ML20135E308

Nuclear Regulatory Commission Issuances for September 1996. Pages79-106

ML20135E308
Person / Time
Issue date:	11/30/1996
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V44-N03, NUREG-750, NUREG-750-V44-N3, NUDOCS 9612110149
Download: ML20135E308 (34)

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,e. c i 9612110149 961130 PDR NUREG 0750 R PDR m

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Available from

! Superintendent of Documents U.S. Government Printing Office P.O. Box 37082 Washington, DC 20402-9328 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 National Technical Information Service Springfield, VA 22161 i

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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 (301-415-6844)

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NUREG-0750

Vol. 44, No. 3 Pages79-106

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NUCLEAR REGULATORY

, COMMISSION ISSUANCES i

i j September 1996 l

l This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Decisions on Petitions for Rulemaking (DPRM).

The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent legal significance.

U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-6844) l l

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4 COMMISSIONERS Shirley A. Jackson, Chairrnan Kenneth C. Rogers Greta J. Dicus Nils J. Diaz

Edward McGaffigan, Jr.

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B. Paul Cotter, Jr., Chlef Administrative Judge, Atomic Safety and Ucensing Board Panel l

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i CONTENTS Issuances of the Atomic Safety and Licensing Boardt i EMERICK S. MCDANIEL l (Denial of Application for Reactor Operator License)

Docket 55-21849-OT (ASLBP No. 96-716-01-OT)

(Re: License Amendment)(Transfer to Southern Nuclear)

INITIAL DECISION, LBP-96-17, September 3.19% . . . . . . . . . . . . 79 YANKEE ATOMIC ELECTRIC COMPANY j (Yankee Nuclear Power Station)

1. ' Docket 50-029-DCOM (ASLBP No. 96-718-01-R)

MEMORANDUM AND ORDER. LBP-96-18, Septerr.Ser 27,1996 . . . 86 a

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l Atomic Safety and Licensing Boards issuances i

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i ATOMIC SAFETY AND UCENSING BOARD PANEL i

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

• Deputy Chief Administrative Judge (Executive)

Frederick J. Shon,* Deputy Chief Administrative Judge (Technical)

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i Members i

Dr. George C. Anderson Dr. Richard F. Foster Dr. Kenneth A. McCollorn Charles Bechhoefer* Dr. David L. Hetrick Marshall E. Miller Peter B. Bloch* Ernest E. Hill Thomas S. Moore

• G. Paul Bollwerk ill* Dr. Frank F. Hooper Dr. Peter A. Morris

Dr. A. Dixon Callihan Ekzabeth B. Johnson Thomas D. Murphy

• l Dr. James H. Carpenter Dr. Charles N. Kelber* Dr. Richard R. Partzek Dr. Richard F. Cole

• Dr. Jerry R. Kline* Dr. Harry Rein Dr. Thomas E. Elleman Dr. Peter S. Lam

• Lester S. Rubenstein Dr. George A. Ferguson Dr. James C. Lamb 111 Dr. David R. Schink Dr. Harry Foreman Dr. Emmeth A. Luel;ke Dr. George F. Tdey l

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• Permanent panel members i

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Cite as 44 NRC 79 (1996) LBP-96-17 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judge:

Peter B. Bloch, Presiding Officer Dr. Peter Morris, Special Assistant in the Matter of Docket No. 55-21849-0T (ASLBP No. 96-716-01-OT) l (Re: License Amendment)

(Transfer to Southern Nuclear)

EMERICK S. MCDANIEL (Denial of Application for Reactor Operator License) September 3,1996 After reviewing in detail each of the claims made in this informal proceeding, conducted under 10 C.F.R. Part 2 Subpart L, the Presiding Officer sustained j the Str.ff of the Nuclear Regulatory Commission in its determination that the applicant did not pass the written portion of his examination to become a licensed operator of a nuclear power plant.

l INITIAL DECISION Emerick McDaniel, a reactor operator license applicant at Plant Vogtle, requested an informal hearing to substantiate his claim that he passed the written examination for a reactor operator.' The Nuclear Regulatory Commission (NRC) 8 Tlus is an informal heanng under 10 C F R. Part 2, Subpart L See 10 CF R. 5 21201(ax2). Pursuana to 10 C.F R.12.1231, the NRC Staff (Stafr) subnutted the Heanns File on July 3,1996.

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has jurisdiction of this appeal. The NRC helps to ensure the health and safety of the public by requiring reactor operators to successfully demonstrate tiieir knowledge of nuclear power plant operation before they are licensed. See Alfred J. Morabito (Senior Operator License for Beaver Valley Power Station, Unit 1),

LBP-88-10,27 NRC 417 (1988) and LBP-88-16,27 NRC 583 (1988); Roger W. Ellingwood (Senior Operator License for Catawba Nuclear Station), LBP 21,30 NRC 68 (1989). Part 55 of Title 10 of the Code of Federal Regulations contains the NRC regulations implementing section 107 of the Atomic Energy Act; these regulations require that applicants for reactor operator licenses pass j both a written examination and an operating test.

On the written examination, Mr. McDaniel was scored by the examiner as correctly answering 77 of 100 multiple choice questions, for a score of 77%,

which does not meet the 80% minimum score required to pass. See NUREG-1021 " Operator Licensing Examiner Standards," section ES-402, page 5 of 6.

In response to Mr. McDaniel's request, the Staff completed an informal review that sustained his failing grade. Hearing File item 21, attach. at 2-7.

Initially, Mr. McDaniel challenged the grading of Questions 7, 8, and 16 on his examination. Subsequently, he also challenged Question 19.2 The Staff concedes the validity of the challenge concerning Question 195 but contests the l other challenges. Mr. McDaniel must be sustained in two of three remaining challenges to pass the examination. Below, the challenges are considered one at a time, i

I L QUESTION 7 A. The Question and Answer

1. The Question

7. Given the following conditions:

e You are performing a whole body frisk using a portable fnsker.

. Background radiation is at the MAXIMUM allowed level for performing a whole body fri k.

Which ONE of the following is the count rate at which you are considered to be

" Contaminated"?

a. 100 counts per minute

b. 200 counts per minute

c. 300 counts per minute

d. 400 counts per minute 2

letter from F.nrnck S. McDaniel. July 30.1996 (McDaruel Presentation).

3 Wntten INesensauon of NRC staff. August 27.1996 (staff Presemation), at 6.

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2. The Answer He correct answer was (c),300 counts per minute. Mr. McDaniel's answer l was (b),200 counts per minute.

B. Legitimacy of Question Mr. McDaniel argues that the source for the answer to this material is the GET badge retraining hanc' book. He submitted for consideration, with his Presentation, the Georgia Power, "Vogtle Electric Generating Plant Training Lesson Plan," August 17,1993, and he argues that he was trained in the materials listed on page 4 of that Plan. He concludes that mastery of the GET badge retraining handbook was outside the scope of his licensing course and should have been outside the scope of the exam. Presentation at 1.

Whether the question is proper is governed by NRC regulations and published guidance, including 10 C.F.R. ! 55.41(b)(11)-(12) and NUREG/BR-0122 (which references a companion volume, a handbook on knowledge and abilities [K/A] 4 of operators of pressurized water reactors, NUREG-1122). He K/A handbook, at KA 194001 Kl.03, specifies knowledge that the test may cover, including

" knowledge of 10 C.F.R. 20 and related facility radiation control requirements."

Hence, I conclude that a test item on radiation control requirements is a pertamed subject. Absence of thu subject from the training course is not relevant to the appropriateness of the question.d C. Ambiguity Mr. McDaniel also argues that Question 7 is ambiguous as to whether it is referring to a " net count rate above background" or to a " gross count rate."

However, I do not see any ambiguity. First, the applicant was told he was to assume he was using a portable frisker. Second, the question emphasizes that background radiation is the MAXIMUM allowed level for performing a frisk.

At this point, if he had the required knowledge of radiation procedures, Mr.

McDaniel would know that the MAXIMUM count rate for background is 200 l (the maximum is the rate at which a person is required to go to another frisker I and to report the high level to health physics personnel). GET Handbook, I Hearing File item 22, attach. 2 at 68. He also should know, from the handbook, that when the metered count rate increases by 100 cpm above background, to 300 c.p.m. (the correct answer), he should report that event to health physics immediately.

'Since it is the NRC regulatory rnaienals that deternune the scope of the emanunacon. Mr. McDaruers further argurnent that Quescon #7 is "not procedurally dnven . " also is inelevant.

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Mr. McDaniel argues that the question does not specify whether the count rate to be reported in the answer should be 300 c.p.m. (gross rate) or 100 c.p.m (net rate or difference). I am not impressed by this possible ambiguity. Problems of that kind may be raised with the examiner. Staff Presentation, Exh. I at 5 of 6,19. If, indeed, the question were ambiguous, Mr. McDaniel's argument would avail him only if he gi:ve one of the two permissible answers. Since his answer is different from either of the answers that he considers permissible, it is wrong.

'Ihe use of a frisker is an important requirement for plant personnel, who must check themselves "at every frisking station posted." Hearing Record, #17 of attach. 2. Georgia Power provides annual training in these procedures and Mr. Emerick McDaniel was trained in January 1995. Staff Presentation, Exh. 2 (Affidavit of John Munro) at 2,15.

II. QUESTION 8 A. The Question and Answer

1. The Question

8. Given the following:

• An operating procedure is being perforned to restore a system to service followmg system mamtenance dunng an outage.

• An error is discovered in the sequence of steps in the procedure which. if performed, would result in starting a pump without the required seal water.

Which ONE of the following actions should be taken?

a. Obtain the Unit Stuft Supervisor's permission to perform the steps out of sequence.

b. Stop the performance of the procedure at the incorrect step. and request a procedure change.

c. Contmue with the procedure, performing the steps in the correct sequence, since the errors are obviously typographical.

d. Contmue with the procedure performing the steps in the correct sequence. and )

request a procedure change to correct the order of the steps after completion.

2. The Answer Mr. McDaniel's answer was (a), obtaining the Unit Shift Supervisor's per-mission to perform the steps out of sequence. The " correct" answer, according to the Staff, is (b). I i

B. Analysis Mr. McDaniel claims that his answer is a reasonable interpretation of the plant procedures. If his interpretation is reasonable, then there may be an ambiguity I 82

in the procedures. 'Ihis would be a problem for Georgia Power but not for the applicant. A reasonable interpretation of ambiguous plant operating procedures should be graded as " correct" on the operator's test.

I have read Mr. McDaniel's answer and have traced his thinking through the procedures. In one instance, I relied on a procedural definition not relied on l by Mr. McDaniel. That definition explained the meaning of the " intent" of a procedure.

Mr. McDaniel relies on Procedure 0054-C, Rev. 9, Vogtle Electric Generating i Plant Rules for Performing Procedures. On page 4 of 10,14.1.4, the following text appears:

FOLLOW STEPS FN SEQUENCE. UNLESS SPECIAL CIRCUMSTANCES WARRANT OR DEVIATIONS i RE AltDWED by the procedure. See step 4.2.7.

NOTE Operation's Urut OperatMg Procedures (UOPs) have many tasks which may be performed concurrently. The Unit Sh>0 Suoervisor may allow procedural steps to be performed out of sequence if it does not: result in omission of required work, violate the intent of the procedure, or create an unsafe plant condition.

Step 5.2.7, referenced in 4.1.4, provides the following definitions for application in this context: I The phrases " UNDERSTAND THE SAFETY AND REGULATORY IMPLICATIONS."

l AND 1"]UNLESS SPECIAL CIRCUMSTANCES WARRANT" are clarified as follows. In certain situations, it may be acceptable to use a procedure to perform an evolution not specifically described in the procedure, for example, using an equipment operating procedure to troubleshoot a piece of equipnrnt. Care must be taken to ensure that the actions will not produce negative consequences as a result of the evolution. The personnel must know what effect the actions will have, and ensure that the actions will not violate plant commitments l

On page 10 of 10 of Procedure 54-C, there is a reference to Procedure 52-C,

" Temporary Change to Procedures." The intent of the reference is not clear.

However, I have noticed that the term " intent of the procedure " used in the note on page 4 of 10, is not defined in Procedure 54-C but it is defined in Procedure 52-C at page 2 of 10,6 2.2 CIIANGE OF INTENT, which states:

The intent of a procedure is considered to be changed if steps are added or deleted which cause:

A change in the purpose or scope of the procedure.

A change to VEGP administrative procedures or a change reducing administrative control established in VEGP adnunistrauve procedures.

A change which deviates from the FSAR or Technical Specifications. .

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A change in acceptance entena less conservative than previously established.

I conclude that the intent of the procedure being implemented in Question 8 of the examination is to stan a pump with the required seal water. No  ;

steps are added or deleted, so rearranging the steps does not meet the premise for " CHANGE OF INTENT." fiarthermore, for Mr. EDaniel to ask for a l

supervisory waiver, pursuant to the NOTE, he would have to stop what he  ;

is doing and wait for supervisory action. Then there apparently would be no change in the administrative procedures for the plant. so none of the criteria are met for determining that there has been a CHANGE OF INTENT.

I agree with the Staff that the procedure should NOT work this way. A matter like this ought to be handled as a temporary change in procedures, with  ;

appropriate engineering review and coordination. However, I find that Mr.

McDaniel is appropriately relying on plant procedures. The remedy here is to j change the procedures. Under current procedures, Mr. McDaniel's answer is I permissible and therefore right. i I

i III. QUESTION 16 i A. Question and Answer

1. Question

16. Which ONE of the following staternents is correct regarding the DESIGN of the RCP shaft seals (sic] ability to withstand full RCS pressure?

a. Only the #1 seal is capable of withstanding full RCS pressure.

b. Seals #1 and #2 are independently capable of withstanding full pressure but only for 30 nunutes.

c. Seals #1 and #2 are independently capable of withstanding full pressure indefinitely.

d. Seal #1 is capable of withstanding full pressure indefinitely but seal #2 is only capable of withstanding full pressure for only 30 rninutes.

2. Answer The correct answer provided by the NRC is (d). Mr. McDaniel answered (c).

B. Analysis and Conclusion Mr. McDaniel argues that the 30-minute limit before seal #2 would fail is not supported either in the Reactor Coolant Pump Instruction Manual,2X6AB09 .;

i19 or in Plant Procedure 13003 RCP. However, Mr. McDaniel was taught the l

1. 2 seal is " good for 30 minutes." Lesson Outline (LI-LP-16401), Attach. 2 84 l i

l

to Record #18. Furthermore, the Reactor Coolant Pump Instruction Manual, cited by Mr. McDaniel (Presentation at 2), states that when the No. I seal is inoperative,"The pump may be operated for a period not to exceed an additional 30 minutes." While Mr. McDaniel is technically correct that this " allows a total of 35 minutes," this does not excuse Mr. McDaniel's answer that, " Seals #1 and

1. 2 are independently capable of withstanding full pressure indefinitely." That answer is wrong and it could result in inappropriate operator action.

IV. OVERALL CONCLUSION d

The only matter before me is whether Mr. McDaniel passed his examination.

I conclude that he did not. I have ruled that his answers to questions 7 and 16 are wrong. While I was prepared to rule that his answer to Question #8 was correct, that discussion is not essential to my decision and should be treated as a nonbinding opinion.

l V. ORDER For all the foregoing reasons and upon consideration of the entire record in this mtier, it is, this 3rd day of September 1996, ORDERED that:

1. Mr. Emerick S. McDaniel's appeal of the denial of his application for a reactor operator's license is denied.

2. Within 15 days, Mr. McDaniel may appeal this Order pursuant to 10 C.F.R. 66 2.786 and 2.763. Judicial review may not be sought unless a timely petition for review is filed. 'Ihe petition should comply with all the provisions of the cited secticas, including those related to length and content and that describe the considerations based on which the Commission may grant the petition.

1 Peter B. Bloch, Presiding Officer ADMINISTRATIVE JUDGE Rockville, Maryland 85

/

_. _ - _ .- __m .. .__. . . . _ . - _ _ . . . _ . _ _ _ ._ m _ __ .

1 l Cite as 44 NRC 86 (1996) LBP-9618 >

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4

ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

G. Paul Bollwerk, Ill, Chairman Dr. Jerry R. Kline Dr. Thomas S. Ellemen in the Matter of Docket No. 50-029-DCOM (ASLBP No. 96-718-01 R)

! YANKEE ATOMIC ELECTRIC 4

COMPANY (Yankee Nuclear Power Station) September 27,1996 1

1 j In this proceeding concerning citizen group challenges to the decommission-

ing plan for the Yankee Nuclear Power Station, the Licensing Board grants Licensee Yankee Atomic Electric Company's (YAEC) motion for summany dis-position. The Board concludes the Intervenors failed to establish any genuine disputed material factual issues regarding YAEC's showLg that the differential between the total (ccupational doses a sociated with facility decommissioning under its chosen DECON decommissoning option and the alternative SAF-

STOR nption would not fall outside of the generic DECON/SAFSTOR dii?cr-ential " envelope" previously recognized by the Commission as significant in

assessing whether a licensce's choice of the DECON decommissi n ng option

! would transgress either the principle that radiation doses should be kpt "as low as reasonably achievable" (ALARA) or the dictates of the National Environ-mental Policy Act of 1969 (NEPA).

]

1 86

RULES OF PRACTICE:

SUMMARY

DISPOSITION (BURDEN OF I PROOF)

The party filing a summary disposition motion has the burden of demonstral-ing the absence of any genuine issue of material fact. See Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-22,38 NRC 98, 102 (1993). In this regard,10 C.F.R. 5 2.749(a) requires that the moving party include a statement of material facts about which there is no genuine issue to be heard. In contrast, the opposing party must append to its response a statement of material facts about which there exists a genuine issue to be heard. If the responding party does not adequately controvert material facts set forth in the motion, the party faces the possibility that those facts may be deemed admitted.

If, however, the eviJence before the Board does not establish the absence of a genuine issue of material fact, then the motion must be denied even if there is no opposing evidence. See Clercland Electric Illuminating Co. (Perry Nuclear Power Plant, Units I and 2), ALAB-443,6 NRC 741,753-54 (1977). Neverthe-less, a party opposing a motion cannot rely on a simple denial of the movant's material facts, but must set forth specific facts showing there . a genuine issue af material fact. See 10 C.F.R.12.749(b).

RULES OF PRACTICE:

SUMMARY

DISPOSITION (MATERIALITY OF FACTUAL DISPUTE)

A presiding officer need consider only those purported factual disputes that are " material" to the resolution of the issues raised in a summary disposition l motion. See Anderson v. Liberty lobby, Inc., 477 U.S. 242, 248 (1986)

(factual disputes that are " irrelevant or unnecessary" will not preclude summary judgment).

]

RULES OF PRACTICE:

SUMMARY

DISPOSITION (GENUINE DISPUTED MATERIAL ISSUE OF FACT)

In opposing summary dispret n by seeking to establish the existence of a genuine dispute regarf g i t acrial factual issue, a party must present sufficiently probative evibce. Le Anderson,477 U.S. at 249 (evidence that is "merely colorable" or is "not significantly probative" will not preclude summary judgment).

I l

RULES OF PRACTICE:

SUMMARY

DISPOSITION (DISCOVERY; GENUINE DISPUTED MATERIAL ISSUE OF FACT)

In opposing summary disposition by seeking to establish the existence of a genuine dispute regarding a material factual issue, a pany that had discovery 87 I

I I

1

i 4

following the filing of the dispositive motion generally cannot interpose claims based on a lack of information as the valid basis for a genuine material factual dispute.

RULES OF PRACTICE:

SUMMARY

DISPOSITION (EXPERT  !

OPINION; GENUINE DISPUTED MATERIAL ISSUE OF FACT)

In opposing summary disposition by seeking to establish the existence of a genuine dispute regarding a material factual issue, a party's bald assertion,  ;

even when supported by an expert, will not establish a genuine material factual '

I dispute. See United States v. %rious Slot Machines on Guam, 658 F.2d 697,700 i l (9th Cir.1981)(in the context of a summary judgment motion, an expert must j back up his opinion with specific facts); see also McGlinchy v. ShcIl Chemical

? Co., 845 F.2d 802,807 (9th Cir.1988) (expert's study based on " unsupported 1 assumptioe and unsound extrapolation" cannot be used to support summary j judgmet 'on),

t i

TECHNICAL ISSUE DISCUSSED:

j Proportionality between occupational exposure rate for completed decommis-

' l sioning activities and exposure rate for additional radioactive inventory. l MEMORANDUM AND ORDER

] (Granting Motion for Summary Disposition) j

! This proceeding was convened to consider the challenges of Intervenors j Citizens Awareness Network, Inc. (CAN), and the New England Coalition j on Nuclear Pollution (NECNP) to various aspects of the decommissioning plan put fosth by Licensee Yankee Atomic Electric Company (YAEC) for its I Yankee Nuclear Power Station (Yankee Rowe). In LBP-96-15, 44 MRC 8 j (19%), we admitted a single Intervenor contention contesting the et.Macy of 4

YAEC's decision to use a modified DECON decommissioning option under  ;

4 which decommissioning is to be completed v.:latively promptly after facility  !

l operation is completed) rather than the SAFSTOR option (which provider, for decommissioning only after the facility has been maintained in a " stored" condition for an extended period following operation). According to the Intervenors, the Licensee's choice runs afoul of both the regulatory principle that occupational doses should be maintained "as low as reasonably achievable" (ALARA) and the dictates of the National Environmental Policy Act of 1969 (NEPA).

88

I 1

Now pending before the Board is a YAEC motion for summary disposition l relative to the Intervenors' contention. In its motion, YAEC requests the Board find, as a matter of law, its modified DECON decommissioning alternative does not entail occupational radiation doses that fall outside the previously an-alyzed generic parameters within which the Commission has found a licensee's choice of either the DECON or SAFSTOR option will be deemed acceptable for ALARA or NEPA purposes. The NRC Staff supports that motion; the In- i tervenors vigorously oppose it. I For the reasons set forth below, we conclude YAEC has established there are i

no genuine disputed material facts e id it is entitled, as a matter of law, to a j decision in its favor regarding the CAN/NECNP contention.

l l

L BACKGROUND The procedural story of this proceeding up to this juncture has been described elsewhere. See CLI 96-7,43 NRC 235,241-46 (1996); CLI-96-1,43 NRC 1, 5 (1996); CLI-95-14, 42 NRC 130,131-33 (1995); LDP-96-15, 44 NRC at 12-21; LBP-96-2,43 NRC 61,65-68 (1996). Now before the Board is a lone Intervenor contention regarding the YAEC plan for decommissioning the Yankee Rowe facility that we admitted in a July 31,1996 memorandum and order.' It prows:

Ibr Yankee Rowe facility decommissioning. YAEC and the NRC Staff have incorrectly assumed that the dose differenual between the DECON and SAFSTOR attematives is less than the 900 person-rem differenual deemed acceptable in the 1988 [ final generic l environnental impact statenrnt (GEIS) supponing the agency's 1988 decommissioning rule] I in fact, the dose differential would be significantly higher than 900 person-rem Therefore, the ALARA and NEPA cost-benefit ba'ances must be re-evaluated, taking into account the significant radiological dose savings afforded by the SAFSTOR alternauve.

LBP-96-15, 44 NRC at 22. In our July ruling, we concluded that e ' pro-portionality" argument proffered by the Intervenors provided a sufficient basis for accepting this contention. Based on the information then presented by the Intervenors, we found that because the projected dose figures for certain near-term decommissioning activities entailed doser. : hat could not be considered de

'Insually. che Board disnussed the Intervenors' heanns penuon for want of any laugable contenuona. Src LDP.

96 2. 43 NRC at 9192. Although the Comnussion subsequently affimed this ruling on appeal. at sent back for considerauon under the "laie-hhng" standarda of 10 C F R. I 2 714(ax H mformann bled by the Intervenors aher our ruhng disnussing the heanng pennon. See CLl%7. 43 NRC ai 277. In I_BP-9615,44 NRC at 21-37. we Jeternuned the latervenors'secalled "new done argument" consututed a new contenuon. the terms of which are set forth in the test below ; found the contentwn met the standards for late-fihng. and concluded that contennon was supported by an adequate basis, i e., the "proportionahry" theory discussed below None of Le parues hied an appeal imm or sought reconsideratu n of these deternunauons 89

i i

l 1

l l

i minimis when compared with YAEC figures on total doses for all completed l activities and because the remaining facility radioactivity level was not insignif- '

i icant, there was a reasonable possibility the Intervenors could establish a total DECON dose for completed and future activities that fell outside the 900 person-rem differential reflected in the 1988 GEIS.2 This, the Board decided, presented the requisite material factual dispute warranting further inquiry so as to permit admission of the Intervenors' contention. See id. at 36.

In accepting this contention, the Board also noted that resolving its merits involved two distinct litigation stages: an " envelope" phase and a " relief" phase. As we described it:

The " envelope" phase involves a determmation of whether the YAEC DECON decommis-sioning process will result in occupational doses that exceed the 900 person-rem GEIS

" envelope" such that additional ALARA and/or NEPA analysis is necessary. If we should decide that, in fact, the GEIS parameters have been enceeded to a degree that warrants further ALARA and/or NEPA analysis, only then do we need to consider the question of " relief" regardmg the appropriate manner for providing that analysis and htigating its sufficiency.

Id. at 37. Because the Board then had pending before it a YAEC " conditional" request for summary disposition, with supporting affidavit, that generally ad-dressed the " envelope" phase of Intervenors' challenge to the Licensee's DE-CON option choice 3 in accord with earlier Commission guidance the Board established an expedited litigation schedule for considering that motion and, if necessary, h . ang an evidentiary hearing. See id. at 37-45.

Initially, Intervenors CAN and NECNP had a chance to obtain both infor-mal and formal discovery from YAEC and the Staff on the "en. elope" phase of their challenge. Discovery closed on August 30,1996, without the parties bringing any discovery disputes to the Board for resolution. Thereafter, the Li-censee had an opportunity to supplement its summary disposition request, which it did in a September 3,1996 filing that included a statement of uncontested 2

Regar&ng the 900 person-rem efferennal that the Comnnsson previously has ind;cate1 *s sigm6 cant relauve to the vah&ry of a hcensee's chmee between the DECON and SAFSToR opuons. see CLl%7. 43 NRC as U1-53.

in LBP415,44 NRC at 13 a 2, we noted Tlus 900 pean-rem 6 sues reflects the apprommate &fference between the GEIS esumated total reference pressunzed waim. .cactor Wwk) DECoN decomnussiomng occupahonal dose of 1.215 person-rem and a the GEIS esumated SArSTOR occupanonal dose of 333 person-rem that would be accrued usms a 34 year

{

storage pened at the reference PWR. See of6ce of Nuclear Regulatory Research. USNRC, NURibG-0586, i Tinal Environmental Impact Statement on Decomnussiomng of Nuclear facihues" (Aug 1988) at 4-8 I (Table 4 3-2). The GEIS was prepared in support of the 1988 rule that is the basis of perunent NRC j decomnnsiomng requirements Sec 53 Fed Reg 24.018 (1988).

3 See Con &uonal Monon for Summary tasposmcii ("New Dose Argument")(July 10. 1996). Memorandum of

[YAEC) in opposmon to tme Filed "New Dose informanon" and in Support of Con &uonal Monon for Summary Disposmon (July 10.1996) [ hereinafter YAEC Summary Disposmon Memorandum). Af6 dawn of Russell A.

Mellor (July 10,1996)[her mafter Mellor Summary Disposmon Af6 davit}.

1 l

i facts and supporting affidavits.' Under the Board's schedule, the Staff had the chance to seek summary disposition as well; instead, the Staff chose to file a

response in support of YAEC's motion, with supporting affidavits? At nearly the

, same time, acting under the Board's schedule, the Intervenors filed a response

in opposition to YAEC's motion, with a statement of disputed material facts l and a supporting affidavit.' The Licensee then filed a reply to the Intervenors' I

opposition, with a supporting affidavit, while the Intervenors sought leave to file a reply to the Staff's supporting response, with an accompanying reply pleading and supporting affidavit?

1 4 'See Memorandum of[YAEC)in Support of Mouon for Summary Disponsoon (Sept 3,1996)[ hereinafter YAEC Supplenental Memoranduml; Statenrnt of Uncontested Facts (Sept 3,1996) [ hereinafter YAEC Uncontested Facts) Af6 davit of Dade W. Moellcr Ph D (Aug 27.1996)[ hereinafter Moeller Af6 davit)Supplenuntal Af6 davit of Rusell A. Mellor (Sept 3,1996)[heremafter McIlar Supplenemal Af6 davit]

8

, 5ee NRC Staff's Response in Support of [YAEC's] Mouon for Dmmary Disposinon (Sept. 9,1996)[ hereinafter Staff Response). Af6davir of Charles A. Wilha in Support of the NRC Staff's Response in Support of [YAEC's)

Motion fur Summary Disposinon (Sept 9,1996)[heremafter Wilha Af6 davit]; Af6 davit of Morton B. Isarule in Support of die NRC Staffs Response in Support of [YAEC's! Monon for Sumnary Disposmon (Sept. 9 1996) a

[ hereinafter Fairule Af6davn)

'See [CAN/NECNP) opposition to YALC's Monon for Summary Dispossuon (Sept. 10,1996) [heremafter

,' CAN/NECNP opposauon). [CAN/NECNP] Statement of Matenal Facts in Dispute (Sept 10,1996) [hercanafter CAN/NECNP Disputed Facts]; Af6 davit of Marvin Resmkuff, Ph D. (Sept. 6,1996) [ hereinafter Resmkoff sinon Af6 davit].

See Reply Meurandum of [YAEC)(Motion for Summary Disposition)(Sept 13.1996) [ hereinafter YAEC i Reply), Supplenental Affidavit of Rusell A. Melks (Sept 13.1996) [heremafter Mellor Reply Af6 davit];

[CAN/NECNP) Condiuonal Agreenent to Unauthorued Fihng of NRC Staff's Response m Suppmt of YAEC's Mouan for Summary Disponsoon, and Mo% for isave to Reply (Sept. 13.1996);[CAN/NECNP] Reply to NRC Staff's Response m Support of YAEC's Mouon for Summary Disponsoon (Sept. 13.1996t [CAN/NECNP] Reply Statement of Matenal Facts in Dispute (Sept. 13.1996)[heremafter CAN/NECNP Reply Dispused bets); Reply Afhdant of Marvin Resmkoff, Ph D. (Sept 12.1996)[herematter Resmkoff Reply Affidavit]

As part of their September 13, 1996 hhngs, the Intervenors assened the Staff's September 9 response was mappropnaie under the Board's July 31,1996 scheduhng &recove, wiuch estabhshed a deadhne for the Staff to Ale a aummary disposinon monon. In provisng for a Staff summary esposiuon motion, it was not the Board's intent to abrogate the provisions of 10 C I R. 5 2 749(a), which in&cate that any party to a procee&ng can 6te an

! answer to a summary &sposmon motion "supponing or opposing the nwuon." As such, the Staff's plea &ng was I appropnate.

Regar&ng the Imervenors' request to nie a reply to the Staff's response, which the Staff opposes. see NRC Staff's oppossuon to Imervenors' September 13.1996 Monon for trave to Reply (Sept 17,1996), the Intervenws' monon is not stnctly m comphance wuh our requirenrnt that a party seek Board approval pnar to 6hng a n viy (other than for a YAEC or Staff reply to a summary esposition monon responset See EBP 9615,44 NRC at 41,43. Nonetheless, becausi the Intervenors' responsive fahng is consistent with our general concern, as reflected in the summary esposinon schedule, that they have an opportumry to respond to any msual staff 6hng regardmg sununary &sposinon, see ad at 43. we grant the CAN/NECNP monon l We cannot say the same for a Septerwher 17.1996 intervenor monon seekmg leave to 61e what is in essence a surreply to the Ucensce's rep'y to their opposinon to YAEC's espossove rnmon. See [CAN/NECNP) Monon for

t. eave to Reply to YAEC s Reply Memorandum (Summary Disposmon)(Sept 17,1996) As YAEC pomis out in its opposinon to that mouon, the opportumty affurded the Ucensee and the Staff to ble a reply "is not a general absoluuon for all rephes in the sununary disposinon phase of this case " Answer of [YAEC) to lCAN/NECNP)

Monon for trave to Reply tu YAEC's Reply Memorandum (Summary Dispossuon)(Sgt. 18,1996) at 2. The Imervenors are represented by counsel who are well able to understand and follow a clear &recuve such as our requirement for preapproval of rephes. Under the circumstances, there bemg no showing of good cause for their failur,, to seek preapproval, we deny Intervenors' monon for leave to file their ad&uonal reply t Contmurdi l

91

Subsequently, after reviewing the parties' pleadings, we issued a memoran-dum advising them we did not intend to hold an oral argument prior to deciding the Licensee's motion.' See Board Memorandum (Summary Disposition Oral Argument and Location for Evidentiary Hearing)(Sept. 16,1996) at I (unpub-lished).

II. ANALYSIS A. Standards Governing Summary Disposition Section 2.749 of title 10 of the Cr>de of Federal Regulations, the Commis- J sion's administrative analog to Rule 56 of the Itderal Rules of Civil Procedure, authorizes a party to request, and a presiding officer to render, a decision in the moving party's favor on any part of the matters in controversy in the proceeding.

According to section 2.749(d):

The presiding officer shall render the decision sought if the filings in the proceeding.

depositions, answers to interrogatones, and admissions on file. together with etw staternent of the parues and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.

See also Adianced Afedical S .. ems, Inc. (One Factory Row, Geneva, Ohio 44NI), CLI-93-22,38 NRC 9R 102 (1993).

The party filing the summary disposition motion has the burden of demon-strating the absence of any genuine issue of material fact. See id. In this regard, section 2.749(a) requires that the moving party include a statement of material facts about which there is no genuine issue to be heard. In contrast, the op-posing party must append to its response a statement of material facts about which there exists a genuine issue to be heard. If the responding party does not adequately controvert material facts set forth in the motion, the party faces the possibility that those facts may be deemed admitted. See 10 C.F.R. 6 2.749(a).

If, however, the evidence before the Board does not establish the absence of a genuine issue of material fact, then th: motion must be denied ev n if there is no opposing evid:nce. See Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-k3,6 NRC 741,753-54 (1977). Neverthe-less, a party opposing a motion cannot rely on a simple denial of the movant's In &nng so, however, we noie that even if we were to accept the Intervenors' Inhng, nottung in at would change the resuh we reach here. In fact as it rrught be pertinent to our decision here, st appem's to reflect no rmee than a rephrasing of earher argunrnts without the ad&uon of reinant new informanon or perspective a The Comrnonweakh of Massachusetts also has parucipated m the proceeding as an anierested governmental enury pur,uant to 10 C F R. 6 2.71Nc). The Commonweahh ed not make any substanuve subnussmns in connecuan with the Licensee's summary esposanon monon 92 1

material facts, but must set forth specific facts showing there is a genuine issue of material fact. Ses 10 C.F.R. 5 2.749(b).

II. The Parties' Arguments As the discussion above suggests, the enrdinal focus of our inquiry here is whether there are material factual issues in genuine dispute relative to the size of the modified DECON option dose as it is used in computing the Yan-kee Rowe DECON/SAFSTOR differential for comparison with the GEIS DE-CON /SAFSTOR differential " envelope." In support of its dispositive motion, f YAEC assens that the eppropriate inquiry concerns two matters: (1) the rel-evant occupational exposures incurred to date for decommissioning; and (2) the " correct" estimate of the occupational exposure that will be incurred com-pleting Yankee Rowe decommissioning. Regarding the "to date" occupational exposures, YAEC declares that the figure through middune 1996 is 440 person-rem. For the "to go" occupational dose estimate, YAEC maintains the appro-priate figure is a total exposure of 140 person-rem, the correctness ei which can be accepted with a high degree of confidence based on YAEC's experi-ence with providing estimates See YAEC Summary Disposition Memorandum at 19; YAEC Supplemental Memorandum at 3-7; see also YAEC Uncontested

Facts at 11-12. As support for these assertions, YAEC provides affidavits from Russell A. Mellor, the decommissioning manager for the Yankee Rowe facility, i that describe the current status of decommissioning, the history of occupational l exposure estimates for Yankee Rowe decommissioning, the methodology used in accumulating actual exposures and estimating future exposures, and reasons why YAEC's estimates are reasonably accurate and conservative. See Mellor i Summary Disposition Affidavit at 2-6; Mellor Supplemental Affidavit at 2-15;  ;

see also YAEC Uncontested Facts at 2-8.  !

In addition, YAEC asserts that the " proportionality" theory that was the basis i for the Intervenors' admitted contention is neither a valid nor reliable way to estimate future exposures because it fails to account for a variety of factors

affecting exposure rates, including the nature of the task to be performed, the number of people engaged in the work and their experience level, and the radiation shielding employed. As support for this pro; osition, YAEC relies upon both the discussion in one of Mr. Mellor's affidavits and a separate affidavit from Dr. Dade W. Moeller. See Mellor Supplemental Affidavit at 15-18; Moeller Affidavit at 3-10; ser also YAEC Uncontested Facts at 9. In l

particular, Dr. Moeller gives a detailed analysis of the specific factors that i affect occupational radiation doses and provides examples of Yankee Rowe .

I decommissioning activities that run contrary to the Intervenors' " proportionality" theory, including steam generator and irradiated hardware liner removal.

1 93 t

Based on this information, about which YAEC asserts there is no genuine issue to be heard, YAEC declares that even if the SAFSTOR exposure for Yan-kee Rowe is assumed to be zero (rather than the GEIS SAFSTOR estimated exposure of 333 person-rem) the differential between total Yankee Rowe DE-CON exposures of 580 person-rem and SAFSTOR would fall well within the GEIS 900 person-rem differential that is the " envelope" for this proceeding. As a consequence, YAEC asserts that it is entitled to summary disposition in its favor relative to the CAN/NECNP contention. See YAEC Supplemental Mem-orandum at 11 12.

In its September 9 response supporting YAEC's dispositive motion, the Staff declares its essential agreement with the main points made by YAEC.

The Staff states that, in comparison with the occupational exposure figure of 457 person-rem for all facility activities set forth in NRC inspection reports through April 1996, the YAEC "to date" figure of 440 person-rem occupational exposure for decommissioning activities is reasonable. The Staff also asserts that the methodology described by YAEC for reaching its "to go" figure of 140 person-rem is acceptable because it comports with industry practice; previously projected doses for now-completed dismantlement activities were consistent with doses actually accrued; remaining work is similar to work already completed; and License personnel can be expected to avoid unexpected doses because they know the facility. See Staff Response at 5-9. In support of these assertions, the Staff provides the affidavits of NRC senior health physicist Charles A. Willis and Morton B. Fairtile, the senior project manager in charge of Staff review of Yankee Rowe decommissioning. See Willis Affidavit at 2-3; Fairtile Affidavit at 2-4.

Moreover, on the issue of the Intervenors' " proportionality" theory, agreeing with the criticisms leveled by YAEC affiant Moeller, the Staff (relying on its affiant Willis) likewise finds this concept invalid. Although recognizing that some direct relationship between the level of radioactivity (curies) and the absorbed dose (person-rem) could exist, the Staff rejects Intervenors' theory because ultimately it fails to account for the various job-specific factors that will affect occupational dose, including worker time in the radiation field, distance from the source, and shielding. See Staff Response at 9-11; Willis Affidavit at 3-4. The Staff concludes that because the Licensee's factual showing clearly establishes its DECON option falls within the 900 person-rem GEIS " envelope,"

the Licensee is entitled to a decision in its favor on the Intervenors' contention.

In their September 10, 1996 response to YAEC's dispositive motion, In-tervenors CAN and NECNP oppose the Licensee's summary disposition re-quest, asserting that they estimate the expected DECON dose should be at least 1184 person-rem, making the differential between YAEC's modified DECON '

option and the SAFSTOR option at least 1000 person-rem, a figure well out-side the GEIS 900 person-rem " envelope." See CAN/NECNP Opposition at 2; l 94 l

l

CAN/NECNP Disputed Facts at 1-2. In reaching this conclusion, they describe a series of flaws in the YAEC analysis by which the Licensee has incorrectly measured, underestimated, or failed to support its dose estimates. These items of Intervenor criticism, which are drawn from a supporting affidavit of Dr Marvin Resnikoff, can be summarized as follows:

1. In assessing thermolutruniscent dosmrter (TL.D) readings, YAEC failed to make appropnate corrections for background radiation in determming w hich workers incurred "no measurahle exposures." thereby underestimating doses by at least 25 pe son-rem.

2. YAEC ignores a full year of decommissioning work that took place in 1992, which included unloading irradiated fuel and control rods from the reactor, cutting and shipping the control rods to the Barnwell. South Carolina radioactive waste disposal site, and conducting a detailed reactor radiation survey, thereby underrepcmng doses by 94 person-rem.

3. YAEC did not rount exposures incurred durmg " operation and maintenance"(O&M) activines as decommissioning doses, as was done under the " continuing care" category in the GEIS for the SAFSTOR option, thereby underreporting occupational exposures l

by some 34 person-rem.

l

4. YAEC has not provided enough information regarding the "to go" activities described )

in its pleadmgs - in particular those in the categones of "Etc." and " Miscellaneous"

- to determine whether the dose it esunutes for those activities is appropnate. l S. YAEC's r. hance on a 1993 dose estimate as a harbinger of the accuracy and i conservatism of its recent "to go" estimate is unsupported because (a) most of the I activities invohed are incomplete or not started or were already well under way when the estimate was made; (b) YAEC has not supported its statement that the ,

level of uncertainty is re" .ed by expenence, given its failure outhned in paragraph 4 above to provide sufficient information; (c) YAEC's reliance on cobalt-60 decay l as a measure of its conservatism is nusplaced m that it fails to account for other radioacuve contanunants with longer half-lives; and (d) the accuracy of its predictions for upcoming projects is suspect given the long-term or otherwise unanalyzed nature of those projects, such as concrete decontamination.

6. Rather than YAEC's figure of 140 person-rem "to go," it is reasonable to assume a "to go" figure of 400 person-rem over the next 21/2 years needed to complete "to go" decommissioning, given (a) decommissioning occupational exposures over the past several years have been on the order of 160 person-rem per year, and (b) the nature of the remaining projects, such as concrete decontammation.

7. YAEC has not adequately considered inhalation doses in that (a) all radionuchdes were not included in its calculations; (b) radionuclide decay and biological half-lives were not calculated correctly; and (c) " hot particle" dose inhalation was not accounted for, resultmg in a dose underestimanon of at least 7 person-rem.

8. YAEC has enurely failed to account for doses incurred in the offsite processmg of contaminated waste, which can reasonably be estimated to add 41 person-rem to occupational doses.

l 95

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9. YAEC erred by using the outdated WASH 1238 model to arrive at an origmal estimated transportation dose of 41 person-rem (34 person-rem to truckers / rail workers,7 person-rem to the public) rather than using the modern RADTRAN rmdel that would result in an estimated dose of 103 person-rem (9 person-ruen to truckers / rail workers and 94 person-rem to the pubhe).

10. YAEC has underestimated total public exposures due to airborne effluent enussions.

J although by how much is unclear because YAEC failed to provide sufficient information for calculations.

11. YAEC has not made any decommissioning dose estimate for facihty site soil cleanup, which would entail unspecified additional exposures.

12. The SAFSTOR (krse estiinate should be based on a 186 person-rem figure given in a 1979 decommissioning study that included Yankee Rowe (NtJREG-0130, Addendum (Aug,1979)) rather than the 333 person-rem that was set forth in the 1988 GEIS, which has the effect of increasing the total DECON/SAFSTOR dose differential for Yankee Rowe by 147 person-rem.

See CAN/NECNP Opposition at 3-13; CAN/NECNP Disputed Facts at 2-11; Resnikoff Opposition Affidavit at 5-17. l Thereafter, in their September 17, 1996 reply to the Staff's response in support of that motion, the Intervenors take issue with the Staff's assertion that YAEC's estimation methods comport with industry standards, asserting that this does not guarantee they are r-"able. Among other things, the Intervenors again declare, as they did in items 4 and 7 above, that the information provided by YAEC is not sufficient to evaluate me reliability of its dose projections and that the projections involved were based on actual measurements or near-term projects. They also dispute the Staff's assertions regarding the routine nature of future work and its similarity to already completed tasks, asserting that the concrete decontamination and demolition work, which constitutes a significant portion of the remaining tasks, as well as work involving soil / groundwater contamination and reactor vessel removal are neither like completed work nor routine. See CAN/NECNP Reply Disputed Facts at 1-7; Resnikoff Reply Affidavit at 1-3.

In its reply to the Intervenors' response, YAEC asserts initially that because the Intervenors' 1184 person-rem estimate is below the GEIS DECON estimate of 1215, the Board need inquire no further. 'Ihe Licensee also notes that if each j

of the exposures for which the Intervenors specify a dose is accepted - other l than items 3,7,8, and 9 that YAEC asserts are not applicable because they are i not within the scope of the GEIS - along with their value of 186 person-rem j for SAFSTOR, the resulting differential value is still well within the 900 person-rem " envelope." YAEC further declares that, given their failure to mention it, the Intervenors clearly have abandoned their " proportionality" theory to focus j on the specific components that make up the "to date" and "to go" DECON l doses. See YAEC Reply at 1-3.

96

Looking then to the Intervenors' specific challenges to the Licensee's "to date" and "to go" doses, YAEC first asserts that Dr. Resnikoff's affidavit analyzing those matters should be stricken because his credentials make it clear he is not qualified to act as an expen witness on dosimetry, health physics, and construction engineering, the subjects that are at issue relative to those doses.

See id. at 3-4, Further, regarding the particular items of intervenor concern described above, YAEC declares:

1. Regardmg item 9, (a) the Intervenors' attempt to introduce public exposure relative te transportation doses is improper because the GEIS and the 900 person-rem differential relate only to occupational exposures; and (b) contrary to the Intervenors' assertion. YAEC did not arnve at its present estimate of 7 person-rerr for transportatwn workers (which is in hne with the latervenors' RADTRAN estimate of 9 person-rem) by "scalmg down" transportation doses to account for the smaller size of Yank:e Rowe relative to the GEIS reference reactor, but rather to account for its estimate that fewer shipments would be required for that facihty.

2. Regarding item I, (a) the Intervenors' discussion of background dose corrections is confused about the distmction between correctmg for such doses by removing them from incurred dose measurements and correcting for exposures incurred for

'lLDs while those devices are in storage and not being worn; and (b) although pernutted to do so. YAEC does not subtract background from dosimeteri while in use, thereby adding to the conservatism of its exposure figures.

Rogardmg item 4, the Interverars' claim that they were prosided w;th insufficient information to ide a disciphned analysis of YAEC's "to go" analysis is incorrect because dunng dawovery they were given documents that gave a detailed break-down of all the "to go" activities, including estimated worker hours and exposure rates and their expert was provided an opportunity to ask any questions he wanted about these matters.

4. Regardmg item 6, (a) the Intervenors' use of extrapolations regarding the yearly expos se rate and the amount of time remaining to complete decomtrussioning to reach the figure of 400 person-rem is entirely without basis, particularly because, as Dr. Moeller's affidavit estabbshes, a "proporuonahty"-based argument regardmg exposures is entirely speculative; and (b) besides failing to attach any particular person-rem value to concrete decommissioning, the Intervenors' suggestion that concrete structure decommissioning will involve high occupational exposures because of the use of explosives on the contaminated concrete and the lack of any full accounting of the amount of concrete contamination at the facihty does not account for the fact that the Yankee Rowe decomnussioning plan provides for concrete structures to be decontaminated to background before being demolished and that the decommissioning plan contains data on concrete contanunation.

5. Regarding item 11, the Intervenors' assertions that there is no site characterization plan and that soil contamination will result in additional exposures does not account for the site characterization data submitted with the decomntssioning plan and YAEC's conclusion, based on that data, that exposure for such activities will be low because the radioactivity level is low.

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6. Regardmg item 7, besides the fact that the report that is the basis for the GEIS (NUREG/CR-0130 (June 1978)), did not include inhalation dose figures, YAEC asserts that inhalation doses do not matter because YAEC has counted them during the decommissioning period, taking into account all significant radionuclides, and found them to be an insignificant contritsutor to dose (0.5 person-rem).

7. Regardmg item 3, the appbcable GEIS table (Table 4.3-2) (a) specifically acknowl-edges . hat " custodial care," which is long-term care unique to the SAFSTOR, is not apphcable to DECON; and (b) does not include DECON-period routine O&M, such as spent fuel pool operation or license-required routine mamtenance, surveil-lance, and inspection.

See YAEC Reply at 4-10; Errata to Reply Memorandum of [YAEC] (Motion for Summary Disposition)(Sept. 16,1996) at 1; Mellor Reply Affidavit at 1-11.

In addition, YAEC asserts that in bifurcating this proceeding into an "en-velope" phase and a " relief" phase, the Board has applied an incorrect legal standard concerning the question whether the YAEC DECON option will ex-ceed the 900 person-rem occupational exposure DECON/SAFSTOR differential that the Commission has indicated is the general benchmark for judging the validity of a licensee decommissioning option choice. According to YAEC, be-cause a significant portion of the decommissioning work has been done relative to this facility, any judgment now about whether it is appropriate to shift from DECON to SAFSTOR should be based solely on an analysis of whether the l I

exposures necessary to remove the existing facility radioactivity would exceed th.: 900 person-rem differential. See YAEC Reply at 10-13.

C. Discussion YAEC's declaration that it is entitled to a decision in its favor on the Intervenors' admitted contention rests on its assertion that there are no genuine material factual disputes concerning two decommissioning dose figures: (1) "to date" occupational exposures for its modified DECON process have amounted to 440 person-rem; and (2) occupational exposures "to go" are estimated at 140 person-rem. According to the Licensee, this amounts to a total DECON decommissioning occupational exposure of 580 person-rem that, w hen compared with the GEIS figure of 333 person-rem for the SAFSTOR option, results in a differential of approximately 250 person-rem that is well within the relevant 900 person-rem " envelope" identified by the Commission. The Intervenors, in contrast, seek to establish that a genuine material factual dispute exists regarding one or more of these numbers. As we have outlined above, they assert additional dose amounts are applicable to the "to date" 440 person-rem figure (items 1,2, 3, 7, 8, and 10) and the "to go" 140 person-rem figure (items 4, 5, 6, 9, and 1I). They also maintain that the GEIS SAFSTOR dose figure of 333 person-rem should not be used for determining whether the " envelope" has been exceeded; 98 1

l rather, the Intervenors declare the appropriate number is 186 person-rem, based on a 1979 decommissioning study that included Yankee Rowe as one of its reference reactors.

YAEC, the Staff, and the Intervenors have presented affidavits of " expert" witnesses in support of their contrary assertions regarding the existence of gen-uine material factual disputes relative to the various additional / revised exposure j figures introduced by the Intervenors? In at least one instance, the Intervenors' I point may be well taken. Their assertion regarding the failure of the Licensee to include exposures (41 person-rem) relating to the offsite processing of con-taminated wastes (item 8) likely has merit. In other instances, their claims apparently have no validity. For example, the additional dose (94 person-rem) they attribute to the public in connection with waste transportation (item 9) seemingly has no relevance here because the 900 person-rem envelope with which we are concerned unJer the admitted contention is one that involves  !

occupational - not public - doses."

Ultimately, however, we need not consider each of the Intervenors' claims regarding these purported factual disputes because, under our analysis, they do not fulfill the requirement that they be " material" to our resolution of the Licensee's summary disposition motion. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986) (factual disputes that are " irrelevant or unnecessary" will not preclude summaryjudgment), This is so because, even if(1) those items for which the Intervenors have ascribed a dose figure are attributed to either the Licensee's "to date' or "to go" figures as the Intervenors' assert they should l be," and (2) we utilize the intervenor-proffered 186 person rem SAFSTOR occupational dose figure, the DECON/SAFSTOR differential that would result

' As was noted above, YAEC has challenged the credennals of the Intervenors' expert witness, Dr. Marvin Resnikoff, to tesufy sn a number of areas ancluding dosmetry, health physics, arkt construcuon engineering. See sopra p 97. For present purposes we need not resolve that matter because, even assunung Dr. Resnikoff has the required expertise, we 6nd th a those imervenor concerns for which lus af6 davits are ened as suppen do not create a genuine disputed matenal factual issue W Ahhough the Intervenors' onginal ALARA contennon (Comennon A) made reference to pubhc exposures, see LBP-9615. 44 NRC at 18, as recast by the Board to reneet the substance of the intervenors' "new dose argument." the admitted centelmon clearly relates only to occupaional doses because ile are the basis for the 900 person-rem " envelope" now at issue. See supra note 2.

"The Imervenors have raised several concerns about YAEC dose calculations or esumanes witimut mdicaung what adthtional exposure can be attnbuted to their concern These include their aswrtions about the vagueness of the I scensee's "to go" nuscellaneous category Ottm 4h uncertainty over the vahdity of past YAEC esumates htem 5L uneenainty over concrete contammation Otems 5 and 6); failure to account for " hot parucles" Ofem 7(c)); underesumauon of total pubhc airborne efnuent errassion exposures Otem 10); and uncertainty over soil cleanup Otem 11) In the contest of the adnutted contennon,is which we are called upon to consider whether the total Yankee Rowe DECoN exposure falls wittua a speci6ed envelope, ttus failure to provide any esumate of the exposures involved essenually renders these concerns immatenal Given stus Aaw, wtuch in many matances seems rooted in the adequacy of Intervenors' discovery efforts see infra p.101, these matters could be re)cceed out of hand We nonetheless do deal with the hrst three of these fCimsmurd) 99

1 i

l with the inclusion of those exposure figures would not exceed the 900 person-rem envelope. 2 The one factual matter that we do consider because it is potentially " material" is the Intervenors' assertion that the Licensee's "to go" figure should be 400 person-rem rather than the 140 person-rem projected by YAEC, a difference of 260 person-rem. In contesting the 140 person-rem figure," the Intervenors have asserted that disputed material factual issues exist concerning that figure in that (1) because of the general description of the deli:4eated activities and a separate category of "etc." or " miscellaneous" activities, they do not have enough information regarding the "to go" activities to affirm the reasonableness of the YAEC estimate (item 4); (2) YAEC estimation methodology is suspect

)

(item 5); and (3) recognizing that yearly exposure rate for the prior years in l which decommissiemng 1.as been conducted has been approximately 160 person- I rem, it is " reasonable to assume" that rate will obtain for the 21/2 years that they assert remain to complete the balance of the project (item 6). We look to each of these asserted genuine material factual disputes in turn.  ;

The agency's rules of practice in 10 C.F.R. 6 2.749(c) provide: 1 Should it appear frorn the affidavits of a party opposing the moton that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the presiding l

concerns below m the content of out discussion of the validay the Intervenors' argument that the YAEC "to go" dose esumate is deucient and should be 400 person-rem. See refra pp.10403 As to lhe others, even putung aside the fact that the purported underesumanon of puche airborne effluent esposures scenungly is not relevant because the concern here is with occupauonal exposures, see supra note 10 and accompanying text. we nose that there as no suf6ciently probauve evidence that this item or the " hot panicle" or smi contammanon concerns.

even if accepied, would make any significant coninbunon to total DECoN caposures. See Anders m. 477 U S. at 249 (evidence that is "merely colorable" or is "not sigm6cantly probative" will not preclude sununary judgment).

Compare Mellor Supplenrntal Af6 davit at lati and McIlor Reply Af6 davit at 8-11 wali Resmkoff Opposinon Af6 davit at 1112,1517 sad Resmkoff Reply Af6 davit at 2.

"The following Board-constructed table illustrates this pomt.

Yankee Rowe "To Date" Exposures 440 person-rem Yankte Rowe "To Go" Estimated Exposures 140 person-rem Background Underesumanon Diem 1) 25 person-rem 1992 "DECoN" Exposures Otem 2) 94 person-rem operstum and Mainienance (acm 3) 34 person-rem Inhalation Domes Otem 7) 7 person-rem Offsne Waste Processing (iiem 8) 41 person rem Transportanon Exposures 6 tem 9)  % erson-rem t

Yankee Rowe DECON Total Exposures 877 person-rem Yankee Rowe SAFSToR Estimate 186 person-rem Yr.nkee Rowe DECoN/sAFSToR Differennal 691 person-rem U

Ahhough YAEC gives a "to go" esumale of 140 person-rem. in refemns to this esumate the Intervenors use a Agure of 91 person-rent See, e g. Resrukoff oppossuon Affidavit at 19 Ttus apparently is taken from a sutwatal 6 3ure given on a table supphed by Mr. Mellor to explain the nature of the LJeensee's "to go"esumane See Mellor Supplememal Af6 davit. exh. 2. we are unable to discern the Intervenors' basis for usmg the lower 6gure, and thus uubze the higher.140 person-rem figure supported by the Lacensee.

100

d officer may refuse the apphcation for summary decision or may order a continuance to penmt affidavits to be obtained or make such other order as is appropriate .

In this instance, the Intervenors' assertions about a lack of information regarding activity descriptions and a " miscellaneous" activities category generally would be the type of argument made to support obtaining discovery. The problem is that, consistent with their previous concerns about their need for information to respond to the YAEC summary disposition motion, see LBP-96-15,44 NRC

, at 38-39, they already have been given the opportunity to conduct discovery regarding their contention.

The Intervenors complain about a lack of detail in the description in Mr.

Mellor's July 10,1996 affidavit, which indicated that the 140 person-rem "to go" figure was a "[p]rojection to compile all remaining decommissioning activ-ities (e.g., reactor vessel removal, lower neutron shield tank removal, activated cor ete removal, decontamination of buildings, etc.)." Mellor Summary Dispo-sition Affidavit at 1I n.l. They, however, had an opportunity to take discovery to find out the exact nature of those items. They did not submit a motion to compel or any other complaint about the discovery information provided by YAEC. Consequently, we have no cause to believe the Intervenors were denied any information they requested regarding the nature of the remaining "to go" activities. IIaving apparently failed fully to utilize the discovery afforded them, they cannot now ir.terpose that shortcoming as the basis for a genuine material factual dispute."

Regarding the questio.1 of the YAEC estimation method as it reflects on the viability of its "to go" estimate, as we noted above, the Licensee has provided an extensive narrative discussion of the history of its decommissioning dose estimation efforts, including the first estimate made by TLG Engineering, Inc.,

in 1992, a 1993 estimate prepared by YAEC itself, and the 1996 estimate that is the basis for the current "to go" estimate of 140 person-rem. See Mellor Summary Disposition Affidavit at 3-5; Mellor Supplemental Affidavit at 4-

8. Additionally, YAEC sets forth a detailed explanation of the methodology, i.e. engineering analysis, used in arriving at those estimates, which the Staff finds accep:able. See Mellor Summary Disposition Affidavit at 2-3; Mellor Supplemental Affidavit at 13-15; Willis Affidavit at 2 3: Fairtile Affidavit at 2-3. In this regard, the Licensee describes a number of phenomena that provide confidence in its exposure estimates. These include (a) radioactive isotope decay from cobalt-60 that results in a 13% dose field reduction per year; (b) radioactive source term removal procedure, which results in dose rates diminishing because M ne parucular "nuscellaneous" category that is the subject of this intervenor concern, see Mellor supplenrntal Affidavit. esh 2. accounts for only 14 person-rem, an amount that, even af doubled or inpled, would rnake no rnaienal contnbucon to the occupauonal dose differencal at issue here 101

more contaminated components are removed first; and (c) integration of" lessons learned."

l Finally, YAEC has provided supporting documentation (which it declares was l provided to the Intervenors during discovery) that outlines in detail the various activities that make up its "to go" estimate. This documentation includes figures

! showing the estimate of exposure hours to perform each activity, the effective j dose rate in the work area, and the estimated person-rem dose for the activity, the l components needed to arrive at an estimate of worker exposure for the various activities. See Mellor Supplemental Affidavit, exh. 6, attach. 2 (Memorandum RP-96-19); see also id., exh. 4 (Memorandum YSM-96-20).85 l In the face of this information, the Intervenors declare that there are several l

disputed material factual issues regarding the validity of the YAEC estimates.

See CAN/NECNP Disputed Facts at 4-8; CAN/NECNP Reply Disputed Facts at 2-7. Based on our review of the parties' filings, however, the only one of these that apparently would have any real significance relative to the validity of the l YAEC estimates is the Intervenors' concern about concrete contamination. See CAN/NECNP Reply Disputed Facts at 3-4 ("significant portion of the remaining j work" involves demolition and other activities associated with contaminated concrete).

According to the Intervenors, the " reasonableness" of the YAEC estimate is suspect because concrete decommissioning will be " dirty" and the extent of con-crete contamination is unknown, meaning that, notwithstanding the general de-cline in the facility's radioactive inventory, this activity could cause unaccounted-for exposures. See CAN/NECNP Disputed Facts at 7; CAN/NECNP Reply l Disputed Facts at 4; Resnikoff Opposition Affidavit at 9; Resnsoff Reply Af-l fidavit at 2. In fact, as is reflected in the Yankee Rowe decommissioning plan, i the Licensee has made efforts to survey and account for the extent of con-

! crete contamination. See Yankee Atomic Electric Company, Yankee Nuclear Power Station Decommissioning Plan at 3.1-7 to -8, Tables 3.1-5 to -7 (rev.

0.0 Dec.1993) [ hereinafter Decommissioning Plan]; see also Mellor Supple-mental Affidavit, exh. 6, attach. 2 (exposure estimates for activities including

" concrete / steel decon," "[ vapor container (vc)] concrete / steel decon" below and aoove charging floor, and "v; activated concrete removal"). Nrther, although the Intervenors postulate a " dirty" concrete decommissioning process based, at least in part, on the use of " explosives," the plan indicates that (1) explosives are not to be used in decommissioning; (2) structures generally are to be de-contaminated before they are taken down; and (3) if coatings and hand wiping will not stabilize surface contamination, then airborne contamination control and waste processing systems will be used to control contamination releases.

38 So there is no confusion regarding our citations to the record, we nose that the Meuct supplemental Affidavit contams sin exhibits, some of which. in turn. include attachments labeled as "ethibit."

i l 102 6

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See Decommissioning Plan at 1.2-4, 2.3-10, 2.3-12 to -13; see also 1 Yankee Atomic Electric Company, Final Safety Analysis Report, Yankee Nuclear Power Station, Rowe, Massachusetts at 10,200-7,200-9 to -10 (rev. June 1995). In the latter instance, any water from surface washing methods will be collected and processed in the plant liquid waste processing system, while contaminates from methods that will result in airborne particulate matter will be controlled using vacuum removal with high efficiency particulate air (HEPA) filtration systems.

See id. In this light, the Intervenors' bald assertion that concrete decontamina-tion will provide an unspecified level of exposure is simply conjecture that, even

when supported by an expert, will not establish a genuine material factual dis-pute. See United States v. Various Slot hiachines on Guam, 658 F.2d 697,700 (9th Cir.1981)(in the context of a summary judgment motion, an expert must

back up his opinion with specific facts); see also AicGlinchy v. Shell Chemical j Co., 845 F.2d 802, 807 (9th Cir.1988) (expert's study based on " unsupported 4

assumptions and unsound extrapolation" cannot be used to support summary judgment motion).

Finally, wholly inadequare to establish a material factual dispute is the Intervenors' assertion that it is " reasonable to assume" a 400 person-rem "to

, go" figure based on an " average" yearly 160 person-rem exposure rate over the purported 21/2 -year duration of the project. Resnikoff Opposition Affidavit at 9. Initially, this assertion suffers from the problem that it is based on a

, " rough estimate" snat once resumed, "it is reasonable to expect" completion j of "to go" decommissioning will take more than twice as long as the 1 year the Licensee has estimated. Id. In support of its 1-year estimate, YAEC cites its decommissioning plan swedule (Table 2.3-5) indicating that approximately

11/2 years are required for dismantlement period activities, in conjunction with a decommissioning completion percentage of 601 See Mellor Reply Affidavit at 7. The Intervenors proffer their completion schedule based on the assertion that decommissioning activities can be expected to proceed at the same pace as has been achieved since 1993, without offering any reason this is so (other than it is " reasonable") or why the Licensee's proposed schedule is deficient. In this context, the Intervenors again have provided nothing more than speculation, which is not sufficient to establish a genuine material factual dispute.

Even more troubling, however, is the fact that at its core their 400 person-rem "to go" dose argument is merely a variant of their " proportionality" theory that the recer,ily filed Licensee and Staff analyses have thoroughly 4

discredited and the Intervenors have made no attempt to defend. As YAEC and

the Staff made clear in their summary disposition submissions, a reasonably accurate collcctive dose assessment cannot be done by simply assuming that there is a proportionality between the occupational exposure rate resulting from facility cleanup activities for a particular level of radioactivity and the exposure rate likely to accrue in decommissioning any additional radioactive 103

l l

l inventory. Instead, a reasonably accurate dose assessment requires consideration of a number of factors, including component characteristics (e.g., location, size and shape, shielding, and complexity); exposure conditions (e.g., internal or external); chemical and physical nature of the radionuclide and its quantity; radionuclide decay mode and emission energy; and decommissioning operation phase. See Mellor Supplemental Affidavit at 16-18; Moeller Affidavit at 3-10; Willis Affidavit at 3-4.

The Intervenors now would have us ignore all these factors and make the simplistic assumption that the "to date" decommissioning activities are essentially identical to the remaining decommissioning activities so as to provide l the same yearly 160 person-rem exposure rate during the time needed to I complete "to go" decommissioning.86 In the face of the uncontroverted evidence now before us demonstrating that because the " proportionality" theory fails to account for these factors, it lacks any reasonable scientific basis for establishing a "to go" figure, we are unwilling to do so. We thus conclude that the Intervenors'

" average annual dose" variation on this theme, which incorporates the same analytical shortcomings as their proportionality " theory," does not create a l genuine material factual dispute about the validity of the Licensee's "to go" i estimate.

l As we noted above,in light of the Licensee's showing regarding the validity of its "to date" and "to go" DFCON dose figures, even accepting the other oc-cupational dose estimate revisions proffered by the Intervenors, see supra note 12, unless the Intervenors can establish a genuine material factual issue relative to their assertion that the "to go" dose estimate for Yankee Rowe decommis-l sioning should be in the neighborhood of 400 person-rem, the Licensee would j be entitled to summary disposition in its favor on the substance of their con-I tention. Because the Intervenors have not done so, we grant YAEC's dispositive

)

I motion.37 1

III. CONCLUSION i In connection with their challenges to the Licensee's "to go" decommission-ing dose estimate for Yankee Rowe as described in items 3. 4, and 5 above, I

the Intervenors have failed to show a genuine issue as to any material fact that l' Although we need not resolve the maner. Y AEC asserts that the average annual done between 1993 and 1996 (apparently without counung doses for the year 1992 the intervenors otherwise mamtain should be included in the total dose 6gwes)is. In fact.130 person rem rather than the intervenor-proffered 160 person-rem average &ue fipure.

I an amount that approumaies the highest annual do e during that penod. See Melkw Reply Affidavit at 7.

Pumng ande the queshon of the propnety of waiong unni a reply pleadmg to challenge the Board's ruhng on the apphenble legal franrwork for this proceeding, because we 6nd in the ticensee's favor on the "envekte" phase of this proceeding as it was outhned in our July 31.1996 memorandum and order. we need not consider YAEC's arguments regarding the vahdiry of that Board deternunanon 104 l

i

-t

would require an evidentiary hearing regarding the Licensee's factual demon-stration that occupational exposures from its modified DECON plan fall within the applicable 900 person-rem " envelope." Because those items present the only disputed factual matters that potentially are inaterial to the Intervenors' contention at issue in this proceeding, we conclude that, as a matter of law, Licensee YAEC is entitled to a decision in its favor regarding the merits of that contention.

For the foregoing reasons, it is, this twenty-seventh day of aeptember 1996, ORDERED that

1. The September 13, 1996 request of CAN/NECNP for leave to file a reply to the Staff's Septemner 9,1996 response in support of YAEC's summary disposition motion is granted.

2. He September 17, 1996 request of CAN/NECNP for leave to file a reply to YAEC's September 13,1996 reply is denied; provided, however, that the September 17, 1996 pleading entitled "[CAN/NECNP] Reply to YAEC's Reply Memorandum (Summary Disposition)" and the accompanying "Second Reply Affidavit of Marvin Resnikoff, Ph.D." shall remain lodged in the docket of this proceeding.

3. De July 10,1996 " conditional" summary disposition motion of YAEC, as ren, 2d in its supplemental filirg of September 3,1996, is granted and, for the reasons given in this memorandum and order, a decision regarding the merits of the Intervenors' admitted contention is rendered in favor of YAEC.

4. As the determination rendered herein terminates this proceeding before the Board, pursuant to 10 C.F.R. 6 2.786, within 15 days after service of this Memorandum and Order a party may file a petition for review with the Commission on the grounds specified in section 2.786(b)(4).

5. In accord with the Commission's ruling regarding a stay pending appeal from the Board's determination in LBP-96-2,43 NRC 61 (1996), see CLI-96-5, 43 NRC 53,59-60 (1996)," any effectiveness of this Mcmorandum and Order is stayed up through and including Wednesday, October 9,1996, to provide the U

Yesterday, the intervenors hied a rnution askmg G.at, if we granted YAEC's wmmary disposiuon nwoon. we enier a 3-day " housekeeping" stay to perrmt them to hie a stay request with the Conmussion. See [CAN/NrCNP)

Monon for Housekeepmg Stay (Sept. 26.19%) at 1. YAEC today has hied a pleading opposing the Intervemrs' request on the ground that, havmg made no attempt to demonstrate comphance w.th the standards set forth au 10 CF R.12.788, the Intervenors' only basis for a stay is their apparent assumpoon there is some right to a stay pending appeal See Response of [YAEC] to Monon for " Housekeeping Stay"(Sept.27.1996) at 2. rur its part.

the Staff has no ob)ccuon to the intervenors' stay request. See NRC staff's Response to inservenors' September 26.1996Mouon for Housekeeping Stay (sept 27.1996) at 1.

we enter the stay above not at the request of the intervenors but in conformance with the Comnussion's prewmus ruhrigs relauve to ttus proceeding Moreover, m emenng this stay, we do so with the expectauen that the Intervenurs will moced 6ie their stay request with the Conumssion on September 30. 1946,as they represented in their September 26 pleading, so that the penod we provide gives a reasonable amount of ume for responses and a Comnussion deternunanon regarding their monon 105

i parties with an opportunity to seek from the Commission any appropriate stay pending review.

THE ATOMIC SAFETY AND LICENSING BOARD G. Paul Bollwerk. III, Chairman ADMINISTRATIVE JUDGE i

I Jerry R. Kline ADMINISTRATIVE JUDGE Thomas S. Elleman ADMINISTRATIVE JUDGE Rockville, Maryland September 27,1996 l

l'Copws of tius Memorandum and Ordet have been sent this date to counsel for YAEC by Internet E-mail transnussma, to counsel for CAN/NECNP and the Commonweahh of Massachusetts by facsinule transmission.

and to Staff coanset by E-maal transnussion through the agency's wide area network.

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