ML13302B926
| ML13302B926 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 01/27/1978 |
| From: | Frysiak J Atomic Safety and Licensing Board Panel |
| To: | Carstens A, Davey D, May D, Von Handen L AFFILIATION NOT ASSIGNED, FRIENDS OF THE EARTH, GUARD |
| Shared Package | |
| ML13302B925 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8102280592 | |
| Download: ML13302B926 (19) | |
Text
Lj UNITED STATECS OF :2iMETCAD NUCLEAR REGULATORY COMMIi iSS ION Before the Atomic Safet§-? nl Uaensin'g2?,oard In the Matter of)/
SOUTHERN CALIFORNIA EDISON
)
)
Docket Nos.
50-361 OL
)
50-362 OL (San Onofre Nuclear Generating
)
Station, Units 2 and 3)
)
MEMORANDUM AND ORDER This Memorandum and Order pertains to the contentions of Intervenors Friends of the Earth, Mr. and Mrs. August Carstens, Mr. and Mrs.
Lloyd von Haden, Mr. Donald May, and Mrs.
Donis Davey (FOE, et al.), and Intervenor Groups United Against Radiation Danger (GUARD).
It also deals with the question of consolidation of certain parties and *a discovery time table.'
By our Memorandum and Order of October 26, 1977, the Licensing Board Established to Rule on Petitions for Inter vention (hereinafter referred to "Petition Board") found that FOE, et al., had a requisite interest in the environmental and health and safety aspects of the San Onofre facility.
The Petition Board also held that of FOE, et al.'s eleven contentions, at least Contention 4 was set forth with sufficient particularity and basis so as to comply with 10 CFR § 2.714.
Intervention was allowed.
810 2 2-8 0 47 9.
-2 Subsequent to that Order this Licensing Board was established and held a
prehearing conference on December 6,
1977, to hear arguments on contentions not previously accepted.
We consider first
- FOE, et al.'s and then GUARD's contentions seriatim.
FOE2 ET AL., CONTENTION 1 "1) The seismic design basis for SONGS 2 & 3 is inadequate to protect the public health and safety and does not comply with 10 CFR, Part 100, Appendix A, in that the earthquake which could cause the maximum vibratory ground motion has not been assigned as the safe shutdown earthquake."
Intervenor FOE, et al., argued that recent earthquakes and new discoveries of a new fault made by the California Energy Resources. Conservation and Development Commission indicate that a review of the seismic design basis for SONGS 2 & 3 is in order.
Applicants, Southern California Edison Company and San Diego Gas and Electric Company (Applicants) stated they would prefer the contention to read more narrowly and offered their own version of an acceptable contention.
Staff found FOE, et al.'s contention suitable for discovery purposes but suggested that it should be simplified and clarified at the close of discovery (Tr. 546-47).
The Licensing Board is comprised.of the same members that served on the Petition Board.
3 The Board finds Intervenor FOE, et al.'s contention suitable for discovery purposes. After discovery the Board will consider parties' suggestion to limit the scope of this contention.
In light of new evidence concerning dewatering and cavities discovered as a result of dewatering, Intervenor
- FOE,
!t al., Staff, and Applicants agreed that a contention in this regard should be adopted and presented the following stipulated contention (Tr. 552) which is also agreeable to the Board.
la: "Whether the cavities caused by the Applicants' temporary dewatering of SONGS 2 & 3 site will have an unacceptable adverse effect on the capability of structures and equipment of the SONGS 2 & 3 to withstand the design basis seismic events."
FOE, ET AL., CONTENTION 2 FOE, et al.'s Contention 2 has been withdrawn (Tr. 570).
- 3.
"10 CFR 51.21 and 51.52(b) and NEPA require that the Applicants shall submit an Applicants' Environmental Report - Operating License stage and that such report contain the latest results of the ongoing marine study required under the coastal commission permit.
Joint intervenors are entitled to review both the AER-OLS and the Marine study at the operating license stage and may take a position and offer evidence concerning them."
This contention does not raise any factual issue and for this reason is disallowed.
FOE, et al., asserts that it only wants to preserve its right to challenge the adequacy of the Staff's FES should it fail to consi-er the California's Marine Review Committee Report (MRC)
(Tr.
601).
The Staff is required to consider all available information that is relevant and significant in preparing its Environmental Statement.
Failure to do so would appear to be a reasonable basis for challenge when the Statement is issued.
- 4.
"The Applicants have not complied with 10 CFR Part 50, Appendix E regarding emergency plans since because of the juris dictional diversity of the several state and local agencies involved and their in
)
adequate fundings and staffing, appropriate and coordinated emergency plans cannot be developed.
An operating license should not be granted for SONGS 2 & 3 because the various emergency response plans are so complex, overlapping, and difficult to implement that in the event of a nuclear accident the safety of persons in the surrounding areas will be imperiled."
The Board in its October 26, 1977, Order found that this contention was stated with sufficient particularity and basis to meet the requirements of 10 CFR § 2.714 and allowed inter vention on this basis.
-5 At the prehearing conference FOE, et al., offered a different wording of this contention.
Applicants and the Staff countered with separate versions of their own.
The Board is of the opinion that the contention as stated in FOE, et al.'s petition is acceptable for discovery purposes.
Parties will have an opportunity to ask for a refinement of this contention after discovery is completed.
CONTENTION 5 FOE, et al.'s Contention 5 is withdrawn (Tr. 644-65).
CONTENTION 6
- 6.
"Joint intervenors contend that the public health and safety, and the spirit and intent of 10 CFR, Part 50, Appendix C (l.B) require, as matter of law, that the applicant, prior to the issuance of an operating license, set aside adequate funds to cover the costs of permanent shutdown and maintenance of the facility in a safe condition at the termination of operations; the applicant has not done so, and intervenors contend that an operating license should not be granted absent such an undertaking."
At the prehearing conference FOE, et al., proposed a new wording of this contention:
"Applicant has not shown that it possesses or has reasonable assurances of obtaining the funds to -pay the estimated cost of operating the plant for the period of the license plus the estimated cost of perma nently shutting down the facility and main taining it in a safe condition."
FOE, et al., contends that "the only thing that would satisfy (regulations) at the minimum would be in the form of an escrow account to assure that the money will be there at the end of the useful life of the plant so that either the state or the governmen't or future ratepayers don't have to pay for it."
Section 50.33(f) deals with the financial qualifications of an applicant.
It provides in pertinent part:
"If the application is for an operating license, such information shall show that the applicant possesses the funds necessary to cover esti mated operating costs or that the applicant has reasonable assurance of obtaining the necessary funds, or a combination of the two."
The Regulation is amplified by Appendix C to 10 CFR Part 50 which sets forth guidance on the financial data required of license applicants.
Appendix C reads in pertinent part:
-7 it will ordinarily be sufficient to show at the time of the filing of the appli cation, availability of resources sufficient to cover estimated operating costs for each of the first five years of operation plus the estimated costs of permanent shutdown and maintenance of the facility in safe con dition.
It is also expected that, in most cases, the applicant's annual financial statements contained in its published annual reports will enable the Commission to evaluate the applicant's financial capability to satisfy this requirement."
The Regulations do not require, as FOE, et al., asserts the setting aside of funds for the ultimate decommissioning of the facility prior to the issuance of an operating license.
Since there is no such requirement, FOE, et al., has failed to establish the basis for its contention that Applicants should be required to "set aside" decommissioning and maintenance funds.
There is nothing unique about the San Onofre Nuclear Generating Station, Units 2 and 3 or of the Applicants, San Diego Gas and Electric Company and Southern California Edison Company which suggests that any different consideration should be given them than to other utilities. It is not uncommon for utilities to construct i.ore than one unit at the same site and it is not at all unusual for there to be more than one Applicant.
The question of the escrowing of funds at the time of licensing for the decommissioning is the subject of a rule making proceeding presently before the Commission.
FOE et al., has the option of participating in that proceeding.
Contention 6 is disallowed.
FOEJ9ET AL.qCNTENTION 7 FOE, et al.'s Contention 7 is withdrawn (Tr. 658).
CONTENTION 8
- 8.
"An operating license should not be granted for SONGS 2 & 3 because the National Environmental Policy Act, requires, as a matter of law, con sideration at the construction permit stage of D
energy conservation as an alternative to nuclear power and such requirements have not yet been complied with."
- FOE, et al., relies on Aeschliman v. U.S.
- NRC, 547 F2d
- 622, (1976),
as interpreting Sections 102(c)(116) and 102(d) of NEPA to require as a matter of law, the consideration by NRC and the Applicants of energy conservation as an alterna tive to the proposed nuclear facility.
That is not the holding of Aeschliman.
Aeschliman merely addressed the propriety of a test that was imposed by the Commission in
-9 a proceeding for a construction permit requiring a thresh hold showing by an intervenor before the issue could be brought up as an issue in controversy. It merely removed the threshbold test criterion previously established by the Commission.
Need for power and alternatives to the nuclear facilities were extensively considered at the construction permit stage.
Cf. Southern California Edison Company, et al., (San Onofre Units 2 &.3),
LBP-73-36, RAI 73-10, pages 958-59, 964-67 (1973). Furthermore, the projected generating capacity of San Onofre 2 & 3 has been included in all power forecasts for Applicants' service area since the construction permit was issued more than.four years ago. We take notice of the fact that the California Energy Commission has found need for at least one additional generating station (Sun Desert) for the area served by at least one of the utilities involved in this proceeding since the NRC's approval of the construction permit for San Onofre Units 2 & 3.
FOE, et al., has not stated any basis for consideration of conservation as an alternative to San Onofre, Units 2 & 3 in the operating license proceeding. FOE, et al.'s Contention 8 is disallowed.
10 FOEET AL.
CONTENTION 9
- 9.
"In light of accelerating costs of uranium, the decreased availability of domestic uranium and the lack of any guaran-tee that SONGS 2 & 3 will have a fuel supply, the cost-benefit analysis previously adopted for SONGS 2 & 3 is shown to be clearly erroneous and a proper cost-benefit analysis would now show that the costs outweigh the benefits and that the operation of SONGS 2 & 3 will not be in the best interest of the public and will not be in conformrnance with NEPA."
At the prehearing conference FOE, et al., reworded its contention to read:
"The Applicants' projection of fuel costs over the life of the plants does not adequately account for escalation of uranium prices and therefore the cost benefit analysis is in error."
Tr. 658.
Staff supports the rephrased contention; Applicants opposed vigorously the original contention and stand on their original argumient in spite of intervenors' new offer.
The Board believes that the contention is adequate for discovery purposes, and therefore Contention 9 as rephrased (Tr. 658) is allowed.
FOEJET AL., CONTENTION 10
- 10.
"As a matter of law, the National Environ mental Policy Act of 1969 requires that radioactive waste managemrent, a matter not fully considered prior to issuance of tle construction permit, be considered.prior to issuance of an operating license for SONGS 2 & 3."
- FOE, et al., contends that because San Onofre Units 2 and 3 are nuclear reactors that will generate nuclear waste materials, waste management procedures must be analyzed in detail before an operating license can be granted.
FOE,et al., cites Natural Resources Defense Council v. NRC 547 F.2d (D.C.
Cir.,
1976) as the basis for its position.
Waste management is covered by 10 CFR § 51. 2 0(c) as set forth in Table S-3.
In NRDC v. NRC the court examined the requirements imposed by NEPA to consider environmental impacts associated with the uranium fuel cycle and reviewed the Commission's rulemaking proceeding which had developed a generic analysis of those impacts.
With respect to the Commission's rulemaking the court approved the overall approach and I
methodology of the fuel cycle rule and found that, regarding most phases of the fuel cycle, the underlying Environmental
12 Survey of the Nuclear Fuel Cycle (November 1972) represented an adequate job of describing the impacts involved.
The court, however, found that the rule was inadequately supported by the record insofar as it treated the impacts from reprocessing of spent fuel and the impacts from radioactive waste management.
The Commission, in response to the court's action, issued a General Statement of Policy, 41 Federal Register 34707, and announced an intent to reopen the rulemaking proceeding on the environmental effects of the fuel cycle to supplement the existing record on waste management and reprocessing impacts.
The Commission indicated an intent to handle the question of the environmental impacts of waste management and reprocessing generically rather than in individual licensing proceedings.
On March 14, 1977, the Commission published its effective interim rule governing the treatment of waste management and reprocessing, 42 Federal Register 13803. The interim rule is to be effective pending determination of a final rule to result from the rulemaking proceeding.
The appropriate forum to raise questions regarding generic matters of waste management procedures is in the Commission's rulemaking.
FOE, et al.'s proposed Contention 10
13 is not a legitimate contention for consideration during the operating license proceeding.
It is disallowed.
- FOE, et al.'s Contention 11 is withdrawn (Tr. 664).
GUARD'S CONTENTIONS The Petition Board considered and granted the interven tion of the Groups United Against Radiation Danger (GUARD) in its Memorandum and Order of October 26, 1977.
GUARD's addenda to its-original petition was dated August 17, 1977, and set forth seven proposed contentions. Staff was of the view that collectively the seven contentions (each of which essentiall'y addressed the same matter, evacuation planning) could be reduced to two contentions.
The Petition Board agreed with Staff and accepted the two condensed contentions suggested by Staff.
They are:
- 1.
"The applicants have not complied with 10 CFR Part 50, Appendix E regarding emergency plans since, because of inadequate funding and staffing of the several state and local agencies involved, appropriate and coordinated emergency plans cannot be developed.
-14
- 2.
"As a consequence of increases in freeway use in recent years and the influx of transient and resident individuals into the exclusion area and low population zone, there is no longer assurance that effective arrangements can be made to control traffic or that there is a reasonable probability protective measures could be taken.on behalf of individuals in these areas including, if necessary, evacuation, particularly considering the unique geographic constraints in these areas; thus, applicants do not comply -with 10 CFR § 100.3(a) or (b)."
-a
- At the prehearing conference GUARD offered a rewording of its evacuation contention listing some eleven different aspects. Of these eleven items, somiie are mere statements which raise no issue of fact; some are contentions without ary supporting basis; some are contentions which challenge the Cornission's Regulations; some, especially #11 are issues that were taken into account at the construction permit stage going directly to site suitability, population center, growth, and distribution of population.
To the extent issues have been covered, they are res judicata, especially to this intervenor who participated as a party at the construction permit stage.
The Board is of the opinion that of the eleven items raised de novo at the prehearing conference the ones that are admissible are already embodied in the two contentions
- Board in its Order of ober 26, 1977.
Te Bcirc ill1 permit discovery on these a c~n!ntions, subject to airther refinement at the close dis'covery.
T additlion, Itcjrven c GUARD is entitled to conduct dicoc.>ry on the i.e
- I cavities which occurred as a result of d1atering.
That contention is listed above as FOE, et ql. 's Contenition la.
CUARD also seeks intervention on FOE's Contention 2 which qls -ith the PrY:ca Aderson Act.
GUARD wAs of the opinion bat It.could Lake part in cross--examination on that issue, but I.
111t FOr et al., has withdrawn that contention, GUARD seeks to aIdopt it as its own.
PutLing aside the question of timelir:
we consicIer the contention on its merits.
Tlh'e argumient -s that the decision in Carolina Environ S :u..idy Grcup v. United S tcts Atomic Energy Commission, 5'-.
5'pp. 103 (W.D.N.C.
- 19) declaring a portion of the Fi arse Act to be urr.
stitutional is grounds for
.g the T.
nce of tl4 Sa Oofre Units 2 and 3 operating se IV a fi it juicial interpretation is obtained and 7opgislative :ct-ion is completed.
16 However, the Carolina Environmental Study Grou
- v. AEC does not provide either a factual or legal basis for an issue in this proceeding.
The case is not binding in this jurisdiction, and it has no impact whatsoever on the existing Price-Anderson Act statutory scheme.
No injunctive relief was sought. in that case and none was given.
As recited by the Court (at page 226),
a single federal district court judge is without the power to enjoin the operation of an Act of Congress.
The court did not intend to impede the operation of the statu tory scheme pending Supreme Court adjudication.
The case is on direct appeal to the Supreme Court pursuant to 28 U.S.C.
( 1252.
Pending a judicial determination that actually impacts on the operation of the Price-Anderson Act the NRC licensing' procedures remain unaffected, and should not be modified for purposes of this proceeding.
There is no basis for an issue in this proceeding as a result of the Carolina Environmental Study Group v. United States Atomic Energy Commission decision.
17 CONSOLIDATION RE:
GUARD At the prehearing conference Applicants suggested that because GUARD has interests in this proceeding similar to FOE, et al., GUARD should be consolidated with FOE, et al.
The Board feels that the better procedure is to allow GUARD to have discovery in its own right on the issues it raised and which were accepted by the Board.
The Board will further consider the question of consolidation of intervenors at a subsequent prehearing conference.
RE-CITIES OF ANAHEIM AND RIVERSIDE By its Memorandum and Order of October 26, 1977, the Petition Board consolidated the Cities of Anaheim and Riverside (Cities) with the Applicants because the interest of the Cities is essentially the same as the Applicants'. This similarity is based on the Cities' prospective co-ownership of the facilities as a result of its formal notice of intent to accept the Applicants' offer pursuant to the terms and conditions of a settlement agreement.
At the prehearing conference Applicants objected to the consolidati6n of the Cities.
It appears that formal con su-mmation of the agreement has not yet materialized (Tr. 531).
18 At the prehearing conference counsel for the Cities represented that only the question of investment tax credit remains; the agreements themselves have been negotiated and will likely be executed early in 1978 (Tr. 532).
The investment tax credit matter involves a ruling by the U.S.
Internal Revenue Service (IRS) which is expected by mid-1978 at latest (Tr. 533).
The thrust of Applicants' position appears to be that 10 CFR § 2.715a provides for consolidation of parties only and, since the Petition Board dismissed the-Cities' petition for leave to intervene in its Order of October 26, 1977, they are not parties, hence, they cannot be consolidated.
The C-Applicants do suggest that at such time as the Cities become' parties, they may be consolidated. The Applicants concede that when the Cities are formally co-owners, they would become parties and would be consolidated with Applicants (Tr. 575).
In light of the cloud which has been placed on the co-ownership question and the uncertainty of its resolution the Licensing Board is of the opinion that it should stay the This, in our view, is a distorted interpretation of the Petition Board's Order. Its dismissal of the Cities' petition was predicated on the consolidation of the parties.
- 19 ruling consolidating the Cities with the Applicants until such time as the Applicants and/or Cities advise the Board of the outcome of the tax credit question and final resolution of the pending settlement agreement.
In the meanwhile, the Cities may participate in discovery.
DISCOVERY We have been advised that the Final Environmental Statement and the Safety Evaluation Report will not be available until mid-1978.
It appears that there is more than adequate time for discovery.
Discovery may begin on the accepted contentions and will continue until further notice of the Board.
Each party shall submit a report to the Board on or before June 30, 1978, setting forth the status of its discovery and its proposed schedule for completing discovery.
FOR THE ATOMIC SAFETY AND LICENSING BOARD John M. Frysiak-, Chairman Dated at Bethesda, Maryland This 27th day of January 1978.