ML20205K954

Necnp Opposition to Yaec Motion to Reconsider Part of Prehearing Conference Order.* Necnp Requests That Panel Either Deny Yaec Omr Outright or Reconsider & Modify Contention 4 Only in Ways Suggested.With Certificate of Svc

ML20205K954
Person / Time
Site:	Yankee Rowe
Issue date:	04/09/1999
From:	Block J NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#299-20238 99-754-01-LA-R, 99-754-1-LA-R, LA-R, NUDOCS 9904140071
Download: ML20205K954 (10)

Text

,--

i ZD &N 00CKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION og pFR 13 P3 :20 Before the ATOMIC SAFETY AND LICENSING BOARD 9.- .

pp Administrative Judges: AbJU: T l Charles Bechhoefer, Chariman Dr. Thomas S. Elleman Thomas D. Murphy In the Matter of Docket No. 50-029-LA-R YANKEE ATOMIC ELECTRIC COMPANY ASLBP No. 99-754-01-LA-R (Yankee Nuclear Power Station)

License Termination Plan I i l

l NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S OPPOSITION TO YANKEE ATOMTC ELECTRhC COMPANV'S MOTION TO l RECONSIDERATION PART OF PREHEARING CONFERENCE ORDER Pursuant to permission and Order of the Panel in this matter, Intervenor New England Coalition on Nuclear Pollution [NECNP], by and through its attorney, Jonathan M. Block, hereby responds to Yankee Atomic Electric Company's filing entitled

" Objection To And Motion Of Yankee Atomic Electric Company For Reconsideration Of A Portion Of Prehearing Conference Order [ henceforth, "OMR"]

l l Statement of the Case l

NECNP incorporates by reference herein this Panel's statement of the case labeled

" Background" in the Prehearing Conference Order (Ruling on Contentions). LBP-99-14 at 2-5. The licensee in this metter, Yankee Atomic Electric Company [YAEC], filed the OMR on March 28, 1999, three days before the March 31" discovery scheduling conference in this matter. At that time, the Panel provided intervenors and NRC staff with

~

9904140071 990409 PDR o

ADOCK 05000029 eon g$

J

2 an opportunity to respond to the OMR by April 9,1999.

Points in Argument Opposing YAEC's OMR and Suggesting Alternative Relief.

1. Setting straight the broader background to this case.

Responding to YAEC's pleadings, beginning with its " Statement of the Case,"

indeed, it may be said that the Yankee Nuclear Power Station decommissioning plan was approved twice. OMR at 1. What YAEC fails to note, however, is that the first time was j

a tragedy, the second time, a farce. This mise-en-scene was due to the fact that the NRC, responding to YAEC's off-stage entreaties, chose to permit YAEC to conduct over 90%

i of the removal of residually radioactive structures and components from the Yankee j Nuclear Power Station sans decommissioning plan, sans permit, and sans NEPA compliance. See generally, Citi: ens Awareness Network, Inc., v. United States Nuclear ,

Regulatory Commission, 59 F.3d 284 (l" Cir.1995). Only after the United States Court of Appeals found that the NRC had violated the Atomic Energy Action, the National Environmental Policy Act and the Administrative Procedure, did the agency hold a post hoc hearing on YAEC's decommissioning plan.

2. Unless the Commission approves the LTP prior to August 20,1999, tSe LTP must comply with 10 C.F.R. Part 20, subpart E.

YAEC asks for reconsideration of the Panel's creation and admission of Contention 4. Reconsideration opens the door to questioning the Panel's underpinning for the decision; namely, that the appropriate regulatory standard for the LTP is set forth in the SDMP. OMR at 2-3. It is reasonable tc ask that the Panel revisit, in determining the issues raised in the OMR, the question of the precise meaning Part 20, subpart E, for a licensee in YAEC's position. NECNP believes that this Panel should construe the L

r, l 3 regulation to mean that YAEC must have Commission approval of the LTP by August 20, 1999, or else the LTP will be governed by the standards of the new Part 20 subpart E. A l completely consistent reading of Part 20, subpart E, rule may take the use of 'or' as conjunctive rather than disjunctive. In this way, the Panel can resolve the ambiguity ir the

[ use of'or' in an economical way that climinates the SDMP issue entirely.

NECNP urges this Panel to begin its consideration of the OMR with a determination of whether the LTP will be governed by SDMP standards if it is not approved by the Commission prior to August 20,1999. NECNP also urges the Panel to

. find that if the Commission does not approve the LTP prior to August 20,1999, the LTP will be judged on its conformity to the standards of 10 C.F.R. Part 20, subpart E, rather than the SDMP Action Plan. In which case, YAEC's motion should be granted only insofar as reconsideration leads the Panel to interpret Subpart E as requiring Commission approval of the LTP prior to August 20, 1999, and, hence, necessitating that YAEC conform its plan to Subpart E. In the alternative, NECNP asks that the OMR be denied.

3. The SDMP and Action Plan should not be given the forte of regulations.

The Supreme Court has noted that the Atomic Energy Act " clearly contemplates l , that the Commission shall by regulation set forth what the public safety requires as a prerequisite to the issuance of any license or permit under the Act." Citizens For Safe Power, Inc. v. Nuclear Regulatory Commission, 524 F.2d 1291,1299-1300 (D.C. Cir.

1975), citing Power Reactor Development Co. v. Industrial Union, 367 U.S. 396 (l961)

(emphasis added). The Court did not use the words " guidance" or " policy statements."

Rather, it emphasized that the Atomic Energy Act requires the Commission to act by i

r-*

4 promulgating regulations. YAEC's objection to Contention 4 might be well taken if the l \

SDMP Action Plan were more than just guidance. Curiously, a Commission issuance subsequent to the one YAEC cited to this Panel addresses the question of this Panel's authority to act when caught between duly promulgated regulations and " guidance" or l

l " policy statements" such as in the instant case. The Commission noted that the guidance l

l documents at issue [NUREG Action Plan documents, on post-TMI implementations) -

can, in terms of their relationship to existing Commission regulations, be put in two categories: (1) those that interpret, refine or quantify the general l language of existing regulations, and (2) those that supplement the existing regulations by imposing requirements in addition to specific ones already contained therein. Insofar as the first category -- refinement of existing regulations - is concerned, the parties may challenge the new requirements as unnecessary on the one hand or insufficient on the other within the limits of the regulations. Insofar as the second category - supplementation of existing regulations -- is concerned, the parties may challenge either the necessity for or sufficiency of such requirements. [....] The Atomic Safety and Licensing and Appeal Boards' present authority to raise issues sua sponte under 10 CFR 2.760a extends to both categories.

Statement Of Policy: Further Commission Guidance For Power Reactor Operating Licenses, PR-Miscellaneous Nc: ice (45 FR 417398); CLI-80-42,12 N.R.C. 654 (December 18,1980).3

' Note that even the policy statement YAEC cites in support ofits proposition contains an apparent l exception: "Under the doctrme set forth in Maine Yankee Atomic Power Co. (Maine Yankee  !

Nuclear Power Plant, Unit 2), ALAB-161, 6 AEC 1003 (1973), affirmed 7 AEC 2 (1974), i afirmed sub nom Citizensfor Safe Power v. NRC, 524 F2d 1291 (D.C. Cir.1975), intervenors i have been orecluded from raisina before the Commission and the Licensing and Appeal Boards the issue of whether, on meneric arounds not unione to a narticular olant. namething more than compliance with NRC regulations can be a prerequisite to obtaining an operating license.

Although 10 C.F.R. ( 2.758 provid some flexibility, that rule allows a challenge to existing rules and the imposition of stricter requirements only on a case by-case basis when there ve 'special circumstances with respect to the subject matter of the particular proceedmg'." . ' AR at 4-5, citing Statement ofPolicy, etc.,14 NRC 14,17 (November 3,1980) (emphasis added). N.B.: this case was not published until July,1981, hence the appearance that it was decided after the one YAEC cites. What circumstances could be more deservinc af case-by-case adjudication than one

I.

5 NECNP urges that the Panel either deny YAEC's OMR or, in the alternative, grant it only insofar as to redefine the Panel's present authority to hold YAEC to any and all dose commitments and site release standards it has included in the plan. YAEC make an issue of the " voluntary" nature ofits commitment to certain site release criteria. OMR i

at 4-6. Yet, once such items are put in the plan they cannot be said to be voluntary.

Were this Panel to hold that YAEC is free to make such " voluntary" commitments 1

in writing in its LTP and Final Site Survey Plan [FSSP] yet not be subject to question as to the appropriateness of the commitments, there would be no basis for enforcing any standards at License Termination. Such an approach would allow YAEC to make l whatever claims it likes about how " clean" and free of radioactivity the site will be, yet, in i

the end, the NRC would not be able to demand that the site be cleaned up to such a level because the commitment was only " voluntary" and not " required" in the regulations.

l Plainly, such a result cannot be permitted. Once a licensee makes a commitment in the LTP and FSSP to meet a particular level of contamination at or below the levels in  ;

i guidance, policy or regulations, the NRC has the responsibility (and must have the )

authority) to criticize and change such a level of contamination or hold the licensee to it.

YAEC also poses a difficult problem for the Panel (and the NRC) in warning I

. l (OMR at 6, n. 4) that, as the LTP has yet to be approved, "there is no limitation on the l amendments that Yankee might make to it." M Such a threat jeopardizes the entire -

l process. What value can this Panel's adjudication have to a resolution of the matter if the i

licensee is free to amend away orders the Panel chooses to issue with respect to the dealing with the extent and quality of final clean-up at a particular site?

l

i r 6 ,

i 1 l adequacy of the LTP and FSSP standards?

l One solution to the problems is to deny YAEC's OMR.

i

4. NECNP did not attempt to substitute a defined individual for an average member of the critical group.

l l

YAEC raised this issue. OMR at 7-10. NECNP contends that the Panel did 1

misinterpret the Contention as submitted insofar as NECNP was attempting to suggest that the NRC's staffs application of the regulations had failed to include exposures to children and women in arriving at the exposure to the average member of the critical group. NECNP believes that a rereading of the contention, which YAEC cites in the OMR at 9, n. 9, makes plain that the intention was not to ask the Panel to change a regulation, rather the intention was to ask the Panel to apply the regulation, purportedly based upon ICRP-60, in a manner consistent with the doses of which ICRP-60 takes account (i.e., those to children, women and men in the critical population). Taking account in this way would merely require a recalculation of the " average" or reference person to include non-worst-case-scenario doses that would be received by an average member of the critical population (i.e., one comprised of children, women, and men). '

• It is important to bear in mind that it is childre'n - one portion of any reasonable calculation of an

" average" of members in the critical population - who are most susceptible to radiation damage due to their extremely high metabolic processes. Radiobiology has long remgnimi that the

"[d]uration of survival of an irradiated cell is inversely proportional to its activity after irradiation." Z. M. BACQ AND P. ALEXANDER, FUNDAMENTALS OF RAD 0 BIOLOGY (2d rev.

edition 1961) at 3 (quoting Vintemberger, P., Arch Anat., Strasbourg, 1930-31, 12, 299-464).

Therefore, developing organisms are more sensitive to radiation than mature ones. Moreover, failing to account for doses to children when calculating exposures to the average member of the

critical group is patently absurd and discrinunatory, as NECNP argued in its Contentions. Under I NRC staff application and interpretation of regulations and guidance, the average reference man in the critical group will be more protected than his family. His average wife will less protected, particularly during childbearing and lactating; hence, more likely to develop cancer or other diseases due to ionizing radiation. Unfortunately for reference couple, the average child will least

7 Perhaps what NECNP has missed here is that only childless people will ever occupy the t

Yankee Rowe site, so that inclusion of childbearing and lactating women and their offspring as part of the average members of the critical group is reasonable? NECNP l

thinks that is not the case, nor did the rulemaking consider it so. Hence, if the sit <. is to be released to the general public under the LTP and FSSP, a reasonable calculation of doses to the critical population should be based upon ICRP-60 doses to women and children, as well as men, in arriving at doses to a reference average member of the critical population.

In this regard, NECNP asks that, should the Panel choose to reconsider Contention 4, that it reconsider its findings on this issue, and require that the NRC staff and YAEC take account of average doses to women and children (as well as men) when calculating doses to the average member of the critical group. In the alternative, if the Panel is not inclined to grant this relief, NECNP would ask that the Panel deny YAEC's O M R.

5. NECNP and CAN never posed an individust suffering more than average exposure; NECNP and CAN posed using a scenario for the average member of the critical population which accounts for families with children spending more time outdoors than YAEC and the NRC staff take into account.

YAEC's attempts to calculate the amount of time persons spend out of doors fails to take account of NUREG 1500 as cited by NECNP in its Contentions. Contentions at 6-

7. .YAEC's own attempts to calculate these should be given no weight in a motion to l reconsider the admission ~of the Contention, particularly as YAEC offers no expert reason or reference for rejecting the information NECNP cited from NUREG 1500 in its Contentions under review ofits e.4,ert. People who garden spend more than 1% of their protected, and most likely to develop cancer or other diseases due to ionizing radiation.

I i

g, 8

l time doing so, and more than 20% of their time out doors. The scenario YAEC uses in L

the LTP may be reasonable for window-box gardeners and joggers in the city. It does not apply to potential site occupants who will. like so many New Englanders, try to get all of I

their vegetables from the " patch" they began cultivating in April. Evidence at hearing will provide the basis for a reasonable " gardening" scenario. The number to be disproved it the one YAEC relies upon in the LTP to arrive at projected doses.

Hence, the Panel should deny YAEC's OMR insofar as YAEC has not, in this regard, raised an issue of fact or law upon which the Panel's Cecision must be altered.

j Conclusion For the reasons aniculated above, NECNP asks that the Panel either deny YAEC's l OMR outright or reconsider and modify Contention 4 only in the ways suggested hereinabove.

Respectfully submitted:

NEW ENGLAND COALITION ON NUCLEAR POLLUTION BY: A l Jonathan M. Block, Attorney for New/ England Coalition on Nuclear Pollution l Dated: April 9,1999 cc: Service list

(

E

UNITED STATES OF AMERICA 00CdIED UF H R L, NUCLEAR REGULATORY COMMISSION Before the l ATOMIC SAFETY AND LICENSING BOARD  ?) APR 13 P3 :20 l

Administrative Judges: ,, _

Charles Bechhoefer, Chariman

'"{; ,

Dr. Thomas S. Ellman ADJU: a Thomas D. Murphy In the Matter of Docket No. 50-029-LA YANKEE ATOMIC ELECTRIC COMPANY ASLBP No. '9-754-01-LA-R (Yankee Nuclear Power Station)

License Termination Plan Served: January 2,1999 CERTIFICATE OF SERVICE FOR NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S OPPOSITION TO MOTION TO RECONSIDER l I, Jonathan M. Block, counsel for New England Coalition on Nuclear Pollution, Inc., l certify, under penalty of perjury, that on this 9th day of April,1999, copies of the above titled I document were served upon the parties below by faxing and mailing them U.S. Postal Service, Express Mail, postage pre-paid (except for panies and others denoted by '*' who were served First Class mail) -

i i

Original and two cooies to: One coov to:

Rulemakings and Adjudications Staff Office ofCommission Appellate Adjudication )

(Mail Stop 0-16-Cl) (Mail Stop 0-16-C1)

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1 White Flint North 1 White Flint North

! 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852 2738 FAX (301) 415-1672 FAX (301)-415-1672

(

One conv to: One caov to:

l Thomas G. Digne, Jr., Esq. Deborah B. Katz, President *

. Ropes & Gray Citizens Awareness Network,Inc.

_ One International Place P.O. Box 3023 Boston, MA 02110-2624 Charlemont, MA 01339-3023 FAX (617) 951-7050 FAX (413)339-8768

~

. l 1

Docket no. 50-029-L4 Page 2 CERTIFICA TE OFSERV1CE FOR NECNP.. .

i One copy each to: One cocy to:

Atomic Safety and Licensing Board Thomas S. Elleman, Administrative Judge,*

Charles Bechhoefer, Chairman, and Atomic Safety and Licensing Board Thomas Murphy, Administrative Judge 704 Davidson Street j (Mail Stop T-3 F23)- Raleigh, NC 27609 '

U.S. Nuclear Regulatory Commission 919-782-7975 2 White Flint North 11545 Rockville Pike Diane Curran *  !

Rockville, MD 20852-2738 Harmon, Curran, Spielberg & Eisenberg Tel. (301) 415-5599 1726 M Street, NW, Suite 600  ;

Washington, D.C. 20036 '

James L. Perkins, President

• Samuel Lovejoy New England Coalition on Nuclear Pollution Franklin Regional Council of Governments i P.O. Box 545 425 Main Street  :

Brattleboro , VT 05302 Greenfield, MA 01301 Tel. (413) 774-3169 Ann P. Hodgdon, Esq. and Marian L. Zobler, Esq.

Office of General Counsel Mail Stop 0-15-B18 ,

United States Nuclear Regulatory Commission j 1 White Flint North I 11555 Rockville Pike Rockville, MD 20852-2738 Tel. (301) 415-1672 _

athan M. Block, Counsel for NECNP The followina nerson was served the above referenced materials as a courtesv:

David Rothstein*

U.S. EPA Pre gion I Suite 1100-RCA 1 Congress Street Boston, MA 02114-2023 April 9,1999 2