
It is uncontested that implementation of the DECON alternative, as pro-posed by YAEC, would result in greater radiation doses to workers and the public than an extended SAFSTOR period.5 This is because the radioactivity levels in LLRW decline significantly over a period of 30 to 50 years.
GEIS, Table 4.3-2.
Ac demonstrated in the Resnikoff Affidavit, par. 32, a rea-sonable "to go" estimate for the remainder of Yankee Rowe decom-missioning is 400 person-rem.
A total exposure to workers of 400 person-rems corresponds to 0.3 to 1.2 additional latent cancer 5
These doses include relatively high public exposures during transportation, which were not considered in the GEIS.
See Resnikoff Aff., pars. 43-46.
1.
l fatalities plus an equivalent number of health and genetic effects.6 Therefore, YAEC's immediate decommissioning activities will cause workers and the public to suffer irreparable injury and deaths which implementation of the SAFSTOR alternative could avoid.
Unless the Commission stays LBP-96-18, these effects will not be redressable by a favorable decision on appeal, l
l C.
Issuance of a stay Would Not Harm YAEC.
l Issuance of a stay pending review o'f this case by the Com-mission would not harm YAEC.
A delay of several weeks or months in decommissioning or offsite low level radioactive waste ship-ments would have no irretrievable effects on YAEC's ability to decommission the Yankee Rowe site.
Moreover, as the Commission has previously ruled in this case, "(p]ossible delay and finan-cial impacts" on YAEC "cannot excuse the Commission from provid-ing CAN a meaningful remedy to effectuate the court's decision" in Citizens Awareness Network v. NRC, 59 F.3d 284.
The Commis-sion's reasoning in CLI-95-14 continues to apply here, where CAN and NECNP seek to overturn the Licensing Board's unlawful grant of summary disposition, and vindicate their right under the Atomic Energy Act to a full and fair hearing on their challenge to YAEC's chosen decommissioning alternative.
Finally, in view l
6 Citizens Awareness Network's and New England Coalition on Nuclear Pollution's Petition to Intervene and Supplemental Petition to Intervene at 29 (November 30, 1995), as supported by the Affidavit of Dr. Marvin Resnikoff (November 30, 1995),
and the following documents:
National Academy of Sciences, Health Effects of Exposure to Low Levels of Ionizing Radia-tion, BEIR V at 162 (1990); Gofman, Radiation and Human Health at 314 (Sierra Club Books:
1981).
. of.the Commission's previous decision to expedito this case in order to mitigate any financial harm to YAEC, intervenors are prepared to file their petition for review by Friday, October 4.7 D.
Issuance of a stay Would Serve the Public Interest.
Finally, the public interest would be served by the issuance of a stay.
Intervenors have raised significant questions regard-ing YAEC's methodology for measuring the occupational and public health impacts of its chosen decommissioning alternative.
Inter-venors have also demonstrated the existence of significant dose contributors ignored by the Licensing Board, YAEC, the NRC staff, and/or the 1988 GEIS.
These include but are not limited to high public doses during transportation, inhalation doses, operation and maintenance doses, doses incurred directly following plant closure, and hot particle doses.s It also raises the issue of whether the Commission should accept licensee representations regarding site characterization, when no Site characterization Plan or Site Characterization Report has been submitted, in violation of NRC staff guidance in Draft Branch Technical Posi-tion on Site Characterization for Decommissioning (November 1994).
In order to fully exercise its responsibility to protect public health and safety, the commission should act to protect the integrity of the hearing process while making its inquiry.
7 Pursuant to 10 C.F.R.
S 2.786, Intervenors have fifteen days 7
or until October 14 to file a petition for review.
s Some of the issues were not reached by the Board; others were disposed of unfavorably.
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IV.
CONCLUSION
]
For the foregoing reasons, the Commission should stay the effectiveness of LBP-96-18 until it has completed its review.
4 Respectfully submitted, 3
I (LC i
Di ne Curran Harmon, Curran, and Spielberg 2001 "S" Street N.W.
Suite 430 i
Washington, D.C, 20009 (202) 328-3500 C
k A1, d/ocAhC nathan M.
Block P.O.
Box 566 1
Putney, VT 05346
{
(802) 387-2646 Counsel to CAN and NECNP September 30, 1996 i
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4 CERTIFICATE OF SERVICE I, Diane Curran, certify that on September 30, 1996, copies of the foregoing CITIZENS AWARENESS NETWORK'S AND NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S MOTION FOR STAY OF LBP-96-18 were served by first class mail and/or by FAX on the following, as indicated below:
- Docketing and Service U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 Office of Comm. App. Adjudication Mail Stop 016-G-15 U.S.
Nuclear Regulatory Commission Wa'shington, D.C.
20555
- Thomas G.
Dignan, Jr.,
Esq.
R.K.
Gad III, Esq.
Ropes & Gray one International Plaza Boston, MA 02110-2624 1
- Eugene J. Holler, Esq.
Office of General Counsel 11545 Rockville Pike Rockville, MD 20852 Leslie B.
Greer, Esq.
Assistant Attorney General Office of the Attorney General Trial Division 200 Portland Street Boston, MA 02114 Jay DiPucchio, Administrator Franklin County Commission Courthouse - 425 Main Street Greenfield, MA 01301-3330 G.
Paul Bollwerk, III, Chairman Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
s 6
< A k
Dr. Jerry R. Kline cp ff0 Atomic Safety and Licensing Board m
U.S.
Nuclear Regulatory Commission C
Sgg 3D'$
B Washington, D.C.
20555 gC Dr. Thomas S.
Elleman g
704 Davidson Street
/
Raleigh, NC 27609 21 O
Atomic Safety and Licensing Board Panel Mail Stop T-3F23 U.S.
Nuclear Regulatory Commission Washington, D.C 20555 Jonathan M.
Block, Esq.
Main Street, Box 566 Putney, VT 05346-0566
- Shirley Ann Jackson, Chairman U.S. Nuc.i. ear Regulatory Commission Washington, D.C.
20555
- Kenneth C.
Rogers, Commissioner U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- Greta J.
Dicus, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Nils J.
Diaz, Commissioner U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- Edward McGaffigan, Jr., Commissioner U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Diane Curran Also by FAX