ML20129D469

NRC Staff Response Opposing Intervenors Petition for Review of LBP-96-18.* NRC Recommends Denial of Intervenor Review Petition Due to Failure to Present Substantial Question for Review Per 10CFR2.786(b)(4).W/Certificate of Svc

ML20129D469
Person / Time
Site:	Yankee Rowe
Issue date:	10/10/1996
From:	Holler E, Marian Zobler NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#496-17983 DCOM, LBP-96-18, NUDOCS 9610250039
Download: ML20129D469 (12)

Text

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i iWrS l 00CKEIED

. USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'96 0CT 10 P1 :58 BEFORE THE COMMISSION OFFICE OF SECRETARY j DOCKETit,G & SERVICE '

ERANCH In the Matter of )

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YANKEE ATOMIC ELECTRIC COMPANY ) Docket No. 50-029-DCOM i

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(Yankee Nuclear Power Station) )

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l NRC STAFF'S RESPONSE OPPOSING INTERVENORS' PETITION FOR REVIEW OF LBP-96-18 Marian L. Zobler Eugene Holler Counsel for NRC Staff October 10,1996 1

9610250039 961010 DR ADOCK 050000 9 $p7

October 10,1996 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION j

BEFORE THE COMMISSION In the Matter of )

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YANKEE ATOMIC ELECTRIC COMPANY ) Docket No. 50-029-DCOM

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(Yankee Nuclear Power Station) )

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l NRC STAFF'S RESPONSE OPPOSING 1 INTERVENORS' PETITION FOR REVIEW OF LBP-96-18 l l

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INTRODUCTION  ;

l Pursuant to 10 C.F.R. I 2.786 of the Commission's regulations and the Commission's i Order, dated October 2,1996, the staff of the Nuclear Regulatory Commission (Staff) hereby responds to " Citizens Awareness Network's and New England Coalition on Nuclear Pollution's Petition for Review of LBP-96-18" (Review Petition), filed by Citizens Awareness Network and

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New England Coalition on Nuclear Pollution (Intervenors) on October 4,1996. For the reasons set forth below, the Intervenors' Review Petition should be denied as it fails to present a substantial question for review as required by the Commission's regulations in 10 C.F.R.

i 2.786(b)(4).

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_ . . _ _ . _ _ _ _ _ _ _ .l BACKGROUND On July 31,1996, on remand from the Commission, the Atomic Safety and Licensing )

Board (Board) designated in the above-captioned proceeding admitted a single contention.

Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-15,44 NRC 8 (1996). On September 3,1996, Yankee Atomic Electric Company (YAEC) filed " Memorandum of Yankee )

Atomic Electric Company in Support of Motion for Summary Disposition," (YAEC Summary Disposition Motion) requesting summary disposition in its favor. The Staff filed a response in support of YAEC's motion on September 9,1996, "NRC Staff's Response in Support of Summary Disposition Motion," and Intervenors filed " Citizens Awareness Network's and New England Coalition on Nuclear Pollution's Opposition to YAEC's motion for Summary Disposition" (Intervenors' Response) on September 10, 1996. Thereafter, on September 13, 1996, in accordance with the Board's schedule, YAEC filed " Reply Memorandum of Yankee Atomic Electric Company (Motion for Summary Disposition)" (YAEC's Reply). Intervenors also filed a motion for leave to reply to the Staff's supporting response with an accompanying reply pleading and supporting affidavit on September 13, 1996. On September 17, 1996, Intervenors filed a motion seeking leave to file an additional reply to YAEC's Reply, which was accompanied by the Intervenors' " Reply to YAEC's Reply Memorandum" (Intervenors' I

Surreply).

On September 27,1996, the Board issued " Memorandum and Order (Granting Motion for Summary Disposition)," in which it granted YAEC's motion for summary disposition, granted the Intervenors' motion to reply to the Staff's supporting response, and denied the

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j ji Intervenors' motion to file the Intervenors' Surreply.8 Yankee Atomic Elec. Co. (Yankee i

Nuclear Power Station), LBP-96-18, 44 NRC , slip op. at 6-7 (September 27,1996). On October 4,1996, Interve.nors filed their Review Petition.

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1 DISCUSSION In their Review Petition, Intervenors argue that the Board erred in ignoring or discounting significant evidence and committed procedural error by denying the Intervenors' motion to file the Intervenors' Surreply. Review Petition at 8,10. Intervenors also argue that the novel and significant issues of law and policy raised in this proceeding merit Commission l review. Id. at 9. As demonstrated below, the Intervenors' assertions do not raise a substantial j question for review concerning the Board's decision in LBP-96-18. ,

] A. Standards for Commission Review Section 2.786 of the Commission's regulations requires that a petition for review must raise at least one of the following kinds of substantial questions to merit Commission j consideration:

(i) A finding of material fact is clearly erroneous or in conflict with a finding

, as to the same fact in a different proceeding; 4

4 (ii) A necessary legal conclusion is without governing precedent or is a 4

departure from or contrary to established law; i

8 The Board stayed the effectiveness of its decision until October 9,1996 in order to 1 provide the parties with an opportunity to seek from the Commission any appropriate stay j pending review. Yankee, LBP-96-18, slip op. At 37-38. On October 2,1996, the Commission

issued its Order in which it extended the Board's stay, subject to further order, pending its consideration of the instant stay motion and the Intervenors' petition for Commission review.

. The Commission further provided that any response to either the Stay Motion or petition for Commission review must be filed by October 10, 1996.

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(iii) A substantial and important question oflaw, policy or discretion has been raised; i'

(iv) The conduct of the proceeding involved a prejudicial procedural error; or (v) Any other consideration which the Commission may deem to be in the  !

public interest. l 10 C.F.R. I 2.786(b)(4); Babcock and Wilcox Company (Pennsylvania Nuclear Service Operations, Parks Township, Pennsylvania), CLI-95-4, 41 NRC 248, 250-251 (1995).  !

B. The Board's Granting of Summary Disnosition Was Not Contrary to Law.

Intervenors assert that the Board's rejection of their proffered evidence " unlawfully" I i

shifted the burden of proof from YAEC to Intervenors. Review Petition at 3, 8. A party opposing a motion for summary disposition may not rely on a simple denial of material facts l l

stated by the movant but must set forth specific facts showing that there is a genuine issue.

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10 C.F.R. I 2.749(b); see Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CL1-92-8, 35 NRC 145,154 (1992) citing Anderson v. Liberty Lobby, Inc. 477 U.S.

242,249-50 (1986) (to avoid summary disposition intervenors had to present contrary evidence l

that was so "significantly probative" as to create a material factual issue). Thus, instead of )

shifting the burden of proof from YAEC to Intervenors, as Intervenors claim, the Board properly applied the regulations in 10 C.F.R. I 2.749(b). As discussed below, the Board carefully and fairly considered the Intervenors' evidence material to its resolution of YAEC's summary disposition motion and found that Intervenors failed to show a genuine issue as to any material i

fact that would require an evidentiary hearing. See Yankee, LBP-96-18, slip op. at 23'-35.

Intervenors assert that the source of the Board's most " crucial errors" is the comparison of YAEC's and the Intervenors' dose estimates for YAEC's remaining "to go" decommissioning activities in that the Board ignored or discounted the Intervenors' evidence which created a l

4 o genuine dispute regarding YAEC's "to go" dismantling dose estimate of 91 person-rem. Review Petition at 3, 5. According to Intervenors, the Board erred by ignoring the Intervenors' l evidence that YAEC's claims of accuracy in dose projections was unfounded and by discounting

Intervenors' evidence that further dismantling activities, including decontamination of structures, would be dirty. Id. at 5-6. For support, Intervenors refer to the September 6, and 13,1996 affidavits of Marvin Resnikoff, Ph.D. attached to Intervenors' Response and Intervenors' Surreply respectively. Id.

The Board, however, made a careful review of the parties' filings, including the

" extensive" information provided by YAEC and Dr. Resnikoff's affidavits, and determined that  ;

only one issue raised by the Intervenors had any real significance, the concern about concrete

contamination. Yankee, LBP-96-18, slip op, at 29. The Board appropriately discounted

Dr. Resnikoff's one paragraph discussion of on the accuracy of long-term dose estimates as l compared to short-term estimates in light of the extensive discussion provided by YAEC on the same issue. Id. at 28-29. The Board also appropriately concluded that the Intervenors' " bald l

assertion" that decontamination will provide unknown levels of exposure was " simple conjecture," unsupported by the Intervenors' expert, and, thus, did not establish a genuine issue of material fact. Id. at 31.2 The Intervenors provide nothing in their Review Petition to support a claim of error in the Board's analysis of these issues.

Intervenors further claim that the Board erred when it determined that they had failed to

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j support their assertion that the decommissioning process of the Yankee Rowe facility would take

2 For the general proposition that, in the context of a summary judgment motion, i

unsupported expert opinion is insufficient, the Board cited United States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir.1981) and McGlinchy v. Shell Chemical Co.,

845 F.2d 802, 807 (9th Cir.1988). Yankee, LBP-96-18, slip op. at 31.

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another 2.5 years and that it could be estimated that the average dose during this time period would likely be 160 permn-rem per year. Review Petition at 6. The Board, after reviewing the information offered by YAEC in support of its estimate, correctly concluded that the Intervenors' assertion that decommissioning of Yankee Rowe would take 2.5 years was a " rough estimate" based on the assertion that the decommissioning activities can be expected to proceed I at the same pace as has been achieved since 1993 without any explanation of why, in light of YAEC's explanation, this would be true. Yankee, LBP-96-18, slip op. at 31-32. In their Review Petition, Intervenors merely repeat the same argument they made before the Board.

Review Petition at 6.

Finally, Intervenors claim that the Board erroneously found that the Intervenors' estimate of 160 person-rem / year for the "to go" doses was speculative and based on a " proportionality theory." Review Petition at 7. Intervenors assert that their evidence is not based on a proportionality theory.3 Id. at 7-8. As discussed above, the Board correctly determined that the evidence provided by Intervenors to support their arguments was speculative and unsupported and, therefore, did not establish a genuine isme of material fact. See Yankee, LBP-96-18, slip op. at 29-32. Further, the Board correctly concluded that the Intervenors' estimate of 400

- person-rem to go (based on 160 person-rem per year for 2.5 years, Resnikoff September 6,1996 Affidavit at 132) was a variant of the proportionality theory in that Intervenors assumed that l

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8 In their Review Petition, the Intervenors expressly reject the " proportionality theory" which they had proffered in " Citizens Awareness Network's and New England Coalition on Nuclear Pollutien's Response to Licensing Board Order of June 19,1996," at 9-11. See also Yankee Elec. Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 254-55 (1996).

This theory was found to be the only basis for their contention. See Yankee, LBP-96-15, 44 NRC at 36. This fact alone could have been a basis to grant summary disposition in YAEC's favor.

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a the same amount of dose incurred to date would be ireurred in the future without regard to a number of other factors affecting dose such as component location, size and complexity; radiation shielding; the quantity as well as the chemical and physical nature of the radionuclide; and the decommissioning operation phase. See Yankee, LBP-96-18, slip op. at 33. The Board 1

correctly concluded that such a theory had been " thoroughly discredited" by YAEC and the Staff. Id. at 32. Based on the above discussion, LBP-96-10 was not erroneous and Intervenors present nothing in their Review Petition to suggest otherwise.

1 Intervenors also argue that the Commission should take review in order to vidress what Intervenors characterize as the Board's " erroneous acceptance" of YAEC's estimate of dose i

associated with site cleanup without first requiring a full site characterization plan and site characterization report. Review Petition at 10. Intervenors rely on a staff draft branch technical position as authority for this assertion. Id. It is well settled that staff guidance such as branch technical positions and regulatory guides are guidance and cannot prescribe requirements. See Curators of the University ofMissouri, CLI-95-1,41 NRC 71,98 (1995) (Regulatory Guides, '

by their very nature, serve merely as guidance and cannot pref rbe requirements). Nothing in ,

the Commission's regulations requires a site characterization plan as part of a decommissioning plan. Even, the Intervenors' affiant acknowledges that "conformance with the Branch Technical Position on site characterization is not required of licensees." September 6,1996 affidavit of Dr. Resnikoff at 150. As noted in its reply to the Intervenors' Response, YAEC submitted site characterization data prepared in conformance with the guidance for implementing radiological surveys during the decommissioning of nuclear facilities contained in NUREG/CR-5849 as part ofits decommissioning plan (Section 3.1.2). YAEC's Reply at 9. Accordingly, the Board's I acceptance of YAEC's dose estimates was not erroneous.

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In sum, the Board carefully and fairly conside' red the Intervenors' evidence, and found that Intervenors failed to show a genuine issue as to any material fact that would require an evidentiary hearing. Yankee, LBP-96-18 slip op. at 25-32,35. Thus, the Board's conclusion that YAEC was entitled to a decision in its favor regarding the merits of the admitted contention was not contrary to law and does not raise a substantial question for Commission review pursuant to 10 C.F.R. I 2.786(b)(4)(ii).

C. Intervenors Have Not Raised Any Substantial Ouestion Regarding Procedural Error.

Intervenors also seek review of the Board's decision pursuant to 10 C.F.R.

I 2.786(b)(4)(iv),' arguing that the Board committed procedural error in denying their motion for leave to file the Intervenors' Surreply. Review Petition at 3-5, 8. Although the Board acted well within its discretion (See 10 C.F.R. 6 2.749, no reply to summary disposition permitted) not to grant the Intervenors' motion to file their Surreply, the Board correctly concluded that the motion and its attached filings contained no new relevant information or perspective and would not have changed its decision. Yankee, LBP-96-18, slip op. at 7 n.7. A review of those portions of its Surreply Intervenors reference in support of their Review Petition indicates that the Board's determination in this regard was correct. Accordingly, Intervenors fail to demonstrate procedural error in denying admission of the Intervenors' Surreply.

D. Intervenors Have Not Raised Any Substantial Ouestion of Law. Policy. or Discretion.

Intervenors further assert that the Commission should take review "because this case raises novel and significant issues of law and policy regarding the calculation and comparison of radiation doses under the DECON and SAFSTOR alternatives." Review Petition at 9. In support of this assertion, Intervenors claim that the Board either dismisses or leaves unaddressed significant dose contributors that are ignored by YAEC's decommissioning dose estimates, citing r

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l paragraphs in the September 6,1996 affidavit of Dr. Resnikoff. Id. The decision in LBP l'

18, clearly shows that the Board considered the Intervenors' concerns regarding the calculation s

and comparison of radiation doses under the DECON and SAFSTOR alternatives thoughtfully

and fairly. See Yankee, LBP-96-18, slip op. at 22-25. Intervenors may not agree with the 1

) Board's resolution of these matters, but Intervenors fail to demonstrate that the Board ignored these dose contributors, that they are " novel" to the decommissioning of the Yankee Nuclear Power Station or to decommissioning in general, or that the Board's resolution was contrary to the Commission's regulations or policy. Thus, Intervenors fail to demonstrate a significant question raising ' novel and significant issues of law and policy meriting Commission review pursuant to 10 C.F.R. 5 2.786(b)(4)(iii).

CONCLUSION As demonstrated above, Intervenors have not raised a substantial question for review.

Accordingly, the Intervenors' Review Petition should be denied as failing to satisfy the Commission's regulations in 10 C.F.R. f 2.786(b)(4).

Respectfully submitted, wa Mari L. Zobler l

Eugene Holler Counsel for NRC Staff Dated at Rockville, Maryland this 10th day of October,1996

DOCKETED

. UNITED STATES OF AMERICA USilRC NUCLEAR REGUL,ATORY COMMISSION BEFORE THE COMMISSION '96 0CT 10 P1 :58 0FFICE OF SECRETARY In the Matter of ) DOCKEina s iERV:CE CRAMCH

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YANKEE ATOMIC ELECTRIC COMPANY ) Docket No. 50-029-DCOM

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(Yankee Nuclear Power Station) )

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.C;);YIFICATE OF SERVICS I hereby certify that copies of "NRC STAFF'S RESPONSE OPPOSING INTERVENORS' PETITION FOR REVIEW OF LBP-96-18" in the above-captioned proceeding have been served on the following by hand delivery or, as indicated by an asterisk, by facsimile transmission with a conforming copy served by United States mail, first class, this 10th day of October,1996:

G. Paul Bollwerk III, Chairman Office of the Commission Appellate Atomic Safety and Licensing Board Adjudication Panel Mail Stop: Ol6-G-15 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry R. Kline Atomic Safety and Licensing Board Atomic Safety and Licensing Board Panel (1)

Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, D.C. 20555 ,

Franklin County Commission

• Ieslie B. Greer, Esquire

• Courthouse - 425 Main Street Assistant Attorney General Greenfield, MA 01301-3330 Office of the Attorney General Trial Division 200 Portland Street Boston, MA 02110

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! Office of the Secretary (16) Diane Curran, Esquire *

. Mail Stop: Ol6-G-15 Harmon, Curran, Gallagher & Spielberg

!' U.S. Nuclear Regulatory Commission 2001 S Street, N.W., Suite 430 Washington, D.C. 20555 Washington, DC 20009-1125

Attn: Docketing and Service Branch  !

i Jonathan M. Block, Esq.* Adjudicatory File

, Main Street Atomic Safety and Licensing Board j P.O. Box 566 U.S. Nuclear Regulatory Commission l

! Putney, VT 05346-0566 Washington, DC 20555 Dr. Thomas S. Elleman* Thomas G. Dignan, Esquire

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Administrative Judge R. K. Gad, III, Esquire Atomic Safety and Licensing Board Ropes & Gray Panel One International Place 704 Davidson Street Boston, MA 02110-2624

Raleigh, NC 27609 i

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3 W i Eugene }. Holler l Counsel for NRC Staff a

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