ML20199L212

NRC Staff Response to Franklin Regional Council of Governments (Frcog) Motion for Leave to Intervene.* Board Should Allow Frcog to Participate in Hearing That Board May Otherwise Order.With Certificate of Svc

ML20199L212
Person / Time
Site:	Yankee Rowe
Issue date:	01/25/1999
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#199-19931 LA, NUDOCS 9901270160
Download: ML20199L212 (11)

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[%)f JanuB925E1999 USHRC UNITED STATES OF AMERICA 00 JM126 P5 :01 NUCLEAR REGULATORY COMMISSION

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BEFORE THE ATOMIC SAFETY AND LICENSING Bd RD Ab1! eF in the Matter of ) '

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

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(Yankee Nuclear Power Station) )

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NRC STAFF RESPONSE TO FRANKLIN REGIONAL COUNCIL OF GOVERNMENTS' MOTION FOR LEAVE TO PARTICIPATE INTRODUCTION On January 4,1999, the Franklin Regional Council of Governments (FRCOG) served a

" Motion for Leave to Participate," dated December 30,1998,in the captioned proceeding. By its motion, which purpons to be filed pursuant to 10 C.F.R. 2.715(c) ofthe Commission's regulations, FRCOG asks to be permitted to panicipate in a hearing in which its concerns would be addressed.

FRCOG also seeks reliefas follows: 1) that the NRC provide FRCOG with $ 100,000 to hire experts, attorneys and expert witnesses; 2) that the NRC grant a full, formal hearing under 10 C.F.R. Part 2, Subpart G to be held in Franklin County, Massachusetts; and 3) that the NRC make materials and documents relevant to Yankee Atomic's License Termination Plan (LTP) available for thirty days before any meeting or hearing and advertise such meeting or hearing in the Federal Register and local media outlets for a minimum of thirty days. With regard to Item 2, its request for a hearing, FRCOG asks that the NRC not approve the LTP "without said hearing process" and that Yankee 9901270160 990125 PDR ADOCK 05000029 Oq C PDR

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, Atomic not be permitted to conduct any activity in funhering the LTP until every aspect of the Plan is formally approved after hearing.

As discussed below, the NRC staff (Staff) has no objection to FRCOG's participation l I

pursuant to 10 C.F.R. Q 2.715(c)if either of the 2.714 petitioners is found to have submitted an I admissible contention and a hearing is ordered.

DISCUSSION l l

The Commission's regulations in 10 C.F.R. 2.715 govein participation by a person not a 1

pany, and 10 C.F.R. 2.715(c) states that the presiding officer will afford representatives of an interested state, county, municipality, and/or agencies thereof, a reasonable opportunity to participate and to introduce evidence, interrogate witnesses and advise the Commission.

In order for an interested State to participate in a hearing on a license amendment, a petitioner for intervention must be admitted as a party pursuant to 10 C.F.R. Q 2.714. See Yankee Atomic Electric Company (Yankee Nuclear Power Station), CLI-98-21,48 NRC 185,202 n.5 (1998).

Although the Commission has determined that New England Coalition on Nuclear Pollution (NECNP) and Citizens Awareness Network (CAN) have standing to raise contentions,48 NRC 185 at 207-211, the Atomic Safety and Licensing Board delegated to preside in this matter has not yet ruled on the admissibility of the contentions of those petitioners.

Not being a party, FRCOG may file before the Board only with the Board's permission. See Yankee Atomic Electric Company (Yankee Nuclear Power Station), LBP 98-12,47 NRC 343,346 (1998). However, in CLI 98-21, while affirming the Licensing Board's denial of participation by the Franklin Regional Planning Board (FRPB), a body that provides advice to the FRCOG, the Commission noted that FRCOG was free to seek participation rights before the Licensing Board and

to use the FRPB as it saw fit. 48 NRC 185,203. In its Notice, Change in Filing Schedule and Date of Prehearing Conference,63 Fed. Reg. 67494 (December 7,1998), the Board noted that the prehearing conference would consider petitions from interested States or governmental bodies, as discussed by the Commission in CLI-98-21. Id. The StafTdoes not object to FRCOG's participation and believes that the Board should grant the motion insofar as it concerns participation pursuant to 10 C.F.R. { 2.715(c) if the Board otherwise orders a hearing. However, the Board should not admit the issues raised by FRCOG in it motion as matters for litigation. Nor should the Board grant the other relief that FRCOG L as,1) funding,2) a hearing, and 3) authority with regard to the time for noticing meetings and hearings, as none of these matters is within the power of this Board to grant.

A. FRCOG's Concerns FRCOG asks to be allowed to raise seven concerns.

1) FRCOG's first concern FRCOG states its first concern as follows:

Decommissioning activities employ methodologies and techniques that are experimental, untested,and/orunproven. Forexample,the segmentationtechniques that were used for cutting the high activity components were apparently untested and proved to be somewhat unsatisfactory, resulting in recommendations for modification ofthe technique. Similarly, decommissioning ofthe spent fuel pool and ion exchange pit will require the use of methods and techniques that have not previously been employed.1 This concern may not be pursued in any proceeding on Yankee's License Termination Plan, because the scope of the proceeding is limited to whether the plan ought to be approved.

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! ' FRCOG has not numbered the pages ofits Motion. Its first concern appears on the third unnumbered page.

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See 48 NRC 185 at 204-205. Decommissioning and dismantlement are already authorized and are not available for litigation in this License Termination Plan proceeding. Sec 48 NRC 185 at 206.

2) FRCOG's Second Concern FRCOG's second concern is:

Methods that have been used to survey and monitor the site for contamination do not incorporate appr opriate rendom sampling and data collection methods, but rather rely on computer modeling and anecdotal evidence. This has resulted in a decision not to sample or monitor a large area that is owned and controlled by YAEC but lies outside a small " impact area." This creates the risk that contamination may exist in areas which have not been predicted by computer, perhaps due to vagaries in weather patterns, local hydrology, -

animal transport, or even illegal activity. Contamination from these unpredictable sources will never be discovered using the current sampling strategy; random sampling must also be used on the entire property to determine what if any mitigation is required, before any of the site is released.

With regard to this matter, FRCOG does not raise a litigable issue, as the LTP does address the very unaffected areas that FRCOG asserts that it ignores. See LTP, Final Site Survey Plan at A-27. Further, FRCPG has not demonstrated or even alleged any inadequacy of the discussion in the LTP.

3) FRCOG's Third Concern FRCOG's third concern is:

Contamination of groundwater and methodologies for sampling remain an issue. The selection ofmonitoring well locations appears to be based on the locations of known or suspected contamination sites and does not appear to factor in the possibility that local geology may include groundwater divides, impervious layers, or bedrock close to the surface. A thorough investigation into possible groundwater contamination cannot assume a uniform substrate through which water moves predictably, but must also include discussion and investigation of the possible infiences of surficial geology and bedrock features.

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. This concern is completely lacking in basis in that FRCOG has not demonstrated or provided any basis for stating that the approach of Yankee's LTP violates any regulatory requirement or is otherwise inadequate.

4) FRCOG's Fourth Concem -

FRCOG's fourth concem is:

In particular, the migration of radionuclides from acknowledged sub-floor contamination has not been sufficiently studied and considered in the context oflocal hydrology and surficial geology.

This concern is lacking in specificity in that it fails to address why the LTP. Any contention that Yankee should do more must recognize what the LPT states regarding Yankee's plan and address how that statement falls short of regulatory requirements.

5) FRCOG's Fifth Concem FRCOG's fifth concem is:

Despite several rounds of questions and requests for specific data,u the impacts of radionuclide releases on fish due to effluent and accidental releases to the Deerfield River have not been addressed. Insufficient data has been provided relative to the rpecies, age, general health, or whether the fish was native or stocked - all factors that must be correlated together in order to determine true radionuclide levels in the sediment and food chain; nor has there been sufficient information about the specific testing techniques that were used. Were the properindicator species caught and tested? Native and stocked trout are the main recreational species sought by anglers in the Deerfield River drainage, yet none of this species appear to have been collected and tested in the dated April-November 1989 survey. This is a critical issue, as contaminated fish may be consumed by humans and also may introduce significant contamination into the entire food chain when other animals feed on contaminated fish. Funher, the bioaccumulation of radionuclides in fish is-indicative of the presence of these materials throughout the river system tested, at a level which may be more significant than revealed by the tests. Based on the insufficient investigation of the

e matter, it is premature to conclude that there is no safety hazard resulting from fish contamination. l This concem is beyond the scope of the proceeding, which involves approval of the LTP.

f Releases offsite during plant operation are not at issue here.  !

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6) FRCOG's Sixth Concem -

FRCOG's sixth concern is:

Sediment in the Deerfield River, in the Sherman Pond Reservoir, and near the outfall pipes has been sampled and tested, but the adequacy of these tests is questioned. The sediment behind Number Five Dam in Monroe Bridge was removed when the dam was worked on the last two years. Questions remain as to the adequacy and thoroughness ofcore sampling of the sediment behind the dam. Were these sediments tested for radionuclides and other hazardous wastes before they were removed,and how and where were they disposed of7 The next impoundment downstream, the Fife Brook Dam, is a bottom release operation. How far downstream were sediment tests conducted, as the nature of the Fife Brook operation would allow the discharge ofradionuclides which could collect as far downstream as the Number Four Dam in Buckland. No specific information has been provided about the depth or frequency of the sampling, sampling methodology used, what random sampling methods were also employed, and how the material was handled and tested in the laboratory.

Insofar as this concem relates to Yankee Nuclear Power Station, it appears to relate to the offsite effects of plant operation. Thus, it is not within the scope of the proceeding, which relates l

to onsite cleanup.

7) FRCOG's Seventh Concem FRCOG's seventh concem is:

Final site clean-up questions remain. Issues regarding formulations of effective yearly exposure dose equivalents need to be resolved. Specifically, the use of plot averages and assumptions about lifestyle and future land use introduce confusion about the actual levels of radiation proposed to remain on the site, which apparently may meet the required levels as an area-wide average but may in fact remain quite high in certain areas. Methodology for I l

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- calculating and proving the final exposure rate of 15 mr/ year is very l confusing, and the assumptions related to unit conversions of picoeuries to millirems, the daily time of exposure (is it 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> or only 87), and similar issues must be satisfactorily explained. The final site survey criteria and plan including the methodology and calculations must be reviewed and affirmed by a competent, truly independent third party. Finally, in addition to laboratory testing work provided by the licensee and the NRC, the final site survey testing work must also be independently verified by a third party.

This concern reflects FRCOG's misunderstanding of the applicable regulations. It is not admissible for litigation in this proceeding except pursuant to 10 C.F.R. 2.758, as it challenges the !

l Commission's regulations in 10 C.F.R. Part 20, Subpart E. The matters that FRCOG finds confusing are explained in the Supplementary Information published with the Commission's Final Rule, Radiological Criteria for License Termination 62 Fed. Reg. 39058 (1997).

In summary, none of FRCOG's concerns would be admissible as contentions, as they lack basis and specificity, are beyond the scope of the proceeding, and impermissibly challenge the j Commission's regulations. The Board should not permit FRCOG to litigate these matters in this proceeding.

B. FRCOG's Other Reauests for Relief As noted above, in addition to participation regarding its concerns, FRCOG also requests 1) funding,2) a hearing, and 3) reliefwith regard to noticing and scheduling documents, meetings, and hearings.

As regards funding, the Licensing Board denied Franklin Regional Planning Board's (FRPB) request for funding, ruling that the Commission lacked the authority to grant such requests. 47 NRC at 358. FRCOG's request for funding should be denied for the same reason.

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8 l As regards its request for a hearing, participants pursuant to 10 C.F.R. 2.715 may also seek i I

intervention pursuant to 10 C.F.R. { 2.714. FRCOG has not sought such participation, and any such l request by FRCOG would be late-filed and would need to address the criteria of 10 C.F.R. f j 2.714(a)(i) regarding late-filed interventions.. FRCOG's request that the NRC not approve the LTP and that Yankee Atomic not be permitted to conduct any activity under the LTP prior to the  ;

completion of a hearing is relief that is not within the authority of this Board to grant, as the regulations regarding this matter state that where the Commission has made a final finding that no significant hazards consideration is involved and that the amendment should be issued, the ,

amendment will be effective on issuance, even if an interested person meeting the standards for intervention called for in f 2.714 has filed a request for a hearing.10 C.F.R. f 50.91(a)(4). The Staffs determination regarding no significant hazards consideration is final, subject only to the Commission'sdiscretion,onitsowninitiative,toreviewthedetermination.10C.F.R.f 50.58(b)(6).

As concems its request concerning the availability of documents " thirty days before any meeting or hearing," the Board lacks the jurisdiction to grant relief related to the Staffs non-adjudicatory functions and, thus, may not direct the Staff regarding the availability of documents related to Staffmeetings; see 48 NRC 185 at 213.; Curators ofthe University ofMissouri, CL1-95-8, 41 NRC 386,3% (1995).. The request for availability of Staff documents thirty days before a hearing is inconsistent with Commission regulations regarding, for example, the filing of testimony, 10 C.F.R. 2.743, not to mention the Commission's Statement ofPolicy on Conduct ofAdjudicatory Proceedings, CLI 98-12,48 NRC 18 (1998), where the Commission repeatedly discusses the need

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for expedition in its proceedings. Thus, the Board should not grant FRCOG's request for reliefin 1

this regard.

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i With regard to FRCOG's request for thirty day notice of meetings and hearings, the  ;

i Commission addressed the matter of Staffmeetings with the public in CLI 98-21, where it said that l the Board was correct in declining to address NECNP and CAN's grievances conceming a Staff j meeting with the public. 48 NRC 185 at 213. In the absence of Commission direction to the contrary in this matter, there is no time period established by the Commission's regulations for noticing meetings. As regards hearings, the establishment of an inflexible rule requiring a thirty day 1

l notice for hearings would be contrary to the Commission's recent policy statement, CLI 98-12,48 l NRC 18 (1998).

CONCLUSION For the reasons discussed above, the Board should allow FRCOG to participate pursuant I

l to 10 C.F.R. 2.715(c) in any hearing that the Board may otherwise order. The Board should l

deny all other relief that FRCOG requests in its motion.

I Respectfully submitted, VL+L , ~o j Ann P. Hodgdon  ;

l Counsel for NRC Staff j l

l Dated at Rockville, Maryland this 25* day of January,1999. 4 1-i 0

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UNITED STATES OF AMERICA USilRC  ;

NUCLEAR REGULATORY COMMISSION l BEFORE THE ATOMIC SAFETY AND LICENSING BOARE ,

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In the Matter of )

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

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(Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I I hereby certify that copies of "NRC STAFF RESPONSE OPPOSING FRANKLIN REGIONAL COUNCIL OF GOVERNMENTS MOTION FOR LEAVE TO PARTICIPATE "

i in the above-captioned proceeding have been served on the following through deposit in the Nuclear Regulatory Commission's intemal mail system, or by deposit in the United States mail, first class, as indicated by an asterisk this 25th day of January,1999:

Charles Bechhoefer, Chinnan Atomic Safety and Licensing Board Administrative Judge Panel i

Atomic Safety and Licensing Board Mail Stop T 3-F-23 Mail Stop T 3-F-23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington,DC 20555 Adjudicatory File (2) Dr. Thomas S. Elleman*

Atomic Safety and Licensing Board Administrative Ju: Ige Mail Stop T 3-F43 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 704 Davidson Street Washington, DC 20555 Raleigh, NC 27609 Office of the Commission Appellate Office of the Secretary -

Adjudication ATTN: Rulemaking and Mail Stop: O 16-C-1 Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O 16-C-1 Washington, DC 20."55 U.S. Nuclear Regulatory Commission

. Washington,- DC 20555

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, .- j 00CKETED  !

l s UNITED STATES OF AMERICA USHRC i NUCLEAR REGULATORY COMMISSION .i BEFORE THE ATOMIC SAFETY AND LICENSING BOARY l.

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In the Maner of ) yplj,cq. ,, :WF

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YANKEE ATOMIC ELECTRIC COMPANY ) DocketNo. 50-029-LA

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I CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE OPPOSING FRANKLIN REGIONAL COUNCIL OF GOVERNMENTS MOTION FOR LEAVE TO PARTICIPATE "

in the above-captioned proceeding have been served on the following through deposit in the Nuclear Regulatory Commission's internal mail system, or by deposit in the United States mail, first class, as indicated by an asterisk this 25th day of January,1999:

Charles Bechhoefer, Chirman Atomic Safety and Licensing Board i Administrative Judge Panel Atomic Safety and Licensing Board Mail Stop T 3-F-23

Mail Stop T 3-F-23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555

. Washington,DC 20555 Adjudicatory File (2) Dr. Thomas S. Elleman*

Atomic Safety and Licensing Board Administrative Judge Mail Stop T 3-F-23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 704 Davidson Street Washington, DC 20555 Raleigh, NC 27609 Office of the Commission Appellate Office of the Secretary

' Adjudication ATTN: Rulemaking and Mail Stop: . O 16-C-1 Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: 016-C-1 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 l

\ John Stobierski* Jonathan M. Block. Esq.*

Franklin Regional Council of Governments New England Coalition on Nuclear 425 Main Street Pollution, Inc.

Greenfield, MA 01301 Main Street P.O. Box 566 Putney, Vermont 053464566 Thomas G. Dignan, Jr.* Deborah B. Katz, President * -

R. K. Gad, III Citizens Awareness Network,Inc.

Counsel for Licensee P.O. Box 3023 Ropes & Gray Charlemont, MA 01339-3023 One International Plaza Boston, MA 02110 Diane Curran

• Thomas D. Murphy Harmon, Curran, Spielberg Administrative Judge

& Eisenberg, LLP Atomic Safety and Licensing Board New England Coalition on Nuclear Mail Stop T 3-F-23 Pollution, Inc. U.S. Nuclear Regulatory Commission 2001 "S" Street, NW, Suite 430 Washington, DC 20555 Washington, DC 20009 m he,d e k m Ann P. Hodgdon Counsel for NRC Staff d

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