ML20082E126

Petition of NRDC for Leave to Intervene & Request for Hearing Re Effect of Crbr Termination on CP Proceedings. Contentions Listed

ML20082E126
Person / Time
Site:	Clinch River
Issue date:	11/23/1983
From:	Finamore B National Resources Defense Council, SHOREHAM OPPONENTS COALITION
To:	Hand C, Linenberger G, Mark Miller Atomic Safety and Licensing Board Panel
References
NUDOCS 8311280054
Download: ML20082E126 (6)

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DOCKETED USHRC 198' November

'83 NOV 25 23, All :30' UNITED STATES OF AMERICA 0FFICE OF SEGELI4 -

NUCLEAR REGULATORY COMMISSION 00CKETINti a SEfiV!U BRANCH ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Marshall E. Miller, Chairman Gustave A. Linenberger, Jr.

Dr. Cadet H.. Hand, Jr.

)

In the Matter of )

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UNITED STATES DEPARTMENT OF ENERGY )

PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537 TENNESSEE VALLEY AUTHORITY )

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(Clinch River Breeder Reactor Planc) )

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MOTION OF NATURAL RESOURCES DEFENSE COUNCIL, INC. TO INTERVENE

'Ihe Natural Resources Defense Council, Inc. ("NRDC"),

respectfully requests leave to intervene in the Construction Permit proceedings for the Clinch River Breeder Reactor j ("CRBR"). Although the taking of evidence in this proceeding hao been essentially concluded, and although NRDC, an intervenor in this proceeding since 1975, withdrew its remaining Construction Permit contentions in June, 1983, NRDC submits that the recent termination of the CRBR Project constitutes good cause for allowing its intervention to raise the issue of the effect of the CRBR termination upon the CP proceedings. In support of this motion, NRDC submits the following statement.

8311280054 831123 PDR ADOCK 05000537 G PDR

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' I. Interest of NRDC in the Proceeding The Natural Resources Defense Council, Inc. ("NRDC") is a non-profit membership corporation organized undar the laws of the State of New York, with offices in New York, Washington, D.C.,

and San Francisco, California. NRDC has over 33,000 members nationwide and 198 members in the State of Tennessee. NRDC is dedicated to the preservation, protection and defense of the environment, its wildlife and natural resources; to the promotion of safe energy sources rather than a plutonium economy; and to the prevention of nuclear weapon proliferation throughout the world.

Members of NRDC reside in Tennessee, in the Oak Ridge vicinity and in proximity to the Clinch River. The quality of the water, the air and the general environment in this area and in the State of Tennessee directly affect the health, economic, recreational, aesthetic, and environmental interests ,f NRDC's i

members. The interests of NRDC's members have been, are being, and will be adversely affected by Applicants' CRBR site preparation work, the construction _and operation of the CRBR, should it ever occur, and the issuance of a construction permit for the facility.

NRDC was admitted as an intervenor in the CP proceedings in 1975, and was an active participant in these proceedings until June, 1983, when it withdrew its remaining CP contentions because of limited resources. NRDC participated fully in the evidentiary I

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hearings concerning a Limited Work Authorization for the CRBR, and filed an appeal of the Board's February 28, 1983 Partial Initial Decision, which authorized a Limited Work Authorization for the CRBR.1! That Partial Initial Decision was intimately related to the present proceedings, since it resolved all of NRDC's Construction Permit contentions which related to the i sufficiency of the CRBR Final Environmental Impact Statement and Supplement. Before the LWA evidentiary hearings were held, the Board indicated that, although Intervenor's environmental i

contentions would be resolved fully at the LWA stage, their finality would have to await the conclusion of the CP stage, since information received at the CP stage might affect the Board's earlier findings on environmental issues. Transcript of

April 20, 1983 Conference with Counsel at 510-515. The Board agreed that the burden would be on Intervenors to prove significantly changed circumstances requiring alteration of the previous environmental findings. Id.

NRDC's members would be adversely af fected by the Board's decision to issue a construction permit for the facility. When the Applicants originally received permission to initiate site 3/ The appeal of the February 23, 1983 Partial Initial Decision is still pending. On this date, Intervenors Natural Resources Defense Council, Inc. and the Sierra Club, have filed a motion with the CRBR Atomic Safety and Licensing Appeal Board to terminate the appeal proceedings, vacate the Partial Initial Decision, and authorize the Director of Nuclear Reactor Regulation to revoke the outstanding LWA. A copy of that motion has been served upon this Board and all parties.

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preparation work pursuant to 10 CFR $50.12, they committed to redress the site "if necessary," which they interpreted to mean "if a construction permit were denied." Applicants' Memorandum In Support of Request to Conduct Site Preparation Activitiec, July 1, 1982, at 31. Licensing Boards have also required site redress on several occasions in which construction permit proceedings have been terminated on grounds of mootness, triggered by the applicants' decision not to construct the facility. See, e.g., Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), LBP-82-37, 15 NRC 1139 (1982); Public Service Company of Oklahoma Associated Electric Cooperatives, Inc., Western Farmers Cooperative, Inc. (Black Fox Station, Units 1 and 2), LBP-83-10, 17 NRC 410 (1983).

If the Applicants receive a construction permit for the CRBR, it is reasonably foreseeable that they will not perform any, or will drastically limit, redress of the CRBR site. Since the $88 million worth of site preparation work was scheduled to c

be completed in December, most of that work has now been I completed. It includes clearing trees and shrubs, leveling the l

site, dredging the Clinch River, excavating, and constructing l temporary facilities. If the site is not redressed, or if l redress is limited, NRDC members will be irreparably harmed by the resulting environmental degradation.

NRDC should be permitted to intervene in this proceeding for

! the limited purpose of raising two related issues the effect of the CRBR's termination on the Constructio.1 Permit proceedings, l

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and the effect of the CRBR's termination on the Board's earlier findings on whether the Project is reasonably likely to meet its programmatic objectives in a timely fashion. Neither the Applicants nor the Staff have raised these issues with the Board, nor has the Board considered them on its own motion. NRDC submits that its participation is essential in order that these subjects be given full consideration.

II. Statement of Contentions and Bases A. Contentions NRDC seeks to have the following two contentions litigated in the Construction Permit proceedings.

1. Because the Applicants have terminated the CRBR Project, neither Applicants nor Staff have established that the following conditions for grant of a Construction Permit will be met:

a. Such further technical or design information, not initially included, which may be required to complete the safety analysis, and which can reasonably be left for later consideration, will be supplied in the final safety analysis report (10 CFR 550.35(a)(2));

b. Safety features or components, if any, which require research and development have been described by the Applicant and the Applicant has identified, and there will be conducted, a research and development l

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.. program reasonably designed to resolve any safety questions associated with such features or components (10 CFR $50.35(a)(3));

c. There is reasonable assurance that such safety questions will be satisfactorily resolved at or before the latest date stated in the application for completion of construction of the proposed facility (10 CFR {50.35(a)(4)(i));

d. The application states the earliest and latest dates for completion of the construction of the facility (10 CFR ((50.33(h), 50.45).

2. Neither Applicants nor Staff have adequately analyzed the alternatives to the CRBR for the following reasons:

a. Neither Applicants nor Staff have adequately demonstrated that the CRBR as now planned will achieve the objectives establishc1 for it in the LMFBR Program Impact Statement. and Supplement.

1. It has not been established how the CRBR will achieve the objectives there listed in a timely fashion.

2. The CRBR is not reasonably likely to demonstrate the reliability, maintainability, economic feasibility, technical performance, environmental acceptability or safety of a relevant commercial LMFBR central station electric plant.

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B. Bases of Contentions These late-filed contentions have been triggered by the recent actions of Congress and the Applicants, respectively, in failing to provide Fiscal Year 1984 funds for the CRBR, and in terminating the CRBR Project. These actions are described below:

1. The Failure of Congress to Provide Fiscal Year 1984 Funding for the CRBR In December 1982, Congress narrowly agreed to provide funding for the Clinch River Breeder Reactor through September 30, 1983. Continuing Appropriations For Fiscal Year 1983, Pub.

L. No.97-377, {101(f), 96 Stat. 1830, 1906 (1982). In so doing, however, Congress directed the Department of Energy to

" vigorously explore" cost-sharing proposals that would reduce Federal budget requirements for the Clinch River project. H.R.

Rep. No. 980, 97th Cong., 2d Sess. 186 (1982).

In July 1983, Congress included no funds for the Clinch j

River Breeder Reactor in the Energy and Water Development Appropriation Act for Fiscal Year 1984, Pub. L. No. 98-50, 97 Stat. 247 (1983). Both the Senate and House Appropriations Committees had found it impossible to recommend funding in the absence of a " viable and substantive alternative to reduce Federal appropriations requirements." See S. Rep. No. 153, 98th Cong., 1st Sess. 103 (1983); H. Rep. No. 217, 98th Cong., 1st I

Sess. 81 (1983).2/

On August 1, 1983, the Department of Energy submitted a CRBR cost-sharing plan to Congress, but Congress did not act upon the proposal before the end of Fiscal Year 1983. The September 30, 1983 interim Continuing Resolution, which enabled government agencies to continue operation until November 10, 1983, contained no new funding for the CRBR. Continuing Appropriations for Fiscal Year 1984, Pub. L. No.98-107, 97 Stat. 733 (1983).

Congress finally considered the CRBR cost-sharing plan in connection with H.R. 3959, the Fiscal Year 1984 Supplemental Appropriations Bill. Although the House-passed version contained no CRBR funds, see 129 Cong. Rec . H8013 ( Oct . 5, 1983), the Senate Appropriations Committee approved an amendment containing a multi-year appropriation of $1.5 billion for the CRBR, contingent upon private sector commitments of approximately

$1 billion under the cost-sharing plan., After extensive debate concerning the cost-sharing proposal, as well as the merits of the entire CRBR Project, the Senate voted on October 26, 1983 to table the amendment and thus provide no Fiscal Year 1984 funds 2/ Similarly, in considering the Department of Energy Civilian Research and Development Authorization Act for Fiscal Year 1984, H.R. 2587, the House voted by an overwhelming 388-1 margin to make further CRBR authorization contingent upon the approval of a satisfactory cost-sharing agreement with the utility industry. See 129 Cong. Rec. H2899-2904 (May 12, 1983).

for the CRBR. See 129 Cong. Rec . S14611-S14644 (Oct. 26, 1983).3/

2. The Termination of the CRBR Project Following this Congressional action, Applicants moved swiftly to terminate the CRBR project according to the terms of the principal Project agreement. This contractual agreement was entered into pursuant to Pub. L.91-273, as amended (1970), the original CRBR authorization legislation. See Modification No. 1 to Agreement Among United States of America As Represented By the United States Atomic Energy Commission And Tennessee Valley Authority And Commonwealth Edison Company And Project Corporation, Modification No. 1 To Contract AT (49-18)-12 (the

" Principal Project Agreement"). Paragraph 11 of the Principal Project Agreement (see Attachment A) provides for termination of the CRBR Project upon written agreement of the parties that one or more of the eight enumerated Project termination criteris have been met.

On November 2, 1983, the Department of Energy wrote to the other Project participants that, "as a result of the failure of j the Congress to provide funding for the Project for fiscal year 1984," it was the agency's opinion that one of the contract termination criterion had been met, namely, that "it appears that l

3/ Congress completed action on the Fiscal Year 1984 Supplemental Appropriations Bill on November 18, 1983. See 129 Cong. Rec. ___ (Nov. 18, 1983).

there are or will soon be insufficient Project resources to permit the effective conduct of the Project, including full satisfaction of anticipated commitments and contingencies."

Letter from Percy Brewington, Jr. , Contracting Of ficer, CRBRP Project, DOE, to Mr. James J. O'Connor, Mr. Charles H. Dean, Jr.,

and Mr. Wallace B. Behnke (Nov. 2, 1983) (see Attachment B). On November 10, 1983, the Department of Energy, the Tennessee Valley Authority, the Commonwealth Edison Company, the Project Management Corporation, and the Breeder Reactor Corporation, agreed in writing to terminate the CRBR Project on November 14, 1983 (see Attachment C). This Termination Agreement states that "there appears no substantial likelihood" that Congress will appropriate any n. ore funds for the project. Id.. at 3. The Department of Energy has directed its contractors to halt the ongoing CRER site preparation work and to arrange for redressing and seeding where required. Letter from Percy Brewington, Jr.,

Acting Director, CRBR Project, to Stone & Webster Engineering Corp. (October 28, 1983) (see Attachment D).

3. Effect of CRBR Termination Upon Construction Permit Proceedings Regarding Contention 1, NRDC submits that the failure of Congress to provide Fiscal Year 1984 funds for the CRBR, the lack of any substantial likelihood that Congress will appropriate any more-funds for the project, and the decision of Applicants to terminate the CRBR Project on November 14, 1983, make it impossible for the Applicants to meet all the criteria in 10 CFR l

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((50.35 and 50.33 for grant of a construction permit. Applicants cannot prove with reasonable assurance that remaining information will be supplied in the final safety analysis report, when there are no present plans even to prepare such a report. Nor can Applicants prove that unresolved safety questions will be satisfactorily resolved before the latest date stated in the application for completion of construction of the proposed facility. The Applicants cannot with good faith include an date for completion of construction of the facility, when all plans to begin construction have been scrapped. Thus, Contention 1 alleges that, because of the termination of the CRBR and its lack of funding, the critaria for a construction permit can no longer be met.

Contention 2 is merely a restating of Intervenors' original

and admitted Contention 7(a)(1) and (3), which maintains that neither Applicants nor Staff have established that the CRBR is reasonably likely to meet its programmatic objectives in a timely fashion, including the objectives of aonstrating economic feasibility. As mentioned above, the Board left open the opportunity for Intervenors, NRDC and the Sierra Club, to prove that significant new information or a change in circumstances

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justify alteration of the Board's LWA findings on Intervenors' environmental contentions. Transcript of April 20, 1983 Conference with Counsel at 510-515. For this reason, when Intervenors withdrew their remaining Construction Permit l contentions, they sought to remain as parties to the CP l

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proceedings, since their LWA contentions were part and parcel of the CP proceedings. Transcript of June 29, 1983 Conference with Counsel at 7307-09, 7313-14. The Board, however, decided to dismiss NRDC and the Sierra Club as parties to the construction permit proceeding, neither with prejudice nor without prejudice. Idl. at 7330, 7333.

Therefore, instead of moving to reopen the record to consider new evidence regarding Intervenors' contention 7, as NRDC would have otherwise done, and as the Board had originally envisioned, NRDC has resubmitted that Contention as a new contention. The only issue we wish to raise regarding this contention is one that has never been raised before; namely that, as a result of the CRBR termination and the failure of Congress to provide funding for the project, there is no likelihood that the CRBR will meet its programmatic objectives in a timely fashion, or at all.

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I C. Justification for Nontimely Filings NRDC submits that, although these contentions are submitted at a late stage in'the CRBR construction permit proceedings, this motion should be granted since it meets the five factors required l

for the submission of a nontimely filing in 10 CFR $2.714(a)(1).

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1. Good Cause for Late Filing l

There is abundant good cause for failing to file these l

l contentions on time, since the actions by Congress and Applicants l

which triggered these contentions did not occur until very l _ - _ -

i recently. Of most importance, the Applicants did not formally terminate the CRBR Project until November 14, 1983, scarcely more than s week ago. The funding for the CRBR did not run out until November 10, 1983, and Congress did not complete action on the Fiscal Year 1984 Supplemental Appropriations Bill until Friday, November 18. Until these actions were taken, there was no basis' for raising these contentions. Once they occurred, NRDC moved as quickly as possible to raise these matters before the Board.

2. There Are No Other Means Available to Protect Petitioners' Interest NRDC has no other forums in which to argue that the CRBR construction permit should not be issued. The Licensing Board has sole jurisdiction to decide this matter in the first instance, and NRDC's attempt to raise this matter elsewhere would undoubtedly be referred back to this Board. The Licensing Board also has the primary authority to terminate the Construction Permit proceedings as moot, to order appropriate site

. restoration, and to order the NRC Staff to oversee site restoration efforts, all of which actions would adequately protect NRDC interests.

. 3. NRDC's Participation Will Assist in Developing a Sound

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l NRDC has been an active participant in the CRBR proceedings l since 1975. When the Board dismissed Intervenors as parties to the CRBR Construction Permit proceedings, two of the Board I

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members stated that over a period of years, Intervenors have made very valuable contributions to the proceedings, particularly in stimulating the Board's thinking about many of the complexities of the proceeding. Transcript of June 29, 1983 Conference With Counsel at 7354. NRDC submits that their further participation in this proceeding to consider the effect of CRBR termination

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will continue to assist the Board in determining the effects and 2

in developing a sound record.

4. NRDC's Interests Will Not Be Represented By Existing Parties NRDC's interests will not be represented by Applicants and Staff, the other parties to the CP proceedings. The Applicants have indicated their intent to seek completion of the CRBR Construction Permit proceedings, despite the actions of i

Congress. See Applicants' Confirmation of Notification Concerning Legislative Status, October 31, 1983. To NRDC's i knowledge, Applicants still intend to seek completion of the CP proceedings even though the Project has subsequently been terminated. Furthermore, to the best of NRDC's information and belief, the NRC Staff has also notified the Board of its position that the CP proceedings should continue. See Nucleonics Week, l

November 17, 1983, at 6. It is thus manifestly apparent that l

none of the existing parties intend to raise the issues covered by NRDC's contentions, nor will they act to protect the interest of NRDC's members as stated above. ,

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5. NRDC's Participation Will Not Delay the Proceedings or Broaden the Issues Substantially Accepting NRDC's limited contentions will not delay the construction permit proceedings substantially, since, if they are successful, they may cause the Board to terminate the

! construction permit proceedings altogether. This would result in i

a considerable savings of time and expense to the Licensing Board, who at this moment is presumably sifting the evidence from the CP construction permit evidentiary hearings in order to reach a decision.

The issues raised in NRDC's contentions have been triggered by facts which are not open to dispute, and they can be resolved with a minimum of effort. Indeed, in the alternative, the Licensing Board could on its own motion terminate the CP proceedings on grounds of mootness and dismiss the application without prejudice, without the need for an evidentiary hearing at all. See Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-605, 12 NRC 153 (1980). The inclusion of NRDC's contentions may broaden the issues in the proceeding to the extent that no other party has seen fit to raise them, but NRDC submits that the issues are of such paramount importance that the Board has no choice but to consider 1

them. Indeed, as mentioned above, on numerous other occasions, I

on Applicants' abandonment of plans to construct a facility has led to termination of the proceedings altogether. See, e.g.

Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), LBP-83-2, 17 NRC 45 (1983); Public Service Company of

Oklahoma, Associated Electric Cooperative, Inc., Western Farmers Electric Cooperative, Inc. (Black Fox Station, Units 1 and 2),

LBP 83-10, 17 NRC 410 (1893).

Conclusion In light of the foregoing, NRDC respectfully requests that this Board permit NRDC to intervene in the CP proceedings, and accept for litigation the contentions described above.

Respectfully submitted,

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, 9& ht MP B'arbara A. Finamore S. Jacob Scherr Attorneys for Intervenors, Natural Resources Defense Council, Inc. and the Sierra Club Dated: November 23, 1983 l

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.M b'(.e I MODIFICATION NO. 1 v ro f AGREEMENT -

AMONG UNITED STATES OF AMERICA AS REPRESENTED BY THE UNITED STATES ATOMIC ENERGY COMMISSION AND -

TENNESSEE VAI1EY AUTHORITY AND COMMONWEA5.TH EDISON COMPANY PROJECT MANAGEMENT CORPORATION

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• contract, unless TVA and ERDA agree upon another basis at

, that time. If the facility is no't completed or operated on ,

the site, as provided for above, or upon conclusion or '

completion of operation on the site, ERDA shall, except as ERDA and TVA otherwise agree to, effect such decommissioning, removal, dismantling, and other disposal measures, at its own expense, as ERDA considers safe, environmentally suitable, ,

advisable, and reasonable, and which will not affect TVA's I use of the remaining portions of the tract described in Appendix A in any more adverse manner than said portions i would have been affected by operation of the Plant during '__

the demonstration period.

10.2.3 PMC shall, for a reasonable period of time at ERDA's request and expense, assist EDDA and TVA in con-nection with the activities referred to in 10.2.2 above.

10.3 It is agreed that ERDA shall own the Plant and TVA shall provide ERDA with an appropriate document transferring custody of the site to ERDA.

10.4 It is further agreed that during the dem-onstration period TVA will afford PMC and the utility industry the same right . to information, data, cor. ultation, notice and participation by qualified personnel as those provided by ERDA under the applicable terms of this contract.

11.0 Termination 11.1 Notwithstanding the provisions of paragraph 2.3.5 termination of the Project shall be effected exclu-sively in accordance with the provisions of this paragraph 11.0 and PMC has inserted provisions in the PMC-BRC contract which will effectuate the provisions of this paragraph 11.0, t and it is agreed that although BRC is not a party to this contract, BRC shall have the rights and obligations con-ferred or imposed upon it under this paragraph 11.0.

11.2 The Project will terminate at the end of the term of this contract (as specified in paragraph 6.1) and it may be terminated at any time (and the affairs of the Project wound up) by common agreement in writing among PMC, BRC, TVA, CE and ERDA.

11.3 If at any time any one of BRC, PMC, CE, TVA, or ERDA believes that one or more of the Project ter-mination criteria set forth in paragraph 11.4 have been met, and if in the opinion of such party the Project should be terminated on that account, it shall give written notice to

. ,; d the other parties listed above and all parties shall confer and . ".* view the situation. If, after conferring and review-ing the situation with the othe parties (or after making a good faith effort to do so) such party still desires to terminate the Project for that reason, it shall, not more than 45 days after giving the initial written notice referred to above, give a second written notice to all of the parties listr' above, and, unless, within 15 days after the giving of such second notice, one or more of the other parties gives written notice to all othe parties that in its good faith judgment, the facts fail to establish that one or more Project termine : ion criteria have been met, the Project shall forthwith terminate, subject to the allowance of a reasonable time for the winding up of Project Activities.

If any party gives such notice that in its good faith judg-ment the facts fail to establish that a Project termination criterion has been met, the matter again hall be referred to all parties for consultation. If within 30 days after receipt of such notice, any th_ree__or mor_e of the parties give notice in writing that in their good faith judgment a Project termination criterion has been met, the Project shall, subject to winding up Project Activities, terminate

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on the tenth day following such notice unless on~Br before the tenth day after such notice any one of the parties who gave notice of its disagreement that a Project termination criterion had been met, elects, by written demand served upon the other partiesi to postpone actual termination of the Project for a reasonable period of time (not to exceed six months), provided that such party shall furnish with such demand a certificate signed by the head of such party (as defined in paragraph 2.3.5 with respect to ERDA, TVA and CE and similar officials of PMC and BRC) to the effect that such party in good faith believes that within said period it can correct the conditions due to which each relevant Project termination criterion has been judged to have been met. If such party successfully corrects such conditions within said period the Proj ct shall continue. No party shall be deemed to have waived its right to utilize the foregoing termina-tion procedures by reason of its acquiescence in the exis-

' tence or continuation of facts or conditions constituting a Project termination criterion.

11.4 Each of the following shall constitute Project termination criterion:

11.4.1 [Rererved]

11.4.1.1 Any necessary governmental permit, license, authorization or approval required for the construction or

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operation of the Plant shall not have been secured within six months following the scheduled time for such action on ERDA's approved Project schedules, and the Project is seri-ously delayed or hindered thereby.

11.4.1.2 There continues to exist for six months a revo tion, suspension or loss of the right to proceed under any sacessary permit, license, authorization, or approval, and the Project is seriously delayed or hindered thereby.

11.4.2 The conditions precedent to the start of construction set forth in paragraph 5.2 have not been met within six months from the date ERDA certified it is other-wise ready to start construction and (but for the failure of said conditions to have been satisfied) had all necessary legal or Governmental authority to do so.

11.4.3 Despite the best efforts of ERDA and TVA, they have failed to obtain or maintain indemnification cov-erage under or substantially comparable in scope and in respect of persons indemnified to that required by the pro-visions of Section 170 of the Atomic Energy Act of 1954, as amended, when said coverage is reasonably required for the Project, including the protection afforded by the limitation of liability contained in Section 170(e) ef the Atomic Energy Act.

11.4.4 Upon consideration of all available resources, including ERDA's efforts to obtain additional funds pursuant to paragraph 4.1.4, it appears at any time that there are or will soon be insufficient Project resources (including funds to cover the cost of the turbine-generator, auxiliary equip-ment, switchyard and associated facilities) to permit the effective conduct of the Project, including full catis-faction of anticipated commitments and contingencies.

11.4.5 There is in existence a final court injunc-tion or administrative order with respect to which all times for appeal have run which prevents the Project from proceed-ing to conclusion in a manner permitting attainment of the, Principal Project Objectives.

11.4.6 For technical or environmental reasons the Principal Project Objectives cannot be realized.

11.4.7 There is in existence a written determin-ation by PMC, delivered to all parties, that it does not ,

agree with a decision of the Administrator of ERDA, made pursuant to the provisions of paragraph 2.3.5, to proceed with a major. change from the Reference Design.

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11.5 The following provisions shall govern the '

financial obligations of PMC and ERDA to each other follow-ing termination of the Projcct. ,

11.5.1 Upon termination. PMc shall cay to ERDA an amount et al to (a) the total of (i) all funds undeE F4Ds pcLR(szit , control or direction ac the date Ef7'ifdC T51on, and (iTT~aTI funda_rAlaajugl Yo' 7MC by'Cr aHd'NA pursuant to the provisions of paragraph 9.4 subsequent to the date of termination, less an amount equal to (b) PMC's unpaid allow: le costs of (i) operating PMC through the date of termination

, (ii) satisfying any claims or liabilities asserted against PMC, and (iii) winding up PMC's affairs follow'ng the date of termination. PMC shall also assign to ERDA all of PMC's rights, if any, to collect and receive any amounts due and unpaid as of the date of termination under any Utility Contribution Agreement, it being understood, however, that no contributing utility shall have any obligation to make any payment under a Utility Contribution Agreement which payment becomes due at any time following the date of ter-mination. In the event that PMC's allowable costs exceed l the total of all funds referred to in (a) above, ERDA shall l pay such excess allowable costs on behalf of PMC.

11.5.2 PMC's payments under this paragraph 11.5 shall be made in two installments, both of which shall be determined by PMC and be subject to prior verification by ERDA. The firstthe installment shallation'.

be- naid no later_'than 45 days following date of termi; The~sidond insdal'l-ment shall be paid upon receipt by PMC of an audit from PMC's independent Certified Public Accountants (which shall promptly follow the wind-up of PMC's affairs, and the final disposition of, or provision for, any outstanding claims against or liabilities of PMC) .

11.5.3 Each installment referred to in paragraph l 11.5.2 above shall be in an amount equal to the total of all i

! funds described in ll.5.l(a) above which are held by PMC as

! of the date of such installment, less those rese ees, if any, established by PMC pursuant to paragraph 2.5 covering those matters described in 11.5.1(b) above. Any amounts held in reserve by PMC pursuant to paragraph 2.5 above which exceed PMC's actual obligations shall be paid promptly to ERDA.

11.5.4 Exce t as provided for in this paragraph 11.5, PMC shall hate p'o~ obligations of ~any~ kind' to ERDA

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respecthg~theT6sts ofTinding up the" Pro [ecf (should ERDA

( decid6 'to dcIsWBr~tTCd'5cbmiifissichi~ rig,~ dissintling or l removal of the Demoistration Plant.

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11.7 [ Reserved] ,

Ic.0 Subcontractor Disputes 12.1 PMC rhall incorporate the following clause, with respect to disputes between PMC and any of its con-tractors (other, than CE, TVA and BRC) :

"Except as otherwise provided in this contract, any disputes concerning a question of fact arising under this contract which are not disposed of by agreement chall be decided by the PMC Board of Director. or its desi.aea which shall reduce its decision to writing and mail or otherwise .

furnish a copy thereof to the contractor. The decision of the PMC Board or its designee shall be final and conclusive naless within 30 days from date of receipt of such copy the  !

contractor mails or otherwise furnishes to the PMC Board or its designee a written appeal addressed to thc. ERDA Bcard of Centract Appeals. The decision of the Board of Contract Appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply had faith, or not supported by substantial evidence.

In connection with any appeal proceeding under this clause,

. ..he parties shall be afforded an opportunity to be heard and -

to offer evidence in support of their positions. Pending final decision of a dispute hereunder, the contractor shall proceed dilige2.tly with the performance of the contract and in accordance with the decision of the PMC Board or its de-signee. This disputes clause does not preclude consideration of questions of law in connection with decisions prov'ded for above: Provided, that nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law."

13.0 Notice 13.1 Whenever a notice is given under this con-tract it shall be in writing, and a copy shall be sent to each party.

14.0 Contract Appendices The attached appendices constitute integral parts of this contract:

e

i,

..,.g ,

ATTACHMENT B h

co.cu== css NTG. Stessot

=mus.

November 2, 1983 .......

un ATG. 3vasso6 Mr. James J. O'Connor, Chairman ts'aa ' *

) Breeder Reactor Corporation

, P. O. Box 767 sh*****

Chicago, Illinois 60690 NT4. svaneet Mr. Charles 'H. Dean, Jr., Chairman Tennessee Valley Authority and.J.E.**

E12A7 ,,,,,,,

400 Commerce Avenue un Knoxville, Tennessee 37901 ms.s w.o6 Mr. Wallace B. Behnke, Chairman

, Project Management Corporation * ' Js*si.*

• P. O. Box 767

. Chicago, Illinois 60690

• ah*****

Mr. James J. O'Connor, Chairman n s.s m oot

' Commonwealth Edison Company ,,,,,,,

. P. O. Box 767 mmusmc.

Chicago, Illinois 60690 ,,,,,,,

Gentlemen:

RTG, svaneet TERMINATION OF CLINCH RIVER BREEDER REACTOR PLANT PROJECT ,,,,,,,

PURSUANT TO MODIFICATION NO. 1 TO CONTRACT NO. AT (49-18)-12 ==*s.

The Department of Energy has reluctantly concluded that the un'~

Project termination criterion set forth in Paragraph 11.4.4 of Modification No. I to Contract No. AT (49-18)-12 has been met, "s s==oe namely, that it appears that there are or will soon be insuf- ,,,,,,,

ficient Project resources to permit the effective conduct of the == *c.

Project, including full satisfaction of anticipated commitments ,,,,,,, ;

and contingencies. This is the result of the failure of the Con-un

, gress to provide funding for the Project for fiscal year 1984.

believe Shelby Brewer has discussed the situation with you and == s=*ot i

pursuant to the provisions of paragraph 11.3, this letter will ,,,,,,,

amass'a.

i constitute written notice that it is the Department of Energy's

! opinion that the Project should be terminated on this account. ,,,,,,,

It is also recuired by Paragraph 11.3 that DOE and the represen- oan tatives of the addressees of this letter confer on this matter.

DDE F0mv AD.9 M2 771 OFFICIAL FILE COPY D[ __ --

,. I

• Multiplo Addracccas Novcmb3r 2, 1983 ,

Paragraph 11.2 of the contract provides that the Project may be co cu=...cu terminated by common agreement in writing among PMC, BRC, TVA, n G.s m .o6 CE, and DOE. As you can appreciate, the shortage of remaining CR-73 funds and the need to institute termination activities makes it M * *.

necessary that agreement on Project termination be reached at the F@ I' earliest possible time. To expedite matters, I recommend that we da?!

proceed immediately to prepare and execute such an agreement and 11/2/83 I have asked John D. Wagoner, Project. Deputy Director, to contact n G.sv=.o6 your representatives to discuss it. ,ga,79,,

Sincerely, p.....

Original signed by 2/83 Percy Brewington, Jr. .,

Percy Brewington, Jr.

. A Contracting officer **'

CR-73: PRS:83-130 CRBRP Project an f

bec: R. E. Mason . nG. s= tot C. D. Hobelman ...... .

L. E. Wallace ** nan *G.

DATI RTG.5Yu.06 NTE.sYmeO6 8MfTIALElBIG.

DAM NTG Svusos

=mams.G.

1 WTG.3TusOL

( -

ArAd *ish.*

l ..... .

l

. Dan CR-73 :PShlencn: rss : 6-6111: 11/2/83 i

i DOE

• FORM AD-9 (12 771 OFFICIAL FILE COPY

i .

ATTACHMENT C

. I-[ ,

AGREEMENT AMONG UNITED STATES OF AMERICA AS REPRESENTED BY TME DEPARTMENT OF ENERGY AND TENNESSEE VALLEY AUTHORITY f

AND COMMONWEAL!E EDISCN COMPANY

^

AND PRCJECT MANAGEMENT CORPCRATION AND BREEDER REACTOR CCRP' ORA?{CN __

This Agreement is entered into this loch day of November, 1983 by and a ong the United States of America (hereinafter " Government") as represvnted by the United States Department of Energy (hereinafter "DCE") Tennessee

" alley Authority (hereinafter "TVA")- CommonWe&lth Ediscn Company (nereinafter "CE*): Project . Management Corporation (hereinafter "PMC"): and Breeder Reacter Ccrporazion

~

4 (hereinafter "BRC"). -

WITNESSETH:

' WHEREA5, the Government, as represented successi ely l

by the United States Acomic Energy Commission, the United

_- -__.. _ _ - - _ . - - -- ._. .- =

States Energy Research and Development Administration and DCC, TV A, CE', PMC and BRC heretof ore have entered into certain agteaments among and between themselves, including Contract No. AT (49-18)-12, e f fective as of January 13, 1972, and Modifica tica No. I thereto, executed on May 4, 1976: Contract No. 49-18-12-1, effective as of January 13, 1972, and Modi'ication No. 1 thereto, executed on May 4, ,

1976: and Contract No. AT (49-18)-14, executed on July 25, t

1973, and Modification Nc. I thereto, executed on'Xay 4, 1976: (above contracts hereinaf ter " Principal Project Agreements"): and WHEREAs, the Principal Project Agreements were antored into by the Government, TVA, CE, PMC,.and 3RC to

~

design, develop, construct, test and operate the Nation's first large-scale Liquid Metal Fast'areeder Reactor Demon-stration Plant, such cooperative effort being termed the

" Project"; and WHEREAS, the Principal Pr'oject Agreemen s pro-vide for the termination of the Project in the ovent tha t one or more of the Project termination critdria set forth .

i - in Part I, Paragraph 11.4 of Modification Nc. L to contra:t No. AT (49-18)-12 nave been met and further provide for the termination of the Project by common agreenent in writing among PMC, BRC, TV A , CE and DOE under Part I, Pa ragraph 11.7 of Modification No, I to contract No. AT (49-19)-12 : and 0019-9E9 Eli 3D0I8 M90 dB883 IND SE:li CST /WII a,. , , - - - , - - - - , - - . - , , , , - - - _ . - - - - - - ,,-,--,-----------,---,e,-,m,--r,+,- - ,, -

-- r w e , , ,-- , , , , - - - - --m, - -- -.smem-.m -

WHEREAS, the appearance that there vill soon be insufficient Project resources to permit the ef fective conduct of the Project constitutes one such termination

, criterion: and WEEREAS, Congress has f ailed to appropriate funds t'o carry tne Project forward in riscal Year 1984 in

1. accordancs with the Principal Project Agreements and there appears no substantial likelihood that Socn funds vill oe appropriated; and WHEREAS, such Congressional f ailure to appro-pria te funds has onde it apparent that there will soon be ins,ufficient Project resources to permit the eifective

+ r conduct of tne Project, and accordingly that a terminatien ,

criterion has been met; and WHEREA5, the Principal Project Agreements under Part 1, Paragraph 11.0 of Modification No. I to Ocntract Nc. AT (49-18)-12 contemplate that tne parties may age =* :o certain m6tters as a part of the termination of the Project:

and WHERE As, breeder reactor tecnnology remains an important component of this Nation's future energy needs:

and WHEREAS, termination of the Prcject vitally af fects the interests of the employees of ne parties at the site of the proposed Oemonstration 21dat at Oak RidCe 00T9-9E9 Sid 3DGIH XUO 48883 1HD OC:2t CSI/ WIT

s ..

and the interests of their respective employers regarcing such employees; and WMfAEAS, utilities have contributed substantial .

sums and otherwise have contributed support for the Project through agreements with BRC and through the Principal Project Agreementst and i

WHEREAS, PMC and BRO have incurred obligations in connection with the furtherance of Project oojectives and to the wind-up of will continue to incur costs with respect the Project; and WHEREAS, continued cooperation and consultation among the parties is necessary to arcogplish an cederly __

termination of the Project and enhancement of, LOE's breeder program through post-termination programs and activities:

NOW, THERE!CRE, in consideration of tne mutual covvaants and agteements hereinafter set fortn and other f

1 good and valuable consideration, receipt of which is hereby ocknowledged, the parties agree as follows:

1.0 Defini icns.

1.1 As used in this Agreement, terms are defined as set forth in Paragraph 1.0 of Part I of Modifica-tion No. 1 to AT (49-18)-12, Agreement Among United states of America as represented by the United States Atomic and Energy Commission and Tennessee Valley Authority 1

l 00T9-9E9 S'id SDOIN M90 d3333 1HD TC:li CBI/WII m w, --- - - - - - - -- ---- -

- -- g .- - - . - - - - - g , - - , - ., ,- 7

Coomonwealth Edison Company and Project Managemer.t Corpora-tion, executed on May 4, 1976.

1.2 "This Agreement" means all une terms and provisions contained in this Agreement.

1.3 "DCE" means the United states Depart.,ent of Energy.

1.' 4 "Pa rties" mean the Government of the United States of America, TVA, CEi PMC and BRO.

2.0 DOE's ongoing Breeder Procram. DOE remains s trongly committed to the advancement of the Nation's breeder technology, and tc the concept of minimizing the serious damage which termination of the Projecc.otherwise would nave  :-

upon the Nation's ongoing breeder program. To the extent f eas ible , and subject to available funding , Dot snali pursue these objectives through appropriate means, iicluding enhanced cooperation in ongoing overseas demonstration piant prograos 2.7d the utilization of the beneficial aspects of Project-developed technology and experience.

3.0 Termination. The parties ag ree t ha t termina-tien of the Project is appropriate and agree to cooperate fully in the termination process. The parties ' agree that the termination date of the Project shall be tiovemcer 14, 1983.

00T9-9E9 Sid 3DOIB MWO d'd883 iWD EC:li 08IeWII

4.0 . Termination Procedures. The parties shall implement termination procedures in 4 cost-effective manner consistent with the interests of the employees of the parties ,

in oak Ridge and of their respective employers regarding such employees.

p 5.0 The parties shall consult upon post-termination programs and activities, including utility industry partici-pation therein, which will enhance DOE's breeder prograo ,

through application of tne data, designs, informa-icn and to components developed during the course of the Project the program.

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6.0 Pursuant to the Principel Project Agreements,_

the parties shall assemble and document such non-ptoprietary technical, scientific and other potentially useful data, inf o rma tion , designs, inventions and know-how devcicped or discovered during the course of the Project as may be deemed by the parties to be potentially useful; and shall transport the above to, and store the above at, a suitable site providing full access to interested persons. All such

' activities shall be Project Activities under Part I, Para graph '

l.1.10 of Modification No. 1 to Contract No. AT (49-18)-12 and shall be the subject of consultation among the parties.

1 00T9-9E9 Sid 3DGIM MWO d8883.1W9 SE:li 08T/Wii

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,,--w w ,- = - =,e =wr w w-- m w ,- mwo - s --,e, - - + =,w--,----

7.0 The rights of parties and of utilities provided in Appendix E to Contract AT(49-18)-12 as amended by Modification No. 1 thereto shall survive termina tion of the Project.

- 8.0 Administration o_f PMC Funds. PMC and BRC nave incurred unsatisfied obligations. in connection witn f

the furtherance of Project objectives, including the development, explanation and implementation of the preposed a lterna te financing plan occasioned by Congressional directive. Further expenditures will be incurred by PMC and BRC tc meet reasonable and necessary costs incurrod an

- the' event of termination in order to wind up tne Project, __

terminate certain Project agreements, and phase cut appro-priate corporate activities. The parties agree that all such actions are Project Activities under Parc I, Paragracn 1.1.10 of Modification Nc. 1 to Centract No. AC (49-13)-12.

In view of prevailing circums:ances, no further cells shell l

be made upon contributing utilities by BRC to provide f unds to PMC, and sucn utilities shall be so ocvised. Funds already contributed by the utilities to BRC and transferred by BRC to PMC which rescin in the possession of PMC, i >

together witn accrued interest thereon, shall remain available to PMC and :o BRC (as a claim against PMC Dy 5RC representing a eeduction in tne BRC contrioution to the 0019-9E9 Sid 30018 480 dH883 1HD 82:21 GST'WII 1

l . - - - - - - - - . - - . .,____ _ -. - _ _ _ ___ _ _ _ _

C .- .

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contributed capital of PMC) in order to moet existing and expected obligations of PMC and 3RC and to provide for any contingent liabilities. Upon identification and verifica- -

tien of such costs and charges, and subject to appropriate provision for anticipated and contincent liabilities of FMC y

and BRC, PMC will pay over the b&ldnew of Projwct funds snan in its possession to DOE anc pecceed in accordance with Part I, Parsgraph 11.5 of Mod fication No. 1 rto ,

Contract AT (49-18)-12. DOE shall pecVide whatever funds may be " required to supplement PMO f unds in order to cover FMO's wind-up cos ts and for the discharge of any unsatis-fieb liabilities, as provided for in Ptic I, Paragrapn 11.5.1 of said Modification.

9.0 Other Wind-Oo Activities 9.1 Post-termination activities in addition I to those under the Principal Project Agreements, if any, which it may be appropriate for Com.monwealth Edison Ccmpany 1

or the Tennessee Valley Authority to perform on behalt of DOE shall oe undertaken by mutual agreement of the pb eties concerned and shall also be Project Activities under Part 1, Paragraph 1.1.10 of Modification No. 1 of Contract No, AT (49-18)-12.

t 9.2 Consultation among DOE, PMO ond TVA l

concerning the Project licensing process, including site

_g..

0019-9E9 Sid 3 DOI 8 MUO d8883 _WD 6C:2T CET/ WIT

4 restoration, shall continue as part of the wind-up of the Project. DOE shall be responsible for such costs and all other current and contingent costs associated with the licensing process as Project costs under the present P rojec t ,a rrangements .

.IN WITNESS WHER20F the parties have executed I

counter-this Agreement, which may be executed in one or moe:

rnis parts, all nf Unich shall be one and the same Agreement, 10th day of November, 1983.

PROJECT MANAGEMENT CORPORATION UNITED STATES Of AMERICA By:

ByI* Secre tary o' Energy --

A y- .

3y: /IZ4 /t[/1N '

. e rdy Bt E7ington, f r. '

cent acting Offic4r, Cli h River Breeder B actor Plant Project.

Department of Energy TENNESSEE VALLEY AUTHOSITf COM.MONWE ALTH EDISON COMPANY Sys By*

f _

i l

I DREEDER REACTOR CORPORATION Sy: _ _

Alex R4 din.

Vice Chairman 00T9-9E9 $13 30 GIN XWO d3883 IND OP:21 CeTeWII

, ^'.'... -

I, certify that I am of the Project Management Corporation ident1Iic0 a party herein, that _w ho signed this Agreement on behalf of said corporation; of the corporation was then ~

that said Agreement was duly signed for and on behalf of said corporation by authority of its governing bcdy and ir .

within the secpe of its corporate powers. ,

IN WITNE$$ WHIRE0r, I have hereunto affixed my r.and and the seal of said coeporation this day of y , 1983, t

(SCAL)-

I, certify that I am of Come.onwe' alt.*_ Edison Company identified as a party herein, that _ who signed this Agreement en behalf of said corporation of the corporation was then tha said Agreement.vas duly signed for and on behalf of said couperation by authority of its governing ocdy and as within the scope of its corporate powers.

IN WITNESS WHEREOF, I have hereunto affixed my hand and the seal of said corporation this dcy of

, 1983, (SEAL) 0019-939 Sid 3D018 'AUG d8883 IWD IF:21 081/pt1

4 %4

, y 'q ' , . . . . ,

ATTACHMENT D Dnpartrnant of Encrgy

[*P*

l -

Oak Ridge Operatiorm

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P. C. Box U -

Ook Ridge. Tennessee 37831 .

October 28, 1983 . .

Stone L Webster Engineering Corp. .

ATTN: Mr. Henry A. Morgan, Jr. ~

Project Manager, CRBRP Project ,

P. O. Box 811 '

Dak Ridge,,TN 37831 Gentlemen: -

CURTAILMENT OF CONSTRUCTION ACTIVITIES -

Reference:

Letter, SWO 1583, Morgan to Brewington, Jr., '

subject: " Notice of Costs Approaching Fun'ds Obligated - CRBRP," dated October 27, 1983 The purpose of this letter is t,o furnish Stone .& Webster Engineering Ccrporation interim guidance regarding actions to be taken due to a lack of adequate funding to support all. contract activities.

As discussed in our meeting today, I am .in agreement that the following i steps'should be initiated as soon as possible to conserve available funds:

A. Pemit the transfer of any personnel .that SWEC requires '

elsewhere in its operations. .

~~

2. As of October 31,1983,' reduce your force iccount work to a " caretaker" status.

3. Suspend work on subcontracts and. purchase orders on a no-cost basis, where possible.

4 If it beccmes 'necessary to terminate any subcontracts or purchase orders due to insufficient funding, prior Project Office approval should be requested.

5. Suspend all arrangements for ASME qualification.-

3 q -

i 6. Avoid termination pf SWEC non-manual personnel, if possible.

e l

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..S.. 0 4

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Mr. Henry A. Morgan, Jr. October 28, 1983 ..

7. In connection with the work being perforined under the P.erini .

subcontract, discontinue work on the sludge lagoon, rock and -

comon excavation, placing of access road sub-base, and rock cleaning. In addition SWEC should arrange for assignment of ',

Perini subcoi. tracts for and assume completion of the potable water line and redressing and seeding where required. ~

' Additional instructions will be' issued to you as soon.as information '

becomes available.

Sincerel . . .

.' .l hrcyB.,wyngtontJr. .

Actin irector u CR-723:EAK:83-786 CRBRP Project -

cc: Grant"Hansen, CR-76 .

G. C. Grisaffe, CR-71 . -

,- J. D. Wagener, CR-70 4 .

, ~ ,_

. * ;..,= ,* . ,

- 3

. W e G

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_ _ _ _ _ _ _ . _ _ _ . . _ _ _ _ _