ML20141M598

Prehearing Conference Order (Terminating Proceeding).* Petition for Leave to Intervene & Request for Prior Hearing of Petitioner, ,denied & Proceeding Terminated. W/Certificate of Svc.Served on 920821

ML20141M598
Person / Time
Site:	Rancho Seco
Issue date:	08/20/1992
From:	Bechhoefer C, Cole R, Murphy T Atomic Safety and Licensing Board Panel
To:	ENVIRONMENTAL & RESOURCES CONSERVATION ORGANIZATION
References
CON-#392-13188 92-663-02-DCOM, 92-663-2-DCOM, DCOM, LBP-92-23, NUDOCS 9209030054
Download: ML20141M598 (38)

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LBP-92-23!mC. i 31 ut:du n UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judgest Charles Bechhoefer, Chairman Dr.. Richard F. Cole Thomas D. Murphy In the Matter of Docket No. 50-312-DCOM SACRAMENTO MUNICIPAL (Decommissioning Plan)

UTILITY DISTRICT (Rancho Seco Nuclear ASLBP No. 92-663-02-DCOM Generating Station, Facility Operating License No. DPR-54) August 20, 1992 PREHEARING-CONFERENCE ORDER (Terminatina Proceedinal This proceeding involves consideration of a proposed-order approving a decommissioning plan for, and-authorizing decommissioning of, the Rancho-Seco Nuclear Generating Station (hereinaf ter, Rancho Seco) ,-- -located near Sacramento, California.- For reasons set forth below, the single

-petition for leave to intervene and request for a hearing that has been filed is deficient in failing to: establish the standing of the petitioner to participate (either as a matter of right or of discretion) or the adequacy of any 9209030054 920820 - 'M PDR- ADOCK 05000312

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4 proposed-contention. Accordingly, we are denying the intervention petition and terminating the proceeding.

I. BACKGROUND A public referendum on June 6, 1989, required the Sacramento Municipal Utility District (hereinafter SMUD or- ,

Licensee) to discontinue operation of Rancho Seco. As a result, SMUD decided to shut down the facility, and it has taken a multi-stage approach to reach this result.

On June 7, 1989 (the day following the public vote),

SMUD discontinued producing power from the facility.1 i Reactor defueling was completed on December 8, 1989.2 On April 26, 1990, the Licensee continued its scale-down activities by applying to convert the operating license into l a possession-only license-(POL) that would authorize only --

1 the "use and possession" of-the facility, not its operation.

Following an adjudicatory proceeding during which the  !

pet'itioner now before us sought unsuccessfully to-intervene, that application was approved by the Commicsion on March 17, 1992.3 l

1 Sacramento Municipal 1 Utility District, Rancho Seco l Nuclear Generating Station, Proposed Decommissioning Plan (DP), p. 1-27; see also 57 Fed.1 Reg._9577 (March 19, 1992).

2 1d.

3 Amendment 117 to Facility Operating License No.

(continued...) .

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i The final stage involves a proposed decommissioning i

plan, leading eventually to termination of the operating l license and release of the site for unrestricted use. See 10 C.F.R. S 50.82. On May 20, 1991, the Licensee filed its l l application for termination of its license, including a proposed decommissioning plan.4 In general, the plan 4

provides for 10 to 20 years of onsite storage (SAFSTOR) followed by the removal of residual radioactivity.5 On October 21, 1991, SMUD filed a supplement-to its

' Environmental Report, concerning the impacts of the method 4

of decommissioning it had selected. The NRC Staff began reviewing the application and, on March 12, 1992, requested additional information from the Licensee on both the decommissioning plan and the environmental report. (The

. Licensco responded on April 15, 1992.)

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3(... continued)

DPR-54, 57 Fed. Reg. 10,193 (March 24, 1992). The effective date of this amendment was made subject to two stays of 10 working days each, leading to an April 24, 1992 effective date for the POL. See, generally, Sacramento Municinal Utility District (Rancho Seco Nuclear Generating Station, l Possession-Only License), CLI-92-2, 35 NRC 47 (Feb. 6, 1992).

4 SECY-92-150, " Quarterly Report on the Status of Prematurely Shut Down Plants," at 4 (furnished to Licensing Board and hearing participants by Memorandum from Chief, Docketing and Services Branch, Office of the Secretary, NRC, dated April 28, 1992).

5 57 Fed. Reg. 9577 (March 19, 1992). See also DP,

p. 1-1.

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1 On March 19, 1992, the NRC published a Notice of Opportunity for Hearing with respect to both the i decommissioning plan and the environmental report.6 One timely request for a hearing and petition for leave to intervene was filed, by the Environmental and Resources j Conservation Organization (hereinafter, ECO), on April 20, 1992. As noted oarlier, ECO had sought unsuccessfully to

, participate in the POL proceeding. On May 13, 1992, the Commission established this Licensing Board to consider the petition and preside over a hearing if one were ordered.7 2

SMUD and the NRC Staff each opposed ECO's hearing request and intervention petition.8 Because a petitioner for intervention is permitted by 10 C.F.R. 5 2.714(a)(3) to

< amend its petition without leave of the Board until 15 days prior to the first prehearing conference, the Board, by i

Memorandum and Order dated May 15, 1992, set schedules for the filing of an amendedLpetition, including contentions, receipt of responses, and a prehearing conference.

ECO filed a timely amendment /sup91ement to its petition

on June 29, 1992. On July 8 and 10, 1992, the Licensee and Staff, respectively, filed responses in opposition to the amended petition. The Board conducted a prehearing 6

57 Fed. Reg. 9577.

7

57 Fad. Reg. 21,433 (May 20, 1992).

8 Licensee's Answer, dated May 5, 1992; NRC Staff Response, dated May 11, 1992.

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4 conference in Bethesda, Maryland, on July 14, 1992, at which representatives of ECO, SMUD and the Gtaff appeared.9

< Following the prehearing conference, on July 17, 1992, ECO filed two motions: (1) a Motion for an Order to Compel

! Service, and (2) a Contingent Motion to Withhold any order Wholly Denying the Petition for Leave to Intervene and/or the Request for a Hearing. The Licensee opposed both of these motions and filed cross-motions to strike certain portions of each motion; the Staff opposed the second motion but took no position on the first.10 (The Stcff supported

! the Licensee's motions to tirike.ll) Thereafter, on

. August 14, 1992, ECO filed two more motions: (1) ECO's Motion to Strike, and (2) its Anticipatory Motion for Leave i

to File ECO Pleading (seeking leave to file the foregoing Motion to Strike). We treat these motions later in this

Opinion.

9 See Tr. 1-180. The conference had been announced by a

, Notice of Prehearing Conference, dated June 23, 1992, i

published at 57 Fed. Reg. 29,339 (July 1,-1992),

s 10 Licensee's Answer in Opposition to Petitioner's j Motion for an Order to Compel Service and Licensee's Motion to Strike Portions Thereof, dated July 27, 1992; Licensee's Answer in Opposition to Petitioner's Contingent Motion to

Withhold Any Order Wholly Denying the Petition for Leave to Intervene and/or the Request for a Hearing and Licensee's Motion to Strike Portions.Thereof, dated July 27, 1992; 'NRC Staff Response '3 Opposition to ECO's Contingent Motion to Withhold Any Ord.r Wholly Denying Its Petition for Leave to Intervene, dated August 6, 1992.

11 NRC Staff Response in Support of Licensee's Motions to Strike Improper Argument in Environmental and Resources Conservation Organization's Filings, dated August 17, 1992.

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l II. STANDING j To participate as a party in an NRC adjudicatory proceeding, a petitioner must initially demonstrate both that it has standing and that it has proffered at least one viable contention. 10 C.F.R. S 2.714(a) and (b). Turning first to standing, the petitioner must demorei ate its interest in the proceeding and the "possible scisct of any order that may be entered * *

• on (its) interest."

10 C.F.R. SS 2.714 (a) (2) and (d) (1) (iii) .

To determine whether a petitioner has adequately demonstrated its standing, the Commission applies contemporaneous judicial concepts of standing. Metrooolitan Edison Co. (Three Mile is..and Nuclear Power Station, Unit 1), CLI-83-25, 18 NRC 327, 332 (1983). Those standards-involve a two-pronged test: (1) the petitioner must demonstrate that it has suffered or will likely suffer

" injury in fact" from the action under review, an injury that would be redressable by a favorable decision in the proceeding, and (2) the injury must fall within the " zone of interests" at least arguably sought to be protected by the statute being enforced--here, either the: Atomic Energy Act-a or the National Tnvironmental Policy Act (NEPA). Three Mile Island, suora, CLI-85-2, 21_NRC 282, 316 (1985); Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 4

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and 2), CLI-76-27, 4 NRC 610, 613-14 (1976); ngg Air Courier Conference of America v._American Postal Workers Union.

AFL-CIO, 498 U.S. __, __, 112 L.Ed. 2d 1125, 1134 (1991);

Dellums v. NRC, 863 F.2d 968, 971 (D.C. Cir. 1988).

j An organization such as ECO may gain standing in two ways. First, it may demonstrate standing in its own right, assuming one of its own interests has been or may he adversely affected. However, if such interest is informational, such as the failure to receive information appearing in an environmental impact statement, explicit environmental harm with a direct impact upon the petitioner must also be alleged. A generalized claim of informational injury is not enough. SMUD (POL), CLI-92-2, sutra, 35 NRC at 57-60; Foundation on Economic Trends _v.__Lvna, 943 F.2d 79, 84 (D.C.Cir. 1991); see also Luian v. National Wildlife l Federation, 497 U.S. 871, , 111 L.Ed.2d 695, 712-13 (1990).

Second, an organization may gain standing as a representative of one or more of its members, assuming that t

i such members otherwise have standing, the interests it seeks to protect are germane to the organization's purposes, and neither the claim asserted nor the relief requested require the individual member's participation in the lawsuit. Hunt

v. Washincton State Acole Advertisina Comm'n, 432 U.S. 333, 343 (1977). The members must normally provide affidavits authorizing the organization to represent their interests.

+4 8-Houston Lichtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 393-97 (1979).

At the outset, we note that both the Licensee and the Staff assert that ECO should be estopped from asserting its standing claims in this proceeding because of their similarity or, indeed, identity with claims unsuccessfully asserted as a basis for standing in the POL proceeding. The NRC may, of course, apply colle.teral estoppel principles where appropriate. See, e,q., Alabama Power Co. (Joseph M.

Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, .

remanded on other arounds, CLI-74-12, 7 AEC 203 (1974).

Collateral estoppel is an equitable doctrine, not required as a matter of law, that should be applied only l

"with a sensitive regard for any supported assertion of changed circumstances or the possible existence of some public interest factors in the particular case * * *."

Farlev, CLI-74-12, suora, 7 AEC at 203-04; ALAB-182, supra, 7 AEC at 216. For collateral estoppel to apply, there must be an_ identity of issues--here, the issue of ECO's-standing.

Farley, ALAB-182, gupra, 7 AEC at 213.

! Despite the similarity of ECO's standing assertions in the POL proceeding and this proceeding, the scope of this decommissioning proceeding appears to be sufficiently different from the POL proceeding to at least raise questions as to whether changed circumstances may be

present. Among other matters, the health and safety and environmental effects of the two proceedings do not appear identical.

The Licensee and Staff have not addressed these apparent differences or shown that they would not affect ECO's standing status in this proceeding. In addition, we perceive some public interest considerations in affording ECO a full opportunity of convincing this Board of its standing. (We, of course, do recognize various prior rulings of the Commission for their precedential value.) We conclude that the Licensee and Staff have not made a sufficient showing on the identity of the standing issues in the two proceedings for collateral estoppel to apply, and we decline to bar ECO's standing claims on that basis.

A. Iniury in fact. In determining whether injury in fact has been adequately set forth, we are limited to assertions actually pleaded by the petitioner. Egg Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, Unit No. 1), LBP-92-4, 35 NRC 114 (March 18, 1992).

The petition itself must " set forth with particularity" the elements of standing. 10 C.F.R. S 2.714 (a) (2) . We are thus not permitted to assume or presume the existence of facts not actually pleaded. Egg Atizona Public Service Co.

(Palo Verde Nuclear Generating Station, Units 1, 2, and 3),

CLI-91-12, 34 NRC 149, 155-56 (1991).

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ECO's claims for having stanning are set forth in both I its April 20, 1992 petition and its June 29, 1992 i

supplement. The latter document additionally sets forth l

contentions, to which we will refer to the extent relevant t

, to the standing claims.

}

Although not a model of clarity, ECO has put forward i several discrete bases for its standing. Specifically, it 4

i sets forth (1) claimed injuries to itself as an

! organization, and (2) claimed injuries of certain specified i

members whom it represents.12 We turn to each of these

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1. ECO first asserts-that it_(as.well~as its members) will be adversely affected if-an environmental impact

statement (EIS) for the proposed decommissioning is not ,

t- prepared. With respect to its organizational interests,-ECO i

initially stated that i ECO strongly supports the-use of nuclear plants to j provide the safe,and domestically. secure electricity-

. needed in this' country. This mission necessarily-

! includes intervening in the present matter where the

i. destruction of a state-of-the-art nuclear reactor is j sought in order to inform decisionmakers and the public?

, of the consummate-folly-of-decommissioning Rancho-l Seco.13 l -ECO goes on to state that~the NRC-Staff's-failure to

. . indicate that it will prepare an EISfon the decommissioning i

i 12 April f 20, 1992 Petition, at 4;-June 29, 1992 Supplement, _at 2-10.

13 April 20, 1992 Petition,-at.19.

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4 deprives ECO of its ability to comment directly on the environmental report prepared by.SMUD and on a draft EIS prepared by the Staff, to advise its members of the

, environmental risks involved with each alternative and to report the findings and recommendations of the environmental evaluations to the public.14 ECO's supplemental petition adds little with respect to organizational standing, except to indicate that the contentions contained therein are examples of the injury suffered by ECO. (An affidavit by the President of ECO is also provided, formalizing in essence ECO's general claims and providing ECO's articles of incorporation, setting forth-the organization's purposes.) Looking at the contentions, the only one bearing on ECO's organizational standing claims is the purported lack of an EIS (including alleged inadequacies in the Licensee's Environmental' Report).

l l It is clear from the precedents cited above that ECO has failed to present an adequate basis for organizational q

standing. The lack of an EIS would_at most affect ECO's j informational interests, but nowhere is there asserted any environmental harm that would affect the organization, other than informationally. That being so, ECO has not satisfied the in'formational harm criteria sanctioned by recent court j decisions and set forth by the Commission--with respect to 14 1d1, at 19-20.

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'4 ECO itself--in the POL proceedj.ng. SMUD (POL), CLI-92-2, SuDra, 35 NRC at 57-61. It thus has not established l standing on that basis. Ihqg

2. ECO also seeks standing as the representative of certain of its members. In its initial petition, ECO listed the names of two members who purportedly live within 50 i

miles of the facility. No affidavits authorizing representation by ECO were included.

The only description of how these individuals might be

affected by the proposed decommissioning action was that they "have an interest in whether the proposed order provides reasonable assurance of their radiological health and safety * *

• and whether the decision * *

• is made in accordance with and is consistent with the goals of N EPA . "15 ECO goes on to claim that certain of its members i

(not explicitly the two listed) depend on SMUD to meet their electric energy needs and that ECO has a vital interest in i

ensuring that an adequate and reliable supply of electricity will be available. Nowhere does ECO provide any factual basis for its thesis that radiological-health-and safety.of i

the two listed members would be compromised or that their future supply of electricity would become unreliable. Nor does it show how, as it claims, the absence of Rancho Seco would lead to the substitution of fossil fuel plants that 15 April 20, 1992 Petition, at 18.

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I would contribute not only to acid rain, the greenhouse effect and other effects adverse to the environment but also

., to the endangerment of national energy security.16 In its Supplement, ECO refers only to one of the aforementioned members, identifying him as living 43 miles I from the facility and providing an affidavit authorizing ECO to represent his interests. It relies on the so-called j " presumption of standing which attaches to residency within a 50 mile radius of the plant."17 It also cites portions of the Decommissioning Plan and the Environmental Report which analyze certain effects of the plan extending as much as 50 miles from the facility.18

, As the Commission has explicitly held, the 50-mile presumption of standing applies only in proceedings involving reactor construction permits, operating licenses

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l or significant amendments thereto--cases "with clear f

implications for the offsite environment, or * *

• a clear potential for offsite consequences." Florida Power & Licht Gqt (St. Lucie Nuclear Power Plant, Units-1 and 2),

l 16 ECO makes other claims--likewise unspecific--

concerning the members' interest in electricity at reasonable rates, the likely rise in those rates as a result of decommissioning, and the contribution of decommissioning to the national trade deficit. As set forth later in this-oninion, at p. 16, infra, none of the claims of that sort

.all within the zones of interest arguably sought to be protected by the Atomic Energy Act or NEPA.

i 17 Supplement, at 8. See also oral argument, Tr. 6-8.

18 12., at 10.

t CLI-89-21, 30 NRC 325, 329 (1989). In other situations, a petitioner must allege "some specific

• injury in fact' that will result from the action taken * * * ." Idx, at 330.

As we have seen, ECO has relied primarily upon the so-called presumption. It asserts that decommissioning involves at least as much radioactivity as a construction permit and, thus, that the same presumption should apply.

This reasoning, however, ignores the foundation for the 50-mile presumption--the fact that significant offsite consequences can result from the operation of a facility for which a construction permit is sought. ECO does not even allege that similar offsite radiological or environmental consequences eventuate from decommissioning. As for its second claim, ECO has made no attempt to show how any of the effects cited in the Decommissioning Plan or Environmental Report as extending as much as 50 miles from the facility affect the particular individual.

At the prehearing conference, ECO asserted that the individual whom it represents would also be affected by the radiological-effects of transportation attendant to the decommissioning proposal- "the transportation of spent fuel

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• and high level transuranic and low level waste off site and through the area surrounding the plant where (the individual represented by ECO) lives."19 ECO had not 19 Tr. 8.

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mentioned transportation either in its pleadings or in the affidavit of the affected individual. And it has not spelled out what the radiological impact, if any, would be on the affected individual. Because of this lack of particularity, as well as ECO's failure to mention transportation prior to the prehearing conference, we are not accepting any of ECO's transportation assertions in our consideration of its standing.20 In sum, ECO's unsupported general references to radiological consequences are insufficient to establish a basis for injury. Similarly, as the Commission has made clear in an earlier ruling in another case, the social-type environmental consequences that ECO alleges will come not l from decommissioning but from the prior, unreviewable action of SMUD to discontinue operation of the facility. See LQng Island Lichtina Co. (Shoreham Nuclear Power Station, i Unit 1), CLI-90-8, 32 NRC 201, 207-08 (1990),

l reconsideration denied, CLI-91-2, 33 NRC 61 (1991). That i

being so, ECO has not adequately alleged " injury in fact" to l

its member.to support its claim of representational I

standing.

20 In addition, transportation impacts are not at issue

! in this proceeding. JWe express no view, however, on whether

transportation impacts arising from a decommissioning l

proposal could serve as a basis for standing, irrespective of their litigability in this proceeding.

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• B. Zone of Interests. Not only must a petitioner

allege " injury in fact," but the injury alleged must be

within the zone of interests allegedly sought to be protected by the Atomic Energy Act or NEPA (the only two statutes that govern in the current situation). We need not devote extended discussion to this matter, given our 4

determination that no valid " injury in fact" has been pleaded. However, because of our authority in certain circumstances to permit discretionary standing, we will at least touch briefly on the zone of interests question.

It has long been held that protection of financial interests such as excessive electric rates or higher fuel costs is not within the zone of interests sought to be

protected either by the Atomic Energy Act or NEPA. Portland General Electric Co. (Pebble Springs huclear Plant, Units 1 and 2), ALAB-333, 3 NRC 804, LO6, affirmed, CLI-76-27, 4 NRC 610, 614 (1976); Tennessee Vallev Authority (Watts Bar 4

Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1420-21 (1977). Just recently, the Commission reiterated the same point in its ruling on ECO's attempt to enter the POL proceeding. Rancho Seco (POL), CLI-92-2, suora, 35 NRC at

56. Specifically with respect to NEPA, the Commission observed that, although NEPA does protect some economic interests, it only protects against those injuries resulting from environmental damage. We reiterate again that no such injury is here alleged.

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ECO's very general claims with respect to radiological health and safety may not run afoul of the zone of interests test. But, as set forth earlier, they are so generalized, so lacking in specific detail as to injury in fact, that they cannot serve as a basis for standing.

C. Conclusions as to Standing of Richt. For the reasons set forth above, ECO has failed to present a valid claim of " injury in fact," either organizationally or as a representative of its listed member. Most of its claims also fail to fall within the zone of interests arguably protected by the Atomic Energy Act or NEPA. That being so, we hold that ECO has failed to establish standing of right.

D. Discretionary Standing. ECO next claims that, should we determine that it lacks standing of right, we nevertheless grant it discretionary standing, as authorized by the Commission in Pebble serinas, CLI-76-27, suora, 4 NRC at 614-17. There, the Commission set forth criteria to evaluate whether discretionary intervention should be granted--the most important of which is "[t]he extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record."

The Licensee and Staff each claim that discretionary intervention is not permissible in a situation where, as here, no other petitioner has sought a hearing. In Watts Har, ALAB-413, suora, 5 NRC at 1422, the Appeal Board suggested otherwise, commenting that intervention as a

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4 matter of discretion could trigger a hearing when there was "cause to believe that some discernible public interest will

be served by the hearing." A licensing board recently adopted that viewpoint, although not permitting intervention in the particular situation. Envirocare of Utah. Inc.

, (Byproduct Material Waste Disposal License), LBP-92-8, 35 NRC 167, 182-83 (1992).

j Here, although we tend to favor the. Watts Bar and i

j Envirocare approach, we need not reach the question. For, i

in view of the contentions sought to be litigated by ECO, none of which are acceptable (see discussion infra), we have I

determined that ECO would not reasonably be expected to

! assist in building a sound record on which the Commission l may base its decision in this proceeding. We thus are

declining to grant discretionary standing.

.l i III. CONTENTIONS To be admitted as a party, ECO must not only establish its standing but also proffer at least one valid contention.

Although we would not routinely consider the validity of 5 contentions where standing has not been found, we are doing so here in light of ECO's request for us to grant discretionary standing.

ECO's proposed contentions are not clearly labelled as such. At the prehearing conference, ECO attempted to include as contentions material from its initial petition 4

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4 (not there designated as contentions) as well as material from its June 29, 1992 supplement.21 Because of our direction that contentions be filed in the supplement, we ruled that only information appearing in the supplement would be considered as contentions.22 We therefore turn

to Parts III and IV of ECO's supplement, which contain, respectively, ECO's environmental and safety-based contentions.

A. General Criteria for Contentions. Before dealing l

with specific contentions, we here review the standards for admissibility of contentions. The applicable rules, 10 C.F.R. SS 2.714 (b) and (d), were amended in 1989 "to raise the threshold for the admission of contentions." 54 Fed.

Reg. 33168 (1989).

l In short, they now require, inter alia, that there be a specific statement of law or fact to be raised or l

l controverted, a brief explanation of the bases of the contention, a concise statement of the " facts or expert opinion" which support the contention, together with references to specific sources and documents of which the petitioner is aware and upon which the petitioner intends to l

j rely, and sufficient information to show that a genuine l dispute exists with the applicant (or licensee) on a 21 Tr. 109, 22 Tr. 112.

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material issue. On NEPA issues, the contentions are to be based on the applicant's or licensee's environmental report.

- Purther, the contention must be of consequence in th(

proceeding and, if proved, entitle the petitioner to relief of some sort.

B. Environmental contention. In Part III of its Supplement, ECO presents what it describes as a single environmental contention, which is divided into several 4

subparts.23 Its general thrust is that "SMUD's J

environmental report is inadequate."24 At least two

reasons are assigned--first, that the NRC's Generic j Environmental Impact Statement on Decommissioning of Nuclear Facilities (NUREG-0586) (hereinafter, GEIS) provides inadequate consideration of decommissioning of Rancho Seco under NEPA, and second, that SMUD's October 21, 1991 Supplement to its Environmental Report is " totally inadequate."

As background to this contention, ECO lists what it a

characterizes as the various " mandatory" requirements for environmental reports, as set forth in 10 C.F.R. S 51.45.

It then goes on to particularize what it describes as additional requirements for an environmental report for decommissioning. ECO then asserts that NEPA requires the 23 Supplement, at pp. 16-28; Tr. 114.

24 Supplement, at p. 16.

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,I consideration of " cumulative impacts," which it goes on to I

define as including "past" actions, regardless of what person undertakes such action. It next sets forth what it deems NEPA to require by way of defining " Major Federal action" and "significantly affecting the quality of the human environment." Finally, it describes requirements for the consideration of alternatives, including the "no action" alternative.

i As its first specific claim, ECO asserts that NUREG-0586 orovides "inadequats consideration" of the decommissioning of Rancho seco. It lists several reasons:

i.e., that its purpose was to assist NRC in developing policies and amended regulations dealing with decommissioning, that it was never intended to deal with decommissioning of a facility that had not reached the end of its useful life by age or accident, and that it provides inadequate treatment of radiological impacts and virtually l no treatment of non-radiological impacts.

i

-ECO then goes on specifically to describe several l

l alleged omissions from the Environmental Report. Most specifically, ECO scores the report for omitting any j meaningful discussion of alternatives, either the "no j action" alternative or the alternative of resumed operation, l

l and for failing to include a cost-benefit balance. ECO explicitly states that

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• the availability of the option of selling SKUD (sic; should be Rancho Seco) to a responsible entity

for operation rather than decommissioning is a

! significant distinction between-this case and the Shoreham situation where there was an agreement.to l

decommission.25

! Finally, ECO faults the Environmental Report on the

!- basis of the Staff's March 12, 1992 questions.- It attempts i

to incorporate those questions by reference, contending

without further explanation that "each one" represents a i

deficiency in the Report.

l The Licensee and Staff assert that this environmental contention involves matters previously designated by the Commission as unnecessary for the environmental review of decommissioning, such as need for power or-the environmental effects of replacement power. Moreover, they declare that j the numerous vague and unsupported allegations in the environmental-contention ~ fail to meet the rather stringent pleading requirements that.the commission adopted in 1989, because they include no facts that would establish a material issue of fact.or law.

With respect to issues of--law, the Licensee and Staff

- assert that the' major thrust of ECO's environmental claims--

that the effects of-ceasing operations are cumulative;

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effects that must be analyzed in=an EIS--has been rejected 4

by the-Commission with respect to decommissioning. Further, they contend that ECO's challenge to the use made by the 25 Supplement, p. 27.

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1 Licensee of the GEIS fails to acknowledge the Commission's directions with respect to the GEIS.26 In reviewing ECO's environmental assertions, it is clear that ECO misperceives the character of the environmental review established by the Commission for a decommissioning case such as this. The Commission views the environmental review as a supplement to that which already occurred during the operating license phase of the proceeding. Thus, a licensee's environmental report for decommissioning need only " reflect any new information or significant environmental change associated with the

[ licensee's) proposed decommissioning activities or with the

[ licensee's] proposed activities with respect to the planned i

storage of spent fuel." 10 C.F.R. S 51.53(b).

Beyond that, the commission has concluded that, in the usual case, the environmental impact of decommissioning can i be delineated in generic terms through reference to the GEIS. To the extent that the impacts from decommissioning a particular plant are significantly different from the generic impacts, those impacts may be covered in a supplemental EIS. Thus, in promulgating decommissioning regulations in 1988, the Commission stated with respect to the GEIS:

26 See p. 23, infra.

The Commission's primary reason for eliminating a mandatory EIS for decommissioning is that the impacts have been considered generically in a GEIS. The Commission determined that examination of these impacts and their cumulative effect on the environment and their integration into the waste disposal process could best be examined generically. A final, updated GEIS has been issued * * *. The GEIS shows that the difference in impacts among the basic alternatives for decommissioning is small, whatever alternative is chosen, in comparison with the impact accepted from 40 years of licensed operation. The relative impacts are expected to be similar from plant to plant, so that a site-specific EIS would result in the same conclusions as the GEIS with regard to methods of decommissioning.

Although some commenters correctly point out that an EA is much less detailed in its assessment of impacts than an EIS, if the impacts for a particular plant are significantly different from those studied generically because of site-specific considerations, the

environmental assessment would discover those and lay the foundation for the preparation of an EIS. If the impacts for a particular plant are not significantly different a Finding of No Significant Impact would be prepared. 7 With this in mind, it is not difficult to perceive why a separate EIS for decommissioning a particular facility is rarely, if ever, necessary. Egg Shoreham, CLI-91-2, suora, 33 NRC at 74; id., CLI-90-8, suora, 32 NRC at 209.

To repeat, no NRC approval is required for a licensee 5 to cease operation. Shoreham, CLI-90-8, suora, 32 NRC at 207. That decision is SMUD's to make and does not represent Federal action of any kind. Therefore, no EIS need be prepared for that action. Moreover, the impacts that ECO now seeks to have discussed relate only to the cessation of operations--they are not impacts of decommissioning.

27 53 Fed. Reg. 24,018, 24,039 (1988).

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Shoreham, CLI-91-2, supra, 33 NRC at 71. That being so, they are not pertinent to the environmental effects of 4 decommissioning--with which ECO has not taken issue or raised any environmental question.

Resumed operation would be an alternative only to the t

cessation of operation, not to decommissioning (as to which the Commission has stated that only alternative forms of decommissicaing, together with "no action," are all that need be discussed.) Shoreham, CLI-90-8, suora, 32 NRC at 208. As pointed out by the Licensee,28 this is consistent with cases holding that, under NEPA, an agency need consider only alternatives that lead to the objective of a proposal.

Egg City of Ancoon v. Hodel, 803 F.2d 1016, 1020-22 (9th

, Cir. 1986) (per curiam), satt . denied, 484 U.S. 870 (1987);

Citizens Acainst Burlinato'i. Inc. v. Busev, 938 F.2d 190, 195 (D.C.Cir.), cert. dented, U.S. , 116 L.Ed. 2d 638, 112 S. Ct. 616 (1991). Resumed operations thus need not be considered in conjunction with tha proposed decommissioning action that is before us.

Failure to prepare an EIS may be an issue raised in certain proceedings. But where, as here, the action is

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allegedly deficient for failing to include matters that the Commission has already ruled are outside the scope of consideration of a proceeding such as this, we decline to 28 Licensee's July 8, 1992 Answer, at 10.

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d consider a contention to that effect. Further, where the Licensee has filed an Environmental Report that on its face attempts to supplement the GEIS with site-specific information sufficient to provide the Commission with information to determine whether a supplemental EIS may be necessary, we will not entertain an unsupported generalized claim that the Commission is placing undue reliance on the GEIS in its assessment of the impacts of decommissioning the 1'

particular facility.

J Finally, ECO's attempt to incorporate by reference the questions asked by the Staff concerning the Environmental Report fails to comply with the Commission's pleading requirements. Louisiana Energy Services. L.P., (Claiborne j Enrichment Center), LDP-91-41, 34 NRC 332, 346, 357-58 (1991). ECO does not describe the significance of the matters to which the questions are addressed or why, indeed, they might constitute a defect in the Environmental Report.

J Even under the Commission's earlier rules, they would not have been pleaded sufficiently. T;npessee Vallev Authority 1

(Browns Ferry Nuclear ~ Plant, Units 1 and 2), LBP-76-10, 3 NRC 209, 216 (1976); see also, Gulf States Utilities Cot (River Bond Station, Units 1 and 2), ALAB-444, 6 NRC l

760,768-78 (1977).

/ ECO's environmental contention is accordingly rejected.

C. Safety Contentions. ECO includes six safety-related contentions in part IV of its Supplement (designated

.-_ _ - __ _ . _ ._. . . _ ~ , . ~ , . -

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2 contentions IV.A-IV.F). The Licensee and Staff deem each of them to be legally or factually incorrect and to be inadequately pleaded under the commission's contention requirements.

Contention IV.A asserts that the decommissioning plan is premised upon, inter alia, the availability of Hardened-SAFSTOR to be implemented after the fuel has been moved to dry storage in an Independent Spent Fuel Storage Installation (ISFSI). ECO claims, however, that "SMUD has f

terminated its application for the ISFSI thereby invalidating a large part of the decommissioning plan."

, ECO provided no basis for this claim, thereby invalidating the contention on pleading grounds. But when asked for its source at oral argument, ECO identified a

[ letter from SMUD to the Staff, dated March 20, 1992, which requests the Staff to " terminate" certain aspects of its

! review pending selection by SMUD of an approprjate storage cask. (The Licensee previously provided the Board and ECO with a copy of that letter, appended to its July 8, 1992 filing.)

At oral argument, the Licensee conceded that the wording of the letter might have been more felicitous, using

" suspend" rather than " terminate," but it claimed that the

" application" had not been abandoned. Only the safety review had been suspended, pending selection of a cask;-the I

environmental review is continuing. The Staff-agreed'that l

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this was the case and the ISFSI application remains active.29 That being so, Contention IV.A must be rejected.

Contention IV.B claims that SMUD lacks an adequate funding plan for the decommissioning. Such a plan is required by 10 C.F.R. S 50.75. The reason alleged by ECO for the deficiency is the Staff's revocation of an exemption it had previously granted SMUD, permitting funding over the course of the original operating license (i.e., until 2008) rather than at time of shutdown.

The Staff granted the exemption without receiving public comments. Because the Staff had earlier promised ECO that it would be permitted to comment, the Staff then revoked the exemption and has received comments from ECO (which it has not yet finished evaluating).

Even though ECO may be technically correct about the current funding plan, we fail to see how this establishes a material factual or legal dispute. If the Staff should grant the exemption, it will remedy the defect. (The granting of such an exemption would be consistent with a newly revised version of 10 C.F.R. S 50.75.) If the Staff should deny the exemption, it will have to take steps to ensure that SMUD provides adequate funding for the decommissioning. Indeed, the crux of ECO's concern, that 29 Tr. 96-97.

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its views on the exemption be taken into account, has been fulfilled 30 We thus decline to entertain ECO's contention on this subject.

Contention IV.C challenges the adequacy of the Federal Register notice for this proceeding, claiming that it failed to identify any relevant documents other than the Decommissioning Plan and the Environmental Report. ECO contends that adequate notice demands identification of all supplements and amendments to that application.

There is no such requirement. Potential intervenors reasonably are expected to research these documents in the Commission's Public Document Rooms, where supplements and amendments would be available. In any event, at the time of the Notice, there were no supplements or amendments. This contention is thus rejected.

Contention IV.D asserts that the decommissioning order may not be issued prior to the completion of an adjudicatory hearing. ECO cites the introductory phrase of S 191.a-of the Atomic Energy Act, 42 U.S.C. S 2241(a). That phrase, however, only authorizes the Commission to use a three-member Licensing Board, such as this one, to conduct a formal on-the-record adjudication,.in lieu of a single

, Administrative Law Judge as required by the Administrative Procedure Act.

30 57 Fed. Reg. 20,718'(May 14, 1992); Tr. 139-43, 162.

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I ECO has, in fact, been afforded the occortunity for a public adjudicatory proceeding. As the Licensee observes, whether a hearing on a licensing action will be a pre-effectiveness hearing is not within the province of this Board but, rather, the Commission itself. 10 C.F.R.

SS 50.58(b) (6) , 50.91, 50.92. Moreover, there does not appear to be any requirement in the Atomic Energy Act that would mandate a pre-effectiveness hearing for decommissioning. Egg Lona Island Lichtina Co. (Shoreham-Nuclear Power Station, Unit 1), CLI-92-4, 35 imC 69, 77 (1992).

For these reasons, Contention IV.D is rejected.

Contention IV.E is a procedural claim that, since

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filing its intervention petition, ECO was entitled to be served with all documents filed by SMUD and its attorneys.

ECO cites 10 C.F.R. S 2.712.

That section deals only with the technical aspects of-service of adjudicatory documents and, in any event, requires service only on." parties," which ECO is not.31 The scope of document service _is covered by 10-C.F.R.

S 2.701(b), which also only applies to " parties."

Adjudicatory documents filed by parties responsive to or 31

' ECO, in its Motion-to-Strike filed on August 14, 1992, at n. 1, incorrectly cites 10 C.F.R. S 2.714a as-denominating petitioners as1 parties, presumably for all -

purposes.. All that provision does is. provide a right of appeal to petitioners who are denied intervention or requested hearings. ECO here is given that right.

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bearing upon intervention petitions must, of course, be served upon the petitioner--as was the situation here.

At oral argument, ECO supplemented its request by referencing the Board's general authority as a basis for requiring service upon ECO. If.ECO were to become a party, that remedy would not be necessary. Where, as here, ECO is l

not being admitted as a party, that remedy would be inappropriate, if-not beyond our authority. In any event,

ECO was unable to identify any .ecument with which it had not been served. It mentioned the Licensee's response to Staff questions, a non-adjudicatory locument dated April 15, 1992, but that document was filed prior to ECO's submission l of its April 20, 1992 petition for intervention.32 We are thus denying this contention.

i Somewhat related is ECO's recently filed Motion for an Order ti Compel Service, together with portions of its even more recent Motion to Strike. We have examined those motions and, for similar reasons, are denying them.

Contention IV.F is an attempt to. incorporate by reference questions raised by the Staff in its March-12, 1992 series of questions to the Licensee. No explanation.is provided concerning the significance of any question. ECO merely portrays the questions as a ner se reflection of 32 That document is a non-adjudicatory document that, unless it related directly to a-previously accepted contention, would not have been required to be served.upon a party.

5 w y _ . , , , , .- , . - - - , . . . - . -

4 defects in the decommissioning plan. ECO does not bother to reference the Licensee's extensive April 15, 1992 responses to the questions asked. (Those responses were available before ECO filed its intervention petition and over two months before ECO filed its incorporation-by-reference contentions.)

For the same reasons that we rejected a similarly worded environmental contention, we also reject this attempt to rely on incorporation by reference as a foundation for a contention.

One isolated sentence in the affidavit of the individual whom ECO represents might also be deemed a safety contention. That sentence reads:

However, if the plant cannot be preserved for its intended purpose then it is my opinion that the DECON method of decommissioning is the preferred alternative both because it would best protect the public health and safety by removing the radiological hazard most promptly and it would offer better assurance that the economic costs of decommissioning would be minimized and borne by those persons who received the benefits of Rancho Secc.33 j No data or witnesses (expert or otherwise) are

, identified to support this claim. Although the subject matter could be considered in a proceeding of this type, the claim satisfies none of the pleading requirements necessary to support a contention. For that reason, we decline to consider it.

l 33 June 29, 1992 Supplement, Crespo affidavit, at 4.

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) D. Conclusion on contentions. Dased on the foregoing,

there are no contentions that are admissible. Some concern i

i subject matter that is outside the scope, as properly defined, of the decommissioning matter before us. The j Commission itself has previously ru'ad directly on a number of these items. Nor are any of the contentions in conformity with the cammission's pleading requirements.

That being so, we are rejecting all the contentions both as

]

contentions and as potential support for discretionary standing, based on ECO's ability to assist in developing a sound record.

IV. Ether Matterg

As we pointed out earlier, ECO filed four motions i

following the prehearing conference. We considered and denied the first, dealing with service of documents, in njunction with our consideration of Contention IV.E. See 30-31, agnra. '

Decause of this action, the Licensee's cross-motion for us to strike certain portions of ECO's motion (supported by-the Staff) becomes moot, and we are dismissing it for that a

reason.. (This dismissal also makes moot-the portion of ECO's August 14, 1992 Motion to Strike directed to this cross-motion of the Licensee, which we also dismiss.)

The second motion is denominated as a " Contingent Motion to Withhold Any Order Wholly Denying the Petition for

• I Leave To Intervene and/or The Request for a Hearing."

Anticipating that we might reach the very conclusions we bava described in this order, CCo asks us to forbear and instead issue an order perhitting it to amend its contentions or file new contentions within a reapenable time after SMUD files revisions to its Environmental Report and the Staff issues an Environmental Assessment.

ECO provides several reasons for the relief it seeks, most notably the prospect (not disputed by anyone) that in the future SMUD will supplement its Envi) onmental Report.

ECO also citen its " vested right" to amend its contentions--

a right that ECO already exercised in filing its June 29,

, 1992 supplement.

The so-called " vented right" to amend, to the extent it may properly Lo so described, extends only until 15 days prior to the first prehearing conference. 10 C.F.k.

S 2.714 (a) (3) . Beyond that, it may be exercised only with i

leave of the Licensing Board, based on prescribed factors.

In this case, granting this motion would run counter to the Commission's long-atanding requirement that contentions be submitted prior to the first prehearing conference and that contentions or amended contentions submitted thereafter be considered " late-filed" and judged under the criteria

! applicable to such contentions. Duke Power Co. (Catawba l

Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983).

l

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Leave To Intervene and/or The Request for a Hearing."

Anticipating that we might reach the very conclusions we have descr4, bed in this Order, ECO asks us to forbear and instead issue an order permitting it to amend its contentions or file new contentions within a reasonable time after SMUD files revisions to its Environmental Report and the Staff issues an Environmental Assessment.

ECO provides several reasons for the relief it seeks, most notably the prospect (not disputed by anyone) that in the future SMUD will supplement its Environmental Report.

ECO also cites its " vested right" to amend its contentions--

a right that ECO already exercised in filing its June 29, 1992 supplement.

The so-called " vested right" to amend, to the extent it may properly be so described, extends only until 15 days prior to the first prehearing conference. 10 C.F.R.

S 2.714(a)(3). Beyond that, it may be exercised only with leave of the Licensing Board, based on prescribed factors.

In this case, granting this motion would run counter to the Commission's long-standing requirement that contentions be submitted prior to the first prehearing conference and that contentions or amended contentions submitted thereafter be considered " late-filed" and judged under the criteria applicable to such contentions. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983).

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We are accordingly denying ECO's motion. In view of the position we have taken on ECO's various contentions, we consider the Licensen's cross-motion to strike certain portions of ECO's motion (supported by the Staff) as moot and, accordingly, are dismissing it on that basis.

Simile ' . in view of this dismissal, we also consider the portioiis of ECO's Motion to Strike relating to the Licensee's and Staff's responses to ECO's Contingent Motion to Withhold Decision to be moot and are dismissing itaon that basis.

ECO's third motion, denominated as a Motion to strike, dated August 14, 1992, seeks to have us strike certain portions of the Staff's and Licensee's responses to ECO's prestous motions. (Its fourth motion seeks leave to file the foregoing Motion to Strike.) We are permitting ECO to file the Motion to Strike, even though it consists mainly of a reply to certain of the points raised by the Licensee and Staff in response to ECO's earlier motions. As noted earlier, we have denied or dismissed as moot several aspects of this Motion to Strike. Although we have declined to strike the materials specified, we have taken ECO's reply into account in ruling on those earlier motions.

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V. QRQEB Based on the foregoing, and the entire record of this proceeding, it is, this 20th day of August, 1962 ORDERED:

1. The Petition for Leave to Intervene and Request for Prior Hearing of the Environmental and Resources Conservation Organization (ECO), dated April 20, 1992, is hereby denied.

2. ECO's July 17, 1992 Motion for an order to Compel Service and its July 17, 1992 Contingent Motion to Withhold any Order Wholly Denying the Petition for Leave to Intervene and/or the Request for a Hearing are each hereby denied.

The Licensee's cross-motions to strike certain material from the foregoing motions are each dismissed as moot.

3. ECO's Anticipatory Motion for Leave to File ECO Ple3 ding, datsd August 14, 1992, is hereby cranted. ECO's Motion to Strike, dated August 14, 1992, is hereby denied or dismissed as moot, as set forth earlier in this Opinion.

4. This proceeding is hereby terminated.

5. This Order is subject to appeal to the Commission pursuant to the terms of 10 C.F.R. S 2.714a. Any such appeal must be filed within ten (10) days after service of this Order and must include a notice of appeal and accompanying supporting brief. Any other party may file a

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brief in support of or in opposition to the appeal within  ;

ten (10) days after service of the appeal.

1 THE ATOMIC SAFETY AND i LICENSING BOARD  :

J Charles Bechhoefer, Cl)dirman ADMINISTRATIVE JUDGE.

2 -

Dr. Richard F. Cole ADMINISTRATIVE JUDGE

/ rw ym~

th6 mas D. Murphy- ' V ADMINISTRATIVE JUDGE l -Bethesda, Maryland August 20, 1992 L

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_ _ _ _ _ _ _ .__ _ _._ _ ._. _ ___.___.. _ _ . _ _ . _ _ _ . _ _ _ ~. _

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l 1

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION in the Matter of ,

SACRAMENTO MUNICIPAL UTILITY Docket No.(s) 50-312-DCOM DISTRICT (Rancho Seco Nuclear Generating Station (Decommissioning Plan))

CERTIFICATE OF SERVICE I hereby certify that copies of-the foregoing LB PREH CONF ORDER (LBP-92-23)'

have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Office of Commission- Appellate Administrative Judge Adjudication Charles Bechhoefer, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commissinn i Washington, DC 20555 Administrative Judge Administrative Judge Richard F. Cole Thomas D. Murphy Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Wash jton, DC 20555 Washington, DC 20555 Charles A. Barth, Esq. James P. McGranery, Jr., Esq.

Office of the General Counsel Counsel for Petitioner U.S. Nuclear Regulatory Commission Dow, Lohnes & Albertson Washington, DC 20555 1255 23rd St., N.W., 3uite 500 Washington, DC 20037 Thomas A. Baxter,- Esq.

L David R. Lewis, Esq.

Shaw, Pittman Potts & Trowbridge 2300 N Street, NW, Washington, DC 20037 Dated at Rockville, Md. this #

21 day of August 1992 /-

ibGv- -

i UT fde of the Secretary of the Commission

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