ML17139A091
| ML17139A091 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 04/14/1981 |
| From: | Laverty J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| LBP-81-8, NUDOCS 8104160405 | |
| Download: ML17139A091 (81) | |
Text
UNITED STATES OF AMEPICA NUCLEAR REGULATORY COMMISSION
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Cgveihm BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PENNSYL>!ANIA POWER AiVD LIGHT CO.
AND ALLEGHENY ELECTRIC COOPERATIY"-, INC.
(Susquehanna Steam Electric Station, Units 1
and 2)
Docket iVo. 50-387 50-388 MOTION FOR DIRECTED CERTIFICATION OF THF. LICENSING BOARD'S ORDER DATED MARCH 16, 1981 pgQ7 5
y(
April ]4, 1981 gglkM'05 RID f'ILBQP7 Jessica H. Lavertv Counsel for VRC Staff
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
AND ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam-Electric Station, Units 1 and 2)
Docket No. 50-387 50-388 MOTION FOR DIRECTED CERTIFICATION OF THE LICENSING BOARD'S ORDER DATED MARCH 16, 1981 April 14, 1981 Jessica H. Laverty Counsel for NRC Staff
TABLE OF CONTENTS INTRODUCTION BACKGROUND JURISDICTION ARGUl1ENTS Summary of Arguments A.
Licens ing Board May Not Permi t Opposing Party to Rest on Here Allegations in its Answer to t1otion for Summary Disposition Supported by Affidavit B.
Licensing Board Does Not Have Discretion to f1ake Findings on Facts Which Are Controverted in Context of 1otion for Summary Disposition C,
Licensing Board Finding of Fact Rests on Non-Record Haterial in Contravention of APA
~Pa e
14 17 CONCLUSION 20
TABLE OF CITATIONS Cases Sartor v. Arkansas Natural Gas
- Company, 321 U.S.
- 620, 627 (1944)
~Pa e
17 Vermont Yankee Nuclear Power Corporation v.
NRC, 435 U.S.
- 519, 553-54 (1978) 12 tiarathon Oil v.
- EPA, 564 F.2d 1253 (9th Cir.
1977) 19 NRC Cases Baltimore Gas
& Electric Company (Calvert Cliffs Nuclear Power Plant),
4 AEC 243, 244 (1969)
Carolina Power
& Light Company (Shearon Harris Nuclear Power
?lant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514, 517 (1980) 13 12 Carolina Power
& Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), ALAB-577, 11 NRC 18, 25 (1980) 13 Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753-54 (1977)
Consumers Power Company (Nidland Plant, Units 1 and 2),
ALAB-534, 13 NRC (February 19, 1981)
Gulf States Utilities Company (River Bend Station, Units 1
and 2), LBP-75-10, 1
NRC 246, 248 (1975) 17 16 Houston Lighting
& Power Company (Aliens Creek Nuclear Generating Station, Unit 1), ALAS-635, 13 NAG
{liarcn 10, 1981) 9 Houston Lighting & Power Company (Aliens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 554 (1980) 20 Louisiana Power
& Light Company (Waterford Steam Electric Generating Station, Unit 3), ALAB-220, 8 AEC 93, 94 (1974)
Pennsylvania Power
& Light Company (Susquehanna Steam Electric
- Station, Units 1 and 2), LBP-81-8, 13 NRC (March 16, 1981) passim Pennsylvania Power
& Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 340 (1980)
Public Service Company of Indiana (Marble Hill Nuclear Generating Stations, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71
{1976)
Public Service Company of New Hampshire (Seabrook, Units 1 and 2), ALAB-271, 1
NRC 478, 482-83
{1975) ll 12 13
REGULATIONS 10 C.F.R. Part 2
10 C.F.R.
5 2.202 10 C.F.R.
g 2.206 10 C.F.R. 55 2.714(a) 10 C.F.R.
gg 2.718(i) 10 C.F.R. 5 2.749 10 C.F.R. 5 2.760a STATUTES Administrative Procedure Act, as
- amended, 5 U.S.C.
551 et
~se Atomic Energy Act of 1954, as
- amended, 42 U.S.C.
2011 et
~se 111
UNITED STATES OF Af1ERICA NUCLEAR REGULATORY C01 151ISS ION BEFORE THE ATONIC SAFETY AND LICENSING APPEAL BOARD In the Patter of (PENNSYLVANIA POWER AND LIGHT CO.
AND ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station, Units 1 and 2)
Docket No. 50-387 50-388
.,OTION FOR DIRECTED CERTIFICATION OF THE LICENSING BOARD'S ORDER DATED MARCH 16, 1981 I.
INTRODUCTION On November 6, 1980, Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc. (Applicants) moved the Atomic Safety and Licensing Board (Licensing Board) for summary disposition in Applicants'avor of that portion of Contention 2 which dealt with chlorine.
On December 2, 1980, the NPC Staff (Staff) filed a 1/
substantive answer supporting Applicants'otion.
On March 16,
- 1981, the Board issued its ruling on this motion and as well as on another motion for summary disposition. In its Order, the Board made two 3/
1/
"Applicants'otion for Summary Disposition of Contention 2
(Chlorine)" dated November 6, 1980.
2/
"NRC Staff Answer in'Support of Applicants'otion for Summary Disposition of Contention 2 (Chlorine)" dated December 2,
1980
[hereinafter referred to as Staff Answerj.
3/
Pennsylvania Power and Light Co.
(Susquehanna Steam Electric Station, Units 1 and 2), LBP-81-8, 13 NRC (l1arch 16, 1981).
findings of fact based on statements lacking an evidentiary basis which were set forth in a motion filed by Intervenor Citizens Against Nuclear Dangers (CAND).
Furthermore',
certain "facts" in these Board findings were not 4/
asserted by CAND nor are otherwise a part of the record of this proceeding.
The effect of these erroneous rulings is to impose unnecessary and unusual delay and expense in the form of staff responses to respond to issues which do not require further adjudication.
Thus, the Staff seeks directed certi-fication of the Licensing Board's rulings pursuant to 10 C.F.R. 5 2.718(i) and Public Service Com an of New Ham shire (Seabrook Units 1 and 2),
ALAB-271, 1
NRC 478, 482-83
( 1975),
and requests that the Atomic Safety and Licensing Appeal Board (Appeal Board) reverse the ruling of the Licensing Board to the extent that it relies upon:
( 1) unsworn allegations set forth by the intervenors in opposition to the Applicant's Motion for summary disposition and (2) information not properly a part of the record in this proceeding.
Specifically, the Board's ruling should be reversed to the extent that it requires the Staff to address at the hearing the issues of the CEO study and the "ethanol facility." Further, the Staff requests that findings 4 and 6 be stricken from the record.
II.
BACKGROUND On November 6, 1980, Applicants filed a motion for summary disposition of that part of Contention 2 which alleged that the health effects of chlorine discharged into the Susquehanna River had not been adequately 4/
"Citizens Against Nuclear Dangers Petition and Motions on Summary Disposition" dated November 24, 1980 [hereinafter referred to as CAND Motion3.
assessed (Applicants'otion).
In this motion, Applicants asserted that the sponsor of this segment of Contention, 2, CAND, had limited the contention's scope through its discovery responses.
In those responses, CAND had indicated that it believed the health effects of chlorine had been inadequately assessed because Applicants would be compelled to use more chlorine than stated in the application due to
( I) "planned government endorsed large-scale mining of anthracite coal commencing in the near future" which would necessitate the "continual pumping of billions of gallons of mine acid drainage into the Susquehanna" and (2) "the Butler Mine ltater Tunnel waste chemical spills into the Susquehanna."-
CAND asserted that Applicants would have to use "chlorine to demineralize and clarify the polluted river water for plant use."-
In support of its motion, Applicants attached an affidavit which 7/
stated that chlorine is used to arrest the growth of slime-forming biolife on equipment surfaces and to disinfect the potable water supply and the sewage effluent.
The affidavit further stated that mine acid 8/
drainage and toxic chemical wastes in the Susquehanna River would not increase the rate of growth of slime-forming biolife on equipment surfaces nor change the amounts of chlorine required for disinfection.
9/
5/
"Applicants'rief in Support of Motion for Summary Disposition of Contention 2 (chlorine)" dated November 6, 1980 at 2-4.
6/
"Citizens Against Nuclear Dangers Motions and Replies to Interrogatories Nos. 2, 16 and 17" dated April 29, 1980 at 4-5 (emphasis deleted).
7/
Id. at 5.
8/
"Affidavit of James Rios in Support of Summary Disposition of Contention 2 (Chlorine)" dated November 4, 1980.
9/
Id. at 2.
On December 2, 1980, the Staff filed its answer in support of Appli-cants'otion (Staff Answer).
In its answer, the Staff concluded that the chlorine part of Contention 2, when read as limited by CAND's discovery response, presented no genuine issue of material fact. The 10/
Staff further concluded that the broader question of whether the health effects of the chlorine to be discharged had been adequately addressed also presented no genuine issue of material fact. The Staff attached 11/
to its response an affidavit which stated that the biotic content of the plant's influent water would tend to decrease under the conditions described in CAND's discovery response because acid mine drainage would decrease the biological productivity of-the receiving water through direct toxic action on the biota and through indirect actions such as depletion of dissolved oxygen.~
While the Staff could not make a
gp/
judgment about the need to alter the chlorination level without specific information on the particular toxic chemicals
- present, the affidavit stated that chlorination is not generally used to remove toxic chemicals from water.
13/
On December 2,
1980, the Staff received a
CAND motion, dated Novem-ber 24,
- 1980, which alleged that CEg would publish later in the year new studies showing relationships between cancer rates and chlorinated com-pounds in drinking water at levels below those permitted by the Safe 10/
Staff Answer at 2.
11/
Id.
12/
"Affidavit of John C, Lehr" dated December 2, 1980 at 3 [hereinafter referred to as Lehr].
Drinking 'llater Act.
The CAND motion also alleged that an ethanol 14/
production facility would be built in Nanticoke Industrial
- Park, 15 miles upstream of the Susquehanna facility, and that this facility would discharge liquid wastes which would cause a substantial increase in the growth of slime-forming biolife in the river that would necessi tate an increase in chlorination at the plant.
15/
On December 9, 1980, the Board invited all opponents of Applicants'lotion to file responses to new facts and arguments presented in the Staff Answer.
On January 7, 1981, CAND responded, indicating it did 16/
not have time to refute Applicants'r Staff's data./
Neither of CAND's motions was accompanied by affidavits.
On March 16,
- 1981, the Licensing Board granted in part and denied in part Applicants'otion for summary disposition of that portion of Con-tention 2 which dealt with chlorine. The Board concluded that neither 18/
acid mine drainage nor toxic chemical pollutants would increase the use of chlorine at the Susquehanna facility. Thus, the Board made three 19/
findings of fact based on Applicants'nd the Staff's affidavits.
20/
14/
CAND Hotion at 2.
15/
Id. at 3.
16/
"Order" dated December 9,
1980.
17/
"Citizens Against Nuclear Dangers'otion and Responses Concerning Summary Disposition" dated January 7,
1981 at 1.
18/
Pennsylvania Power and Light Co.
(Susquehana Steam Electric Station, Units 1 and 2), LBP-81-8, 13 NRC (triarch 16, 1981) (slip opinion at 1.)
19/
Id. at 11-12.
20/
Id. at 10.
Next, the Hoard evaluated CAND's January 7 filing, noting its failure to present material or substantial facts to support its allegation or to controvert the facts advanced by Applicants and the Staff. In a footnote, the Board noted that "to the extent that either 21/
of CAND's responses
[includej any facts at all, they were not presented through affidavits." While the Board stated that it had apprised CAND of the need to supply factual material by affidavit, it decided nevertheless to give'"due account to such information as has been provided. Thus, the Board decided not to preclude adiudication of 23/
the chlorine portion of Contention 2 to the extent that the CEg study might include health effects relevant to the Susquehanna facility and to the extent that the parties had not addressed the "need for chlorination caused by the discharge into the Susquehanna River of liquid wastes from the proposed ethanol production facility."~
21 Id. at 8.
22/
Id. at 8 n.l7.
23/
Id.
This Board action directly conflicts with section 2.749(b) of ttte Commission's Rules of Practice which govern this proceeding.
That section provides in pertinent part:
When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of his answer, his answer by affidavits or as otherwi se provided in this section must set forth specific facts showing that there is a
genuine issue of fact.
See notes 65-68 and accompanying text.
24/
Id. at 9 and 10.
The Board made five additional findings of fact. Finding 4 stated that "organic waste from an ethanol production facility could, if released into the Susquehanna River, provide nutrients which would increase the rate of growth of biofouling organisms and necessitate a
greater than expected use of chlorine by the power plant. This 26/
finding rests on allegations, not supported by affidavit, in CAND's motion (i.e., that an ethanol production facility has been
- proposed, that it would be located upstream from the facility, that it would discharge liquid waste, and that this waste would increase the rate of growth of biofouling organisms),
and contains facts not asserted by CAHD and not a
'art of the record of this proceeding (i.e., that the liquid waste purportedly to be discharged will be ~or anic and that it will ~rovide nutrients to increase the growth rate of biofouling organisms).
Finding 6
similarly rests on CAND's unsupported motion, stating that "no assessment of health effects of c'hlorine use at higher than anticipated levels, such as might be required if organic waste from an ethanol plant were released into the river upstream from the Berwick plant, has been made." In effect, the Board is stating a
need for an additional assessment of health effects from chlorine at higher levels of use based on an ethanol plant which may or may not he proposed, which may or may not be built, which may or may not be located
- upstream, and which may or may not affect levels of chlorine in the facility.
The level of chlorine use which the 25/
Id. at ll.
26/
Id.
~27 Id.
Board believes should be evaluated due to the presence upstream of an ethanol production facility is not stated.
III.
JURISDICTION A.
The Appeal Board Should Undertake Discretionary Interlocutory Review in Order to Prevent Unusual Dela or Ex ense While Licensing Board denials of motions for summary disposition are, in
- general, interlocutory and thus not appealable as a matter of right, 28/
Appeal Board review of such rulings should be undertaken on certification before the end of the case if a failure to address the issue would
( 1) seriously harm the public interest, (2) result in unusual delay or
- expense, or (3) affect the basic structure of the proceeding in some pervasive or unusual manner.~
In this case, the Appeal Board should 29/
undertake discretionary interlocutory review of the Licensing Board's denial of Applicants'otion for summary disposition of the chlorine portion of Contention 2, and of the Staff's supporting
- answer, in order to prevent the unusual delay and expense caused by the Licensing Board's ruling.
The Board's ruling will cause unusual delay and expense
- because, as a result of it, both Applicants and the Staff must be prepared at the hearing to litigate the effects a possible ethanol plant might 28/
10 CFR 5 2.730(f); Louisiana Power and Light Co. (Waterford Steam Electric Generating Station, Unit 3), ALAB-220, 8 AEC 93, 94
( 1974).
29/
Consumers Power Co. (Nidland Plant, Units 1 and 2), ALAB-634, 13 NRC (February 19, 1981) (slip opinion at 4).
have on the level of chlorine use at the Susquehanna facility.
An attempt to determine such effects, if any, will force Applicants and the Staff to engage in the very speculative and time-consuming task of pre-dicting whether an ethanol plant will be built, where and when it will be built, what types of waste will be discharged by it, what limits will be imposed on the plant's discharge by pertinent regulatory agencies, what amounts will remain after dispersal by the Susquehanna
- River, and what impact the diluted discharges will have on the Susquehanna facility.
This unusual delay and expense is all the more extraordinary in that the Board ruling which creates it relied upon information that is speculative and without evidentiary support.
Ordinarily, when an inter-venor attempts to raise new contentions out of time, it must meet the standards of section 2.714(a). Here, however, without requiring the 31/
30/
See also Houston Lighting and Power Co. (Aliens Creek Nuclear Generating Station, Unit 1), ALAB-635, 13 NRC (March 10, 1981).
This case states a slightly different test for determining when a
discretionary interlocutory appeal should be granted when the ruling below either
( 1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a
practical matter, could not be alleviated by a latter appeal or (2) affected the bas'ic structure of the proceeding in a pervasive or unusual manner.
(Slip opinion at 2.)
The Staff believes that the facts set out in the above text show that its appeal satisfies the requirements of the first test.
If the Staff is forced to expend the resources necessary to address at a hearing the contention as broadened by the Board, the Staff will have been immediately and irreparably harmed.
As a practical matter, a reversal of the Board's ruling after a hearing on the expanded contention would not alleviate this harm.
31/
That section provides in pertinent part:
(Footnote continued on next page) showing mandated by section 2.714(a), the Board directed Applicants and 32/
the Staff to assess the health effects of chlorine at a level of use that is higher than that stated in Applicants'pplication on the basis of unsupported statements in a
CAND motion.
31/
(Footnote continued from previous page)
Nontimely filings will not be entertained absent a determina-tion by the Commission, the presiding officer or the atomic safety and licensing board designed to rule on the petition and/or request, that the petition and/or request should be granted based upon a balancing of the following factors in addi tion to those set out in paragraph (d) of this section:
(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner's interest will be protected.
(iii)
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the petitioner's interest will be represented by existing parties.
(v)
The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
32/
The Board does not explain why it chose to follow a course of action here different from that it took in ruling on Contention 16 (cooling tower dishcarge) which was also ruled on in this Order.
- There, when the Board was presented with CAND's allegations of new information, the Board properly noted that, while such information might be the basis of a contention, it would not consider the information absent the showing required by 10 C.F.R. 5 2.714(a) for a late-filed contention.
Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), LBP-81-8, 13 NRC (March 16, 1981) (slip opinion at 18).
Yet, when CAND alleged new information concerning Contention 2, the Board gave no legal basis for not requiring a similar showing.
- Instead, the Board stated:
"CAND could be correct."
Id. at 9.
33/
Id. at 12.
The Board's ruling does not suggest that CAND's allega-tions would otherwise raise a serious safety, environmental or common defense and security matter warranting examination in this proceeding.
10 C.F.R. 5 2.760a.
In any event, if such a facility were to come into existence, any member of the public or the Staff could take appropriate action pursuant to 10 C. F.R.
55 2.202 and 2.206.
That such a course is unwi se is supported by the latest information which the Staff has been able to secure about the ethanol plant.
In a March 3, 1981 Wilkes-Barre Times-Leader news article, the Staff learned that the ethanol plant presumably referred to by CAND in its Motion did not receive Federal approval of the
$ 90 million in loan guarantees for which it had applied.
While the Staff is not asserting that this newspaper article reliably and probatively indicates whether the referenced ethanol plant will or will not be built or even whether the company
- was, in fact, denied approval of its requests for Federal loan guarantees, the Staff does assert that this illustrates why such Board action is unusual and procedurally unsound.
B.
The Appeal Board Should Undertake Discretionary Interlocutory Review Because the Licensing Board's Ruling Affects the Basic Structure of the Proceedin in a Pervasive and Unusual Manner The Appeal Board should undertake discretionary interlocutory review of the Licensing Board's ruling because the ruling affects the basic structure of the proceeding in a pervasive and unusual manner. Find-34/
ings of fact based on non-evidentiary and non-record material are contrary to the very nature of this adjudicatory proceeding as defined by the Administrative Procedure Act(APA), the Atomic Energy Act (AEA),
35/
36/
34/
Houston Lighting and Power Co. (Aliens Creek Nuclear Generating
- Station, Unit No. 1), ALAB-635, 13 NRC (March 10, 1981) (slip opinion at 2).
35/
5 U.S.C.
55 551 et ~se 36/
42 U.S.C.
55 2011 et ~se and the Commission's Rules of Practice.
Such findings significantly 37/
affect the proceeding's basic structure because they conflict with greater procedural
- rights, and therefore, procedural protection afforded the parties to adjudicatory proceedings.
Parties to an adjudicatory proceeding, in contrast to those submitting written or oral statements in an informal hearing, are entitled to employ the legal tools of discovery, summary disposition,
- subpoena, submission of evidence for the record, receipt of evidentiary rulings thereon, and cross-examination.
38/
Accompanying these legal rights is the legal duty to comply with the rules governing adjudicatory proceeedings which permit these greater procedural rights.
Concomitantly, parties are entitled to expect that 39/
those presiding over adjudicatory proceedings (here the Licensing Board) will also comply with the rules governing the proceeding.
40/
For example, the Commission's Rules provide that a party opposing a
motion for summary disposition supported by affidavits.may not rest upon mere allegations.
10 C.F.R. 5 2.749(b).
The Board not only permitted 37/
38/
Compare 5 U.S.C.
5 556 and 5 557 with 5 U.S.C.
5 553.
39/
See Vermont Yankee Nuclear Power Corp. v.
NRC, 435 U.S.
- 519, 553-54 (1978); Pennsylvania Power and Light Co.(Susquehanna Steam Electric
- Station, Units 1 and 2), ALAB-613, 12 NRC 317, 340 (1980).
40/
Licensing Boards possess only such powers as have been conferred upon them by the Commission either by regulation or otherwise ~e.
in the notice of hearing for the specific proceeding or by adjudicatory order).
Carolina Power and Light Company (Shearon
( Footnote continued on next page)
CAND to rest on mere allegations, it held that these allegations controverted sworn statements of fact and it made findings of fact based on these unsupported allegations.~
Such findings of fact violate 411 section 556(d) of the APA which states that an order, such as the decision made by the Licensing Board here, must be supported by reliable, probative, and substantial evidence. Such Board actions seriously 42/
alter the basic structure of the proceeding because they call into 40/
(Footnote continued from previous page)
Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, ll NRC
- 514, 517 (1980); Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), ALAB-577, ll NRC 18, 25 (1980); Public Service Company of Indiana (h1arble Hill Nuclear Generating
- Stations, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71
( 1976).
The Commission clearly has not delegated to the boards the authority to amend the rules of procedure on a case-by-case basi s.
As the Commission noted in Baltimore Gas and Electric Com an (Calvert Cliffs Nuclear Power Plant 4
AEC 243, 244 1969 Our licensing regulations - which are general in their application and which are considered and adopted in public rule making proceedings wherein the Commission can draw on the views of all interested persons
- are not subject to amendment by boards in individual adjudicatory proceedings.
Here, contrary to the express directions of the Commission's
- Rules, the Board permitted CAND to rest on mere allegations in its response to motions for sumary disposition supported by affidavits.
41/
Pennsylvania Power and Light Co.
(Susquehanna Steam Electric
- Station, Units 1 and 2), LBP-81-8, 13 NRC (March 16, 1981)
(slip opinion at 12).
42/
5 U.S.C.
5 556(d).
question which, if any, rules govern the proceeding and whether a party must comply with the Commission's Rules.
llhen a Board thus unilaterally changes the rules on an ad hoc basis, uncertainty permeates the entire proceeding.
The Appeal Board should review and reverse the Board's ruling because findings of fact based on non-evidentiary and non-record material affect this proceeding's basic structure in a pervasive and unusual manner.
IV.
ARGUMENTS A.
Licensing Board Hay Hot Permit Opposing Party to Rest on there Allegations in its Answer to Motion for Summary Disposition Su orted b
Affidavit Section 2.749 of the Commission's Rules of Practice sets forth the procedures by which a party may move to summarily dispose of all or part of the matters involved in the proceeding and by which another party may effectively oppose such a result.~
This section further authorizes the 431 presiding officer (here the Licensing Board) to rule on such motions and, when consistent with the standards set forth, to dispose of certain issues on the pleadings. The Commission's summary disposition procedures 44/
incrementally increase or decrease the procedural burden of an 43/
10 C.F.R. 5 2.749.
44/
10 C.F.R. 5 2.749(d).
opposing party in accordance with the quality of evidence relied on by a moving party.
According to section 2.749(a),
any party may move, with or without su ortin affidavits, for a decision by the presiding officer in that party's favor.
Similarly, any other party may serve an answer opposing the motion, with or without affidavits.
Section 2.749(b),
- however, provides that "when a motion for summary decision is made and
~sn orted as provided in this section, a party opposing the motion ma not rest u on the mere alle ations or denials of his answer."
This section provides that a motion for summary decision may be supported by affidavits which set forth facts that would be admissible in evidence and which show affirmatively that the affiant is competent to testify to the matters stated therein and by affidavits supplemented by depositions, answers to interrogatories, and further affidavits.
Thus, until a moving party supports its motion with affidavits or with supplemented affidavits, an opposing party is free to rest upon mere allegations or denials in its answer.
Once such a motion is supported as provided,
- however, an opposing party's "answer by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact."
10 C.F.F.
5 2.749(b).
This section defines "or as otherwise provided in this section" by stating that "[tjhe presiding officer may permit affidavits to be
. opposed by depositions, answers to interrogatories, or further affidavits."
10 C.F.R. 5 2.749(b).
Although an opposing party may support its answer by stating that "he cannot, for reasons
- stated, present by affidavit facts essential to justify his opposition," these statements also must appear in an affidavit.
10 C.F.R. 5 2.749(c).
In sum, then, if a motion for summary disposition is supported by affidavits, an opposing party's answer must be supported by affidavits, depositions, or answers to interrogatories.
In the instant case, Applicants filed a motion for summary disposition of part of Contention 2 and supported this motion by affidavit.
The Staff filed an answer in support of Applicants'otion, also supported by affidavit.
In response, CAND filed a motion which contained allegations, unsupported by affidavits, depositions, or answers to interrogatories.
The Board, in clear contravention of the Commission's summary disposition rule, permitted CAND to rest on these mere allegations, ordering consideration of the two issues raised by CAND in its motion as new issues to be taken up at the hearing. In effect, the Board permitted CAND to controvert the facts established by Applicants and the Staff on the basis of non-evidentiary material, despite the Rule's express proscription against reliance on such material in these circumstances.
The Appeal Board should therefore reverse the ruling of the Licensing Board to the extent that it relies upon unsworn allegations and to the extent that it requires the Staff to address at the hearing the issues 45/
Pennsylvania Power and Light Co.
(Susquehanna Steam Electric
- Station, Units 1 and 2), LBP-81-8, 13 NRC (Harch 16, 1981)
(slip opinion at 12).
46/
The Board's action was also inconsistent with Commission practice.
In Gulf States Utilities Com an (River Bend Station, Units 1 and 2), LBP-75-10, 1
NRC 246, 248 1975), the Licensing Board held that an opposing party must present facts in proper form in order to defeat a
summary disposition motion.
An opposing party's facts must be material and substantial, not fanciful or merely suspicious.
of the CEg study and the "ethanol facility." Further, it should strike Findings 4 and 6.
B.
Licensing Board Does Hot Have Discretion to Make Findings on Facts Which Are Controverted in Context of Motion for Summary Dis osition Section 2.749(d) states that the "presiding officer shall render the decision sought if the filings in the proceedings
. together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law."
- Thus, under the Commission's
- Rules, a presiding officer may grant summary disposition
~onl when the materials properly before him show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.
When the presiding officer (here the Licensing Board) decides that one or more genuine factual issues exist, he may not grant summary judgment. Similarly, as a denial of summary judgment 47/
indicates that a genuine factual issues
- exists, the Board may not, as a
part of that denial, make findings on that genuine factual issue.
This is so because the Board's action indicates, that the facts are indeed controverted and must be resolved on the basis of an evidentiary record adduced at a hearing.
47/
Sartor
- v. Arkansas Natural Gas Co.,
321 U.S.
- 620, 627 (1944);
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753-54 (1977).
In the present
- case, both Applicants and the Staff set forth material facts in affidavits as to which these parties contended there were no genuine issues to be heard.
In response, CAND alleged "facts" which it argued controverted those set forth by Applicants and the Staff.
The Board denied Applicants'nd the Staff's motions on the basis of its conclusion that the facts set forth by these parties had been contro-verted by CAND. At that point in its decision-making
- process, the 48/
Board, consistent with the Rules of Practice, had the power to do no more than deny Applicants'nd the Staff's motions.
Instead it issued a ruling which, not only permitted CAND to rest on mere allegations and to controvert sworn facts on the basis of these unsupported allegations, but also made findings on facts it had just concluded were controverted. The Appeal Board should, therefore, reverse the ruling of the Licensing Board to the extent that it relies upon unsworn allegations and to the extent that it requires the Staff to address at the hearing the issues of the CEg study and the "ethanol facility." Further, the Appeal Board should strike findings 4 and 6.
C.
Licensing Board Finding of Fact Rests on Non-Record tiaterial in Contravention of APA Section 556(e) of the APA states "that the transcript of testimony and exhibits, together with all papers and requests filed in the proceed-ing, constitutes the exclusive record for decision...."
5 U.S.C.
5 556(e);
48/
Pennsylvania Power and Light Co.
(Susquehanna Steam Electric
- Station, Units 1 and 2), LBP-81-8, 13 NRC (Harch 16, 1981)
(slip opinion at 10-12).
49/
Id.
t1arathon Oil v.
- EPA, 564 F.2d 1253 (9th Cir. 1977).
The APA further provides that when an agency decision rests on official notice of a material fact not appearing in the evidence in the record, an opportunity must be provided to a party opposing that agency decision upon request.
5 U.S.C.
5 556(e).
In this case, CAND alleged that an ethanol production facility would discharge li<iuid wastes which wou1d cause a substantial increase in the growth of slime-forming biolife in the river that would necessitate an increase in chlorination at the plant.
Neither Applicants nor the 50/
Staff responded to this statement as section 2.749 does not provide, as a
matter of right, an opportunity to respond to an opposing party's answer to a summary disposition motion.
While CAND had alleged only that the waste discharged by the proposed ethanol plant would be ~li uid, the Board found in finding four that the waste would be ~or anic. The goard 51/
then supplied another link between CAND's allegation that an ethanol plant would discharge liquid waste and its allegation that this would increase the rate of growth of slime-forming biolife..
CAND had not indicated how an increase in growth rate would be achieved.
The Board supplied this missing information by finding that organic waste from an ethanol production facility could rovide nutrients which would increase 50/
CAND f1otion at 3 (emphasis added).
This motion was written after Applicant's t1otion had been served.
Applicants'otion explained why chlorine will be used at the facility, noting that "the purposes for chlorinating the various water systems in the Susquehanna facility is to arrest the cumulative growth of slime-forming biolife on equipment surfaces...."
Rios at 2.
51/
Pennsylvania Power and Light Co.
(Susquehanna Steam Electric
- Station, Units 1 and 2), LBP-81-8, 13 NRC (March 16, 1981)
(slip opinion at 11).
the rate of biofouling organisms.
/
- Thus, the Board supplied two material facts which are not a part of the record of this proceeding in order to support its findings.
This action is contrary to the require-ments of the APA and should be reviewed and reversed by the Appeal Board. Findings 4 and 6 should be stricken by the Appeal Board.
53/
V.
CONCLUSION For the reasons stated
- above, the Staff urges that the Appeal Board review LBP-81-8 and reverse the Licensing Board's ruling to the extent that it relies upon (I) unsworn allegations set forth by the intervenors I
in opposition to the Applicants'otion for summary disposition and (2) information not properly a part of the record in this proceeding.
Specifically, the Board's ruling should be reversed to the extent that it requires the Staff to address at the hearing the issues of the CEg study and the "ethanol facility."
Furthermore, it should strike findings 4 and 6.
Respectfully submitted, 7p
. ~~>~'<hg/i essica H. Laverty Counsel for NRC Staff Dated at Bethesda,
- Maryland, this 14th day of April, 1981 52/
Id.
53/
The Staff notes that in an analogous situation a member of the Appeal Board was not permitted to rely on his personal expertise in order to hold that the basis for a proposed contention was unrealistic and frivolous on its face.
Houston Lighting and Power Co. (Aliens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 554 (1980).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station, Units 1
and 2)
)
Docket No. 50-387 50-388 CERTIFICATE OF SERVICE I
I hereby certify that copies of "MOTION FOR DIRECTED CERTIFICATION OF THE LICENSING BOARD'S ORDER DATED MARCH 16, 1981," dated April 14,.1981, in the above-captioned proceeding, have been served on the following, by deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 14th day of April, 1981:
- Richard S. Salzman, Esq.,'hairman, Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr. John H. Buck, Member, Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Mr. Thomas S. Moore,
- member, Administrative Judge Atomic Safety and Licensing Appeal Board'.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Jay Silberg, Esq.
Shaw, Pittinan, Potts and Trowbridge 1800 M Street, N.W.
Washington, D.C.
20036 Bryan A. Snapp, Esq.
Pennsylvania Power 8 Light Company Two North Ninth Street Allentown, Pennsylvania 18101 Dr. Judith H. Johnsrud Co-Director Environmental Coalition on Nuclear Power 433 Orlando Avenue State
- College, Pennsylvania 16801 r
Mr. Thomas M. Gerusky, Director Bureau of Radiation Protection Department of Environmental Resources Commonwealth of Pennsylvania P. 0.
Box 2063 Harrisburg, Pennsylvania 17120 Ms. Colleen Marsh Box 538A, RD84 Mountain Top, Pennsylvania 18707 Hr. Thomas J. Halligan Correspondent:
CAND P. 0.
Box 5
- Scranton, Pennsylvania 18501
James P. Gleason, Chairman Administrative Judge 513 Gilmoure Drive Silver Spring, Maryland 20901
+i/r. Glenn 0. Bright, Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. Paul W. Purdom, Administrative Judge 245 Gulph Hills Road
- Radnor, Pennsylvania 19087 "Atomic Safety 8 Licensing Board Panel'.S.
Nuclear Regulatory Commission, Washington, D.C.
20555 "Atomic Safety 5 Licensing Appeal Board
'anel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Secretary U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing 5 Service Branch Washington, D.C.
20555 Susquehanna Environmental Advocates c/o Gerald Schultz, Esq.
P. 0.
Box 1560 Wilkes-Barre, PA 18703 Hr. Robert H; Gallo Resident Inspector P. 0.
Box 52 Shickshinny, Pennsylvania 18655 Robert W. Adler Department of Environmental Resources 505 Executive House P. 0.
Box 2357 Harrisburg, Pennsylvania 17120
00 C
9
~o ~p~
~y'P 0-4e In the Matter of I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISS ION
)
)
)
)
)
)
)
PENNSYLVANIA POIIER AND LIGHT CO.
ALLEGHENY ELECTRIC COOPERATIVE, INC I
(Susquehanna Steam Electric Station, Units 1 and 2)
Docket Nos.
50-387 50-388 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 05/21(79 NRC STAFF'S FIRST ROUND DISCOVERY RE(UESTS OF THE SUS UEHANNA ENVIRONMENTAL ADVOCATES SEA As allowed by 10 CFR 2.740b of the Commissions regulations and the Licensing Board's Special Prehearin Conference Order dated March 6, 1979, the NRC Staff requests that SEA answer the interrogatories set forth below'.~
As required by 10 CFR 2.740b(b),
each interrogatory
, 1i shall be answered separately and fully, in writing and under oath or affirmation, and the answers shall be signed by the person(s) making them.
In addition, as allowed by 10 CFR 2.741, the NRC Staff requests that SEA make available for Staff inspection and copying (or provide copies of), those documents designated by SEA in its answers.~
The answers are to be provided by June 29, 1979, as required by the Licensing Board's S ecial Prehearin Conference Order dated March 6, 1979 (at p.
79 Of course, if the document was prepared by the NRC Staff or its 2/
consultants, or was submitted by the Applicant in connection with the captioned matter, it need not be made available by.
SEA.
3/
General Interro atories G-1.
State whether you intend to present any expert witnesses on the subject matter at issue in:
.a) Contention 1
b) Contention 3
c) Contention 4
f) Contention 10 g) Contention h) Contention 15 d) Contention 6
e) Contention 9
If so, provide the names, addresses (residence and business),
and pro-fessional qualifications of those persons you expect to call as expert witnesses, state the subject matter on which the expert is expected to testify, state the substance of the facts and opinions to which the expert is expected to testify and provide a
summary of the grounds for each opinion.
G-2.
Identify by title, author, date of issuance or publication, and issuer or publisher, all documents that you intend to use (refer to or offer in evidence) in presenting your direct case on the contentions listed in Interrogatory G-1 and all documents that you intend to refer to in conducting your cross-examination of witnesses for other parties who may
,testify in connection with any admitted contention, and make available those documents for Staff inspection and copying (or provide copies of'hem).
These interrogatories should be answered seDarately with respect to each contention.
S ecific Interro atories S-l.1.
Contention 1
Set forth in detail your basis for the statement that the radon-222 to be released as a result of the fuel cycle for the Susquehanna facility has not been adequately assessed.
S-l.2.
Set forth in detail each incorrect assumption that you believe to have been made in estimating the radon releases, and state with specificity all your reasons for believing that the assumptions made are incorrect.
S-1.3.
Specify with particularity the effect that you believe each assumption listed in answer to interrogatory S-1.2 has on the estimate of radon re 1 eases.
S-l.4.
Set forth in detail the assumptions that you believe should be made in estimating radon releases.
S-l.5.
Specify with particularity the effect that you believe each assumption I
listed in answer to interrogatory S-1.4 has on the estimate of radon releases.
S-l.6.
If you allege that radon-222 releases are underestimated, specify the amount that you believe will be released and set forth in detail each
calculation made and specify, and state your bases for, all assumptions made by you in estimating the releases.
S-1.7.
Specify with particularity all of the errors that you believe to exist in the estimates of the health effects of radon-222, the magnitude of such errors and the causes of such errors.
S-l.8.
Specify with particularity each health effect of radon-222 that you believe will occur and state in detail how that health effect is caused.
S-1.9.
Set forth in detail all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusions about the health effects of radon-222.
S-1.10.
Specify with particularity the effect that you believe inclusion in the cost-benefit analysis of these allegedly omitted health effects of radon-222 will have-on the outcome of that analysis and state in detail the basis for your conclusion.
S-l. 11.
Specify with particularity your basis for the statement that the health I
effects of all isotopes, other than radon-22, to be released during the fuel cycle for the Susquehanna facility have been underestimated (and misrepresented).
S-1.12.
Specify. with particularity all of the errors that you believe to exist in the estimates of the health effects of isotopes other than radon-222, the magnitude of such errors and the causes of such errors.
S-1. 13.
Identify each isotope other than radon-222 that you believe will cause N
health effects, specify with particularity each health effect that you believe will occur and state in detail how that health effect is caused.
S-l.14.
Set forth in detail all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusions about the health effects of isotopes other than radon-222.
S-l.15.
Specify with particularity the effect that you believe correct inclusion in the cost-benefit analysis of these allegedly now underestimated health effects of isotopes other than radon-222 will have on the outcome of that
- analysis, and state in detail the basis for your conclusion.
Contention 3
S-3. 1.
State with particularity why you believe that known and assured reserves of uranium are not. sufficient to supply the lifetime fuel requirements of Susquehanna 1 and 2.
S-3.2.
Specify the values that you assumed (or calculated) for:
(1) known and assured, reserves of uranium, (2) lifetime fuel requirements of
Susquehanna 1
and 2, and (3) total uranium requirements of all types during the lifetime of Susquehanna 1
and 2 and state in detail the bases for your assumptions (or calculations).
S-3.3.
Specify with particularity your basis for the statement that much uranium for the facility will have to be imported and state the amount that you believe will have to be imported.
S-3. 4.
Set forth in detail each calculation made and specify, and state your basis for, all assumptions made in estimating fuel requirements, reserves and imports.
S-3. 5.
Specify with particularity why yoU believe that fuel costs for the facility, when added to other costs, will tip the cost-benefit balance against authorizing operation of the facility.
Contention 4
S-4.1.
Specify the growth rate of peak electric load that you believe will II occur in the Applicants'ervice areas over the li e of the Susquehanna facility.
S-4.2.
Provide your projections of peak load and available capacity in the Applicants'ervice areas over the life of the Susquehanna facility.
S-4.3.
Specify the models used in making your calculations of peak load and available capacity, and state why you believe those models should be
'sed.
S-4.4.
Set forth in detail each calculation made and specify, and state your basis for, all assumptions made in reaching your conclusions about peak load projections and available capacity.
S-6.1.
Contention 6
Identify (if necessary for clarity provide a map marked to show) 'the area I
.in which (in the event of a design basis accident at the Susquehanna facility and without prompt notification and evacuation) you believe persons may be exposed to radiation doses in excess of those permitted by existing radiation exposure standards for the general public and pro-tective action guides.
S-6.2.
Specify the numerical values (in appropriate units) of the exposure standards and guides which you believe will be exceeded and state why you believe they will be exceeded.
S-6.3.
Specify the models used in making your dose-distance calculations and state why you believe those models should be used.
S-6.4.
Set forth in detail each calculation made and specify, and state your bases 'for, all assumptions made in reaching your conclusions about the adequacy of the emergency plan.
S-6.5.
Specify in detail how you believe the Applicants'mergency plan fails to satisfy the Commission's regulations.
Cite each regulatory require-ment that you believe is not satisfied.
State the basis for your con-clusion that the requirement is not satisfied by the Applicants'roposed plan.
Contention 9
S-9.,1.
Specify with particularity why you believe that the'monetary costs of decommissioning the Susquehanna facility will at least be equal to the cost of it's construction and provide an estimate of those monetary costs.
S-9.2.
Provide an.itemized list showing what you believe the monetary costs of decommissioning the facility will be.
S-9.3.
Set forth in detail each calculation ma'de and specify, and provide your bases for, all assumptions made in reaching your conclusions about the monetary costs of decommissioning the Susquehanna facility.
S-9.4.
Specify'with particularity why you believe that decommissioning the Susquehanna facility will result in serious radiation hazards, particular-ly for workers.
\\
S-9.5.
Identify and provide estimates of these "new" occupational hazards to workers.
\\
S-9.6.
Specify with particularity the "new" environmental hazards that you believe will result from decommissioning the Susquehanna facility.
S-9.7.
Specify with particularity why you believe that the decommissioning
- costs, when added to other monetary and health'osts of the facility and the nuclear fuel cycle, tilt the cost-benefit balance against authorizing opera tion of the fac i 1 ity.
Contention 10 S-10.1.
Describe in detail the "significant" rail accident that you allege has already occurred at the Susquehanna facility.
S-10.2.
Define with particularity the term "significant" as it is used in the context of contention 10 and state clearly why you believe that the accident described in answer to interrogatory S-10.1 was significant.
S-10.3.
State clearly whether the accident, referred to as having occurred, occurred on-site.
S-10. 4.'escribe in detai 1 the actual damage that occurred to safety structures, systems or components of the Susquehanna facility.
S-10. 5.
Specify with particularity your reason(s) for believing that the rail line is not adequately designed to assure that on-site accidents, that will damage safety
- systems, structuresor components (to the extent that they will not be able to perform their intended safety functions) will not occur in the future.
S-10.6.
Identify with specificity the safety structures, systems or components that you believe will be damaged should a rail accident occur on-site, and state in detail the basis for your conclusions.
S-10.7.
Oescribe
.in detail the extent and consequences of the damage that you I
l believe would occur.
S-10.8.
Identify with particularity the standards (criteria) with which you believe the on-site portion of the rail line should be designed to comply.
S-10.9.
Set forth in detail all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusions about rail accidents at the Susquehanna facility.
Contention 11 1
S-ll.l.
Specify with particularity your reasons for believing that'the Applicants'lleged failure to provide adequately for safe on-site storage, for periods of up to 10.to 15 years, of spent fuel and low-level radioacti've wastes creates an unreasonable risk of harm to the health and safety of the public.
S-11.2.
Define the terms "adequately,"
"safe" and "unreasonable risk of harm" as they are used in the context of contention 11.
S-ll.3.
State whether, and if so why, you believe that the method of on-site storage of spent fuel and low-level radioactive wastes to be used at the Susauehanna facility will be unsafe.
S-ll.4.
How many spent fuel elements and what volume of low-level radioactive wastes do you believe can he stored at the facility as oropos'ed?
S-ll.5.
How many spent fuel elements and what volume of low-level radioactive wastes (that must be stored on the site) do you believe will be produced in the first 10-15 years of normal operation of the Susquehanna facility?
S-11.6. 'tate in detail how you believe the conditions, that you alleged, con-stitute a violation of 10 CFR 20.1 or 10 CFR 20.105(a) of the Commission's regulations.
S-ll.7.
Set forth in detail all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusions about spent fuel and low-level waste storage.
Contention 15 t
S-15.1.
Specify with particularity each health effect caused by the exposure to
'adiation of maintenance workers and workers working on Unit 2 while Unit 1 is in operation that you believe will occur and state in detail how that health effect is caused.
S-15.2.
Set forth in detail all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusions about the health effects to'orkers on Unit 2 while Unit 1 is in operation.
S-15. 3.
Specify with particularity why you believe that the health effects caused by exposure to radiation of the workers completing construction of Unit 2 after Unit 1 is in operation, when added to other costs, will tip the cost-benefit balance against operation of Unit 1 until construction of both units is complete.
S-15.4.
Specify with particularity why you believe that under the "as low as is reasonably achievable" standard of 10 CFR 20.1(c),
there need be no exposure of workers completing construction of Unit 2 aft'er Unit 1 is in operation.
S-15.5.
Set forth in detail all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusion that occupational radiation exposures are not "as low as is reasonably achievable."
10 CFR 2.740(e) of the Commission's regulations states that a party is under a duty seasonably to 'supplement his response with respect to questions directly addressed to the identity of each person expected to be called as an expert witness at the hearing, the subject matter on which the witness is expected to testify and the substance of the wit-nesses'estimony.
Section 2.740(e) also states that a part y is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (i) he knows that the response was incorrect when made, or (ii) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
Respectfully submitted,
- ~-<<~~>>
James H. Cutchin, IV Counsel for NRC Staff Dated at Bethesda, Maryland this 21st day of May, 1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 05/21/79 In the Matter of PENNSYLVANIA POLlER AND LIGHT CO.
ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station, Units 1
and 2)
Docket Nos.
50-387 50-388 NRC STAFF '
FIRST ROUND DISCOVERY REOUESTS OF MS.
COLLEEN MARSH As allowed by 10 CFR 2.740b of the Comm'issions regulations and the Licensing Board's Special Prehearin Conference Order dated March 6,
- 1979, the NRC Staff requests that Ms. Marsh answer the interrogatories set forth below.~
As required by 10 CFR 2.740b(b),
each interrogatory shall be answered separately and fully, in writing and under oath or affirmation, and the answers shall be signed by the person(s) making them.
In addition, as allowed by 10 CFR 2.741, the NRC Staff requests that Ms. Marsh make available for Staff inspection and copying (or provide copies of), those documents designated by Ms. Marsh in her -answers. 2/
The answers are to be provided by June 29, 1979, as required by the Licensing Board's S ecial Prehearin Conference Order dated March 6, 1979 (at p.
79 Of course, if the document was prepared by the NRC Staff or its 2I consultants, or was submitted by the Applicant in connection with the captioned matter, it need not be made available by Ms. Marsh.
G-l.
General Interro atories~
State whether you intend to present any expert witnesses on the subject matter at issue in:
a) Contention 4 b) Contention 6
r c) Contention 9
f) Contention12 g) Contention13 h) Contention'14 d) Contention 10 e) Contention 11 If so, provide the names, addresses (residence and business),
and pro-fessional qualifications of those persons you expect to call as expert witnesses, state the subject matter on which the expert is expected to testify, state the substance of the facts and opinions to which the expert is expected to testify and provide a
summary of the grounds for each opinion.
G-2.
Identify by title, author, date of issuance or publication, and issuer or publisher, all documents that you intend to use (refer to or offer in evidence) in presenting your direct case on the contentions listed l
in Interrogatory G-1 and all documents that you intend to. refer to in conducting your cross-examination of witnesses for other parties who may testify in connection with any admitted contention, and make available those documents for Staff inspection and copying (or provide copies of them).
These interrogatories should be answered separately with respect
'to'3 each contention.
S ecific Interro atories Contention 4
S-4.1.
Specify the growth rate of peak electric load that you believe will occur in the Applicants'ervice areas over the life of the Susquehanna faci 1 ity.
S-4.2.
Provide your projections of peak load and available capacity in the Applicants'er vice areas over the life of the Susquehanna facility.
S-4.3.
Specify the models used in making your calculations of peak load and available capacity, and state why you believe those models should be used.
S-4.4.
Set forth in detail each calculation made and specify, and state your basis for, all assumptions made in reaching your conclusions about peak load projections and available capacity.
Contention 6
S-6. 1.
Identify (if necessary for clarity provide a map marked to show) the area in which (in the event of a design basis accident at the Susquehanna facility and without prompt notification and evacuation) you believe persons may be exposed to radiation doses in excess of those permitted by existing radiation exposure standards for the general public and pro-tective action guides.
S-6.2.
Specify the, numerical values (in appropriate units) of the exposure standards and guides which you believe will be exceeded and state why you believe they will be exceeded.
S-6.3.
Specify the models used in making your dose-distance calculations and state why you believe those models should be used.
S-6.4.
Set forth in detail each calculation made and specify, and state your bases for, all assumptions made in reaching your conclusions about the adequacy of the emergency plan.
S-6. 5.
Specify in detail how you believe the Applicants'mergency plan fails to satisfy the Commission's regulations.
Cite each regulatory require-ment that you believe is not satisfied.
State the basis for your con-clusion that the requirement is not satisfied by the Applicants'roposed plan.
Contention 9
S-9.1.
Specify with particularity why you believe that the monetary costs of decommissioning the Susquehanna facility will at least be equal to the cost of its construction and provide an estimate of those monetary costs.
S-9.2.
Provide an itemized list showing what you believe the monetary costs of decommissioning the facility will be.
S-9.3.
Set forth in detail each calculation made and specify, and provide your bases for, all assumptions made in reaching your conclusions about the
.monetary costs of decommissioning the Susquehanna facility.
S-9. 4.
Specify with particularity why you believe that decommissioning the Susquehanna facility will result in serious radiation hazards, particular-ly for workers.
S-9.5.
Identify and provide estimates of these "new" occupational hazards to workers.
S-9. 6.
Specify with particularity the "new" environmental hazards that you believe will result from decorrmissioning the Susquehanna facility.
S-9. 7.
Specify with particularity why you believe tha't the decommissioning
- costs, when added to other monetary and health costs of the facility and the nuclear fuel cycle, tilt the cost-benefit balance against authorizi ng operation of the facility.
Contention 10 S-10. 1.
Describe in detail the "significant" rail accident that you allege has already occurred at the Susquehanna facility.
S.-10.2.
Define with particularity the term "significant" as it is used in the context of contention 10 and state clearly why you believe that the accident described in answer to interrogatory S-10.1 was significant.
S-10.3.
State clearly whether the accident, referred to as having occurred, occurred on-site, S-10.4.
Describe in detail the actual damage that occurred to safety structures, systems or components of the Susquehanna facility.
S-10.5.
Specify with particularity your reason(s) for believing that the rail line is not adequately designed to assure that on-site accidents, that will damage safety
- systems, structures or components (to the extent that they will not be able to perform their intended safety functions) wi 11 not occur in the future.
S-10.6.
Identify with specificity the safety structures, systems or components that you believe will be damaged should a rail accident occur on-site, and state in detail the'asis for your conclusions.
S-10.7.
Describe, in detail the extent and consequences of the damage that you believe would occur.
S-10.8.
Identify with particularity the standards (criteria) with which you believe the on-site portion of the rail line should be designed to comply.
S-10.9.
Set forth in detail all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusions about rai 1 accidents at the Susquehanna facility.
Contention ll 1
S-ll.l.
Specify with particularity your reasons for believing that the Applicants'lleged failure to provide adequately for safe on-site storage, for periods of up to 10.to 15 years, of spent fuel and low-level radioacti've wastes creates an unreasonable risk of harm to the health and safety of the public.
S-ll.2.
Oefine the terms "adequately,"
"safe" and "unreasonable risk of harm" as they are used in the context of contention 11.
S-ll.3.
State whether, and if so why, you believe that the method of on-site storage of spent fuel and low-level radioactive wastes to be used at the Susquehanna facility will be unsafe.
S-11.4.
How many spent fuel elements and what volume of low-level radioactive wastes do you believe can be stored at the facility as proposed?
S-ll.5.
How many spent fuel elements and what volume of 'low-level radioactive wastes (that must be stored on the site) do you believe will be produced in the first 10-15 years of normal operation of the Susquehanna facility?
S-11.6.
State in detail how you believe the conditions, that you alleged, con-stitute a violation of 10 CFR 20.1 or 10 CFR 20.105(a) of the Commission's regulations.
I ~
S-11.7.
Set forth in detail all calculations made and specify, and state your 4
bases for, all assumptions made in reaching your conclusions about spent fuel and low-level waste storage.
Contention 12 S-12.1.
Specify with par'ticularity your reasons for believing that the alleged failure to solve the problem of flow-induced vibration in the core causes in-vessel sparger failure and creates an unreasonable risk of harm to the health and safety of the public.
S-12.2.
Define the terms "sparger," "in-vessel. sparger failure" and "unreasonable risk of harm" as they are used in the context of contention 12.
S-12.3.
Specify with particularity the nuclear facilities, if any, at which
such "in-vessel sparger failure" has occured.
S-12. 4.
What were the actual consequences to public health and safety of such "in-vessel sparger failure?"
S-12.5.
State in detail how you believe the conditions, that you alleged, con-sti tute a violation of 10 CFR 20. 1 or 10 CFR 20. 105(a) of the Commission's regulations.
S-12.6.
Set forth in detail all calculations
- made, and specify, and state your basis for, all assumptions made in reaching your conclusions about "in-vessel sparger failure."
Contention 13 S-13.1.
Specify. with particularity your basis for the statement that the Applicants have failed to respond adequately to and comply with NRC's Notice of Violation involving preliminary alignment of the safety-related
[reactor]
core isolation Lcooling system pump (IP-203) j.
S-13.2.
Define the terms "adequately" and "comply" as they are used in the context of/contention 13.
S-13.3.
State whether, and if so specify with particularity why, you believe that this alleged infraction warrants the withholding of operating licenses for the Susquehanna units.
S-13.4.
In light of the fact that the NRC has closed out Noncompliance 387/78-03-04, "Failure to Inspect Preliminary Alignment of Rotating Equipment to Pre-scribed Criteria," state your basis for believing that the Applicants have failed to respond adequately to and comply with the NRC's Notice of Violation involving preliminary alignment of the RCIC system pump.
(See letter dated March 14,
- 1979, "Combined Inspections 50-387/79-01; 50-388/79-02").
S-13.5.
In light of the facts stated in the reference cited in interrogatory S-13.4, do you plan to press contention 13 or withdraw it?
Contention 14 S-14.1.
Specify with particularity why you believe that the capacity factors used in estimating the benefits of the Susquehanna units are overly optimistic and thus that the amount of electricity produced will be less than pre-dicted.
S-14.2.
Specify the capacity factors that you believe should be used (provide the numerical values as a function of time after the units begin operation) and state in detail the basis for your conclusion.
S-14.3.
Set forth in detail each calculation made and specify, and state your bases for, all assumptions made in reaching your conclusions about capacity factors for the Susquehanna units.
10 CFR 2.740(e) of the Commission's regulations states that a party is under a duty seasonably to supplement his.response with respect to questions directly addressed to the identity of each person expected to be called as an expert witness at the hearinz, the subject matter on which the witness
'I is expected to testify and the substance of the witnesses'estimony.
Section 2.740(e) also states that a party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (i) he knows that the response was incorrect when made, or (ii) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
Respectfully submitted, James H. Cutchin, IV Counsel for NRC Staff Dated at Bethesda, Maryland this 21st day of May, 1979
UNITED STATES OF AMERICA NUCLEAR PEGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 05/21/79 In the Matter of PENNSYLVANIA POllER ALLE<HFNY ELECTRIC (Susquehanna Steaq Units 1 and 2)
)
)
AND LIGHT CO.
)
COOPERATIVE, INC.
)
)
Electric Station,
)
)
Docket Nos, 50-387 50-388 NRC STAFF '
FIRST ROUND DISCOVERY REOUESTS OF THE ENVIRONMENTAL COALITION ON NUCLEAR PO'i4ER ECNP)
As. allowed by 10 CFR 2.740b of the Commissions regulations and the Licensing Board's Special Prehearin Conference Order dated March 6,
- 1979, the NRC Staff requests that ECNP answer the interrogatories set forth below./
As required by 10 CFR 2.740b(b),
each interrogatory shall be answered separately and fully, in writing and under oath or affirmation, and the answers shall be signed by the person(s) making them.
In addition, as allowed by 10 CFR 2.741, the NRC Staff requests that ECNP make available for Staff inspection and copying (or provide copies of), those documents designated by ECNP in its answers.2/
/ The answers are to be provided by June 29, 1979, as required by
'he Licensing Board's S ecial Prehearin Conference Order dated March 6, 1979 (at p.
79 2/ Of course, if the document was prepared by the NRC Staff or its consultants, or was submitted by the Applicant in connection with the captioned matter, it need not be made available by ECNP.
General Interro atories 3/
G-1.
State whether you intend to present any expert witnesses on the subject matter at issue in:
a) Contention 1
b) Contention 2
c) Contention 3
d) Contention 4
f) Contention 6
g) Contention 7
h) Contention 8
i) Contention 9
e) contention 5
j) Contention 18 If so, provide the names, addresses (residence and business),
and pro-fessional qualifications of those persons you expect to call as expert witnesses, state the subject matter on which the expert is expected to testify, state the substance of the facts and opinions to which the expert is expected to testify and provide a
summary of the grounds for each opinion.
G-2.
Identify by title, author, date of issuance or publication, and issuer or publisher, all documents that you intend to use (refer to or offer in evidence) in presenting your direct case on the contentions listed in Interrogatory G-1 and all documents that you intend to refer to in conducting your cross-examination of witnesses for other parties who may testify in connection with any admitted contention, and make available-those documents for Staff inspection and copying (or provide copies of them).
These interrogatories should be answered separately with respect to
~3 each contention.
S eci fic Inter ro atori es S-l. 1.
Contention 1
Set forth in detail your basis for the statement that the radon-222 to be released as a result of the fuel cycle for the Susquehanna facility has not been adequately assessed.
S-l.2.
Set forth in detail each incorrect assumption that you believe to have been made in estimating the radon releases, and state with specificity all your reasons for believing that the assumptions made are incorrect.
S-l.3.
Specify with particularity the effect that you believe each assumption listed in answer to interrogatory S-1.2 has on the estimate of radon releases.
S-1.4.
Set forth in detail-the assumptions that you b'elieve should be made in estimating radon releases.
S-1.5.
Specify with particularity the effect that you believe each assumption listed in answer to interrogatory S-l.4 has on the estimate of radon releases.
S-l.6.
If you allege that radon-222 releases are underestimated, specify the amount that you believe will be released and set forth in detail each calculation made and specify, and state your bases for, all assumptions made by you in estimating the releases.
S-1.7.
Specify with particularity all of the errors that you believe to exist in the estimates oV the health effects of radon-222, the magnitude of such errors and the causes of such errors.
S-I.8.
Specify with particularity each health effect of radon-222 that you believe will occur and state in detail how that health effect is caused.
S-1.9.
Set forth in detail all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusions about the health effects of radon-222.
S-I. 10, Specify with particularity the effect that you believe inclusion in the cost-benefit analysis of these allegedly omitted health effects of radon-222 will have on the outcome of that analysis and state in detail the basis for your conclusion.
S-l. 11.
Specify with particularity your basis for the statement that the health effects of all isotopes, other than radon-22, to be released during the fuel cycle for the Susquehanna facility have been underestimated (and misrepresented).
S-1.12.
Specify with particularity all of the errors that you believe to exist in the estimates
.of the health effects of isotopes other than radon-222, the magnitude of such errors and the causes of such errors.
S-1. 13.
Identify each isotope other than radon-222 that you believe will cause health effects, specify with particularity each health effect that you believe wi 11 occur and state in detail how that health effect is caused.
S-1.14.
Set forth in detail all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusions about the health effects of isotopes other than radon-222.
S-1.15.
Specify with particularity the effect that you believe correct inclusion in the cost-benefit analysis of these allegedly now underestimated health effects of isotopes other than radon-222 will have on the outcome of that
- analysis, and state in detail the basis for your conclusion.
Contention 2
S-2. 1.
Specify with particularity all of the errors that you believe to exist in the estimates of the health effects of cesium-137.
cobalt-60 and chlorine releases from the Susquehanna facility, the magnitude of such errors and the causes of such errors.
S-2.2.
Specify the amount of cesium-137, cobalt-60 and chlorine that you believe will be released and set forth in detail each calculation made and specify, P
and state your bases for, all assumptions made by you in estimating the releases.
S-2.3.
Specify with particularity each health effect of cesium-137, cobalt-60 and chlorine that you believe will occur and state in detail how that health effect is caused.
S-2.4.
Set forth in detail all calculations made and specify, and state your bases for, all assumptions made in reachi ng your conclusions about the health effects of cesium-137, cobalt-60 and chlorine, S-2. 5.
Specify with particularity the effect that you believe correct inclusion in the cost-benefit analysis of these allegedly now inadequately assessed health effects of cesium-137, cobalt-60 and ch1orine will have on the outcome of that analysis, and state in detail the basis for your conclusion.
Contention 3
S-3. 1.
State with particularity why you believe that known and assured reserves of uranium are-not sufficient to supply the lifetime fuel requirements of Susquehanna 1 and 2.
S-3.2.
Specify the values that you assumed (or calculated) for:
(1) known and assured, reserves of uranium, (2) lifetime fuel requirements of Susquehanna 1
and 2, and (3) total uranium requirements of all types during the lifetime of Susquehanna 1
and 2 and state in detail the bases for your assumptions (or calculations).
S-3.3.
Specify with particularity your basis for the statement that much uranium for the facility will have to be imported and state the amount that you believe will have to be imported.
S-3.4.
Set forth in detail each calculation made and specify, and state your basis for, all assumptions made in estimating fuel requirements, reserves and imports.
S-3. 5.
Specify with particularity why you believe that fuel costs for the facility, when added to other costs, will tip the cost-benefit balance against authorizing operation of the facility.
S-4.1.
Contention 4
Specify the growth rate of peak electric load that you believe will occur in the Applicants'ervice areas over the life of the Susquehanna fac i 1 ity.
S-4.2.
Provide your projections of peak load and available capacity in the Applicants'ervice areas over the life of the Susquehanna facility.
S-4.3.
Specify the models used in making your calculations of peak load and available capacity, and state why you believe those models should be'sed.
S-4.4.
Set forth in detail each calculation made and specify, and state your basis for, all assumptions made in reaching your conclusions about peak load projections and available capacity.
Contention 5
S-5.1.
Specify with particularity the models used to calculate individual and population radiation doses that you believe to be inaccurate and obsolete and set forth in detail your basis for that belief.
S-5.2.
Specify with particularity the models that you believe should be used to calculate individual and population radiation doses and set forth in detail your basis for that belief.
S-5.3.
Set forth in detail each calculation made and specify, and state your basis for. all assumptions made by you in reaching your conclusions about radiation doses and dose models.
S-5.4.
Specify with particularity (not merely by general reference to an article k
I f
k <<<<
I <<k Ilk coefficient for iodine (as used in the individual and population dose
models) has been underestimated.
Specify the coefficient that you believe should be used.
S-5. 5.
Set forth in detail each calculation made and specify, and state your basis for, all assumptions made in reaching your conclusions about the milk transfer coefficient for.iodine.
S-5.6.
Specify with particularity (not merely by general reference to an article in Health Ph sics your basis for the statement that the factors (as used in the individual and population dose models) for conversion of alpha-particle dose in rads to rems are far too low.
Specify the factors that you believe should be used.
S-5.7.
Set forth in detail each calculation made and specify, and state your basis for, all assumptions made in reaching your conclusions about the factors for conversion of alpha-particle dose in rads to rems.
S-5.8.
Specify with particularity (not merely by general reference to an article
~tl 1
Ph i
)
b i
f h <<'h<<h used in the individual and population dose models) for estimating radiation effects of low energy beta and gamma radiation, as from H-3 and C-14, underestimate those effects.
Specify the factors that you believe should be used.
10-S-5.9.
Set forth in detail each calculation made and specify, and state your bases for, all assumptions made in reaching your conclusions about the factors for estimating the radiation effects of low energy beta and gamma radiation.
Contention 6
S-6.1.
Identify (if necessary for clarity provide a map marked to show) the area in which (in the event of a design basis accident at the Susquehanna facility and without prompt notification and evacuation) you believe persons may be exposed to radiation doses in excess of those permi tted by existing radiation exposure standards for the general public and pro-tective action guides.
S-6.2.
Specify the numerical values (in appropriate units) of the exposure standards and guides which you believe will be exceeded and state why you believe they will be exceeded.
S-6.3.
Specify the models used in making your dose-distance calculations and state why you believe those models should be used.
S-6.4.
Set forth in detail each calculation made and specify, and state your bases for, all assumptions made in reaching your conclusions about the adequacy of the emergency plan.
11 S-6.5.
Specify in detail how you believe the Applicants'.
emergency plan fails to satisfy the Commission's regulations.
Cite each regulatory require-ment that you believe is not satisfied.
State the basis for your con-elusion that the requirement is not satisfied by the Applicants'roposed pl an.
Contention 7
S-7.1.
Specify with particularity your basis for the statement that the Sus-,
quehanna containment structures may not be strong enough to withstand the dynamic forces that could occur during blowdown.
S-7.2.
Identify with particularity each dynamic force "realized during blowdown" that you believe the containment should be designed to withstand and state your basis for believing that the containment may not be able to withstand such force(s).
S-7.3.
Set forth in detail each calculation made and specify, and state your bases for, all assumptions made in reaching your conclusions about the ability of the containment to withstand the dynamic forces that could occur during blowdown.
S-7.4.
Specify with particularity why you believe that the type of pipe cracking that has occurred at other BWR facilities renders the Susquehanna units unsafe to operate.
S-7.5.
In what types of stainless steel piping has this cracking mainly occurred?
S-7.6.
Has such cracking occurred at nuclear facilities in piping made of materials other than stainless steel?
If so, identify those materials.
S-7.7.
What conditions have been found to maLe piping susceptible to the occurrence of intergranular stress corrosion cracking?
S-7.8.
What measures can be taken during design and fabrication of piping to prevent, or reduce the likelihood of, pipe cracking at the Susquehanna facility' S-7.9.
What. were the actual consequences to.public health and safety of the pipe cracking to which you refer as having occurred?
S-7; 10.
Set forth in detail each calculation made and specify, and state your
'basis for, all assumptions made in reaching your conclusions about pipe cracking.
S-7.11.
Specify with particularity why you believe that the type of nozzle cracking that has occurred at other BWR facilities renders the Susquehanna units unsafe to operate.
S-7. 12.
In what types of nozzles other than "core spray" nozzles has cracking occurred?
S-7.13.
What conditions caused this nozzle cracking?
S-7.14.
What measures can be taken during the design, fabrication or operation of the nozzles to prevent, or reduce the likelihood of, nozzle cracking at the Susquehanna facility?
S-7 '5.
What were the actual consequences to public health and safety of the nozzle cracking to which you refer as having occurred?
S-7. 16.
Specify with particularity what you would consider to be an acceptable demonstration of the low contribution to risk of an anticipated transient without scram (ATWS), and state in detail the basis for your conclusion.
Contention 8
Specify with particularity your basis for the statement that the Appli-cants have not adequately demonstrated "compliance" with part II.6, "Operating Conditions," of Standard Review Plan, 55.3.3, "Reactor Vessel Integrity."
S-8.2.
Define the terms "adequately" and "compliance" as they are used in the context of Contention 8.
,. S-8.3.
Identify the specific requirements of the Commission's regulations that the reactor pressure vessel does not meet and provide the basis for your conclusion.
S-8.4.
Set forth in detail each calculation made and specify, and state your bases for, all assumptions made in reaching your conclusions about the inability of the reactor pressure vessel to withstand thermal shock.
Contention 9
S-9.1.
Specify with particularity why you believe that the monetary costs of decommissioning the Susquehanna facility will at least be equal to the cost of its construction and provide an estimate of those monetary costs.
S-9.2.
Provide an itemized list showing what you believe the monetary costs of decommissioning the facility will be.
I'-9.3.
Set forth in detail each calculation made and specify, and provide your bases for, all assumptions made in reaching your conclusions about the monetary costs of decommissioning the Susquehanna facility.
S-9.4.
Specify with particularity why you believe that decommissioning the Susquehanna facility will result in serious radiation hazards, particular-ly for workers.
S-9.5.
Identify and provide estimates of these "new" occupational hazards to workers.
S-9.6.
Specify with particularity the "new" environmental hazards that you believe will result from decommissioning the Susquehanna facility.
S-9.7.
Specify with particularity why you believe that the decommissioning
- costs, when added to other monetary and health'osts of the facility and the nuclear fuel cycle, tilt the cost-benefit balance against authorizing operation of the facility.
Contention 18 S-18.1.
State whether, and if so specify with particularity why, if use of herbicides is prohibited you believe that some alternate means (for
- example, cutting and pi ling the brush) of maintaining the clearance of transmission line rights-of-way cannot be used.
S-18.2.
State whether, and if so specify with particularity why, you believe that the environmental impacts of periodically cutting and piling the brush that may grow in the transmission line rights-of-way would be
- adverse, environmentally significant and sufficient to tip the cost-benefit balance against authorizing operation of the Susquehanna facility.
S-18.3.
Set forth in detail each calculation made and specify, and state your bases for, all assumptions made in reaching your conclusions about the environmental impacts of methods for maintaining the clearance of trans-mission line rights-of-way, 10 CFR 2.740(e) of the Commission's regulations states that a party is under a duty seasonably to suoplement his response with respect to questions directly addressed to the identity of each person expected to be called as an expert witness at the hearing, the 'subject matter on which the witness is expected to testify and the substance of the witnesses'estimony.
Section
- 2. 740(e) also states that a party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (i) he knows that the response was incorrect when made, or (ii) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
Respectfully submitted, James
."i. Cutchin, IV Counsel for HRC Staff Dated at Bethesda, Maryland this 21st day of flay, 1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 05/21/79 In the Matter of PENNSYLVANIA POllER ALLEGHENY ELECTRIC (Susquehanna Steam Units 1
and 2)
)
)
AND LIGHT CO.
)
COOPERATIVE, INC.
)
)
Electric Station, Docket Nos'.
50-387 50-388
~-NPC STAFF '
FIRST ROUND DISCOVERY REQUESTS"
'OF'- THE"'ITIZENS'AGAINST'NUCLEARDANGERS CAND As allowed by 10 CFR 2.740b of the Commissions regulations and the Licensing Board's Special Prehearin Conference Order dated March 6,
- 1979, the NRC Staff requests forth below./
As required that CAND answer the interrogatories set by 10 CFR 2.740b(b),
each interrogatory shall be answered separately and fully, in writing and under oath or affirmation, and the answers shall be signed by the person(s) making them.
In addition, as allowed by 10 CFR 2.741, the NRC Staff requests that CAND make available for Staff inspection and copying (or provide copies of), those documents designated by CAND 'in its answers.~2/
1/ The answers are to be provided by June 29,
- 1979, as required by the Licensing Board's Special Prehearinq Conference Order dated March 6, 1979 (at p.
79 Of course, if the document was prepared by the NRC Staff or its 2/
consultants, or was submitted by the Applicant in connection with the captioned matter, it need not be made available by CAND.
General Interro atories3/
G-1.
State whether you intend to present any expert witnesses on the subject matter at issue in:
a) Contention 2
b) Contention 4
c) Contention 6
d) Contention e) Contention 10 f) Contention 11 g) Contention 16 h) Contention 17 If so, provide the names, addresses (residence and business),
and pro-fessional-qualifications of those persons you expect to call as expert witnesses, state the subject matter on which the expert is expected to testify, state the substance of the facts and opinions to which the expert is expected to testify and provide a
summary of the grounds for each opinion.
G-2.
Identify by title, author, date of issuance or publication, and issuer or publisher, all documents that you intend to use (refer to or offer in evidence) in presenting your direct case on the contentions listed in Interrogatory G-1 and all documents that you intend to refer to in conducting your cross-examination of witnesses for other parties who may testify in connection with any admitted contention, and make available those'ocuments for Staff inspection and copying (or provide copies of them).
~ These interrogatories should be answered seoarately with respect to each contention.
S ecific Interro atories Contention 2
Specify with particularity all of the errors that you'elieve to exist in the estimates of the health effects of cesium-137, cobalt-60 and chlorine releases from the Susquehanna facility, the magnitude of such errors and the causes of such errors.
S-2.2.
Specify the amount of cesium-137, cobalt-60 and chlorine that you believe will be released and set forth in detail each calculation made and specify, and state your bases for, all assumptions made by you in estimating the rel eases.
S-2.3.
Specify with particularity each health effect of cesium-137, cobalt-60 and chlorine that you believe will occur and state in detail how that health effect is caused.
S-2.4.
Set forth in detai 1 all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusions about the health effects of cesium-137, cobalt-60 and chlorine.
S-2. 5.
Specify with particularity the effect that you believe correct inclusion in the cost-benefit analysis of these allegedly now inadequately assessed health effects of cesium-137, cobalt-60 and chlorine will have on the outcome of that analysis, and state in detail the basis for your conclusion.
Contention 4
S-4.1.
Specify the growth rate of peak electric load that you believe will occur in the Applicants'ervice areas over the life of the Susquehanna faci 1 ity.
S-4.2.
Provide your projections of peak load and available capacity in the Applicants'ervice areas over the life of the Susquehanna facility.
S-4.3.
Specify the models used in making your calculations of peak load and available capacity, and state why you believe those models should be used.
S-4.4.
Set forth in detail each calculation made and specify, and state your basis for, all assumptions made in reachi ng your conclusions about peak load projections and available capacity.
Contention 6
S-6.1.
Identify (if necessary for cIarity provide a map marked to show) the area
.in which (in the event of a design basis accident at the Susquehanna facility and without prompt notification and evacuation) you believe persons may be exposed to radiation doses in excess of those permitted by existing radiation exposure standards for the general public and pro-tective action guides.
S-6.2.
Specify the numerical values (in appropriate units) of the exposure standards and guides which you believe will be exceeded and state why you believe they will be exceeded.
S-6. 3.
Specify the models used in making your dose-distance calculations and state why you believe those models should be used.
S-6.4.
Set forth in detail each calculation made and specify, and state your bases for, all assumptions made in reaching your conclusions about the adequacy of the emergency plan.
S-6. 5.
Specify in detail how you believe the Applicants'mergency plan fails to satisfy the Commission's regulations.
Cite each regulatory require-ment that you believe is not satisfied.
State the basis for your con-clusion that the requirement is not satisfied by the Applicants'roposed plan.
Contention 9
S-9.1.
Specify with particularity why you believe that the monetary costs of decommissioning the Susquehanna facility will at least be equal to the cost of its construction and provide an estimate of those mone.ary costs.
S-9.2.
Provide an itemized list showing what you believe the monetary costs of decommissioning the facility will be.
S-9.3.
Set forth in detail each calculation made and specify, and provide your bases for, all assumptions made in reaching your conclusions about the monetary costs of decommissioning the Susquehanna facility.
S-9. 4.
Specify with particularity why you believe that decommissioning the Susquehanna facility will result in serious radiation hazards, particular-ly for workers.
S-9.5.
Identify and provide estimates of these "new" occupational hazards to workers.
S-9.6.
Specify with particularity the "new" environmental hazards that you believe will result from decommissioning the Susquehanna facility.
S-9. 7.
Specify with particularity why you believe that the decommissioning
- costs, when added to other monetary and health'osts of the facility and the nuclear fuel cycle, tilt the cost-benefit balance against authorizing operation of the facility.
Contention 10 S-10. 1.
Describe in detail the "significant" rail accident that you allege has already occurred at the Susquehanna facility.
S-10.2.
Define with particularity the term "significant" as it is used in the context of contention 10 and state clearly why you believe that the accident described in answer to interrogatory S-10.
1 was significant.
S-10.3.
State clearly whether the accident, referred to as having occurred, occurred on-site.
S-10.4.
Describe in detail the actual damage that occurred to safety structures, systems or components of the Susquehanna facility.
S-10. 5.
Specify with particularity your reason(s) for believing that the rail line is not adequately designed to assure that on-site accidents, that will damage safety systems, structures or components (to the extent that they will not be able to perform their intended safety functions) will not occur in the future.
S-10.6.
Identify with specifici ty the safety structures, systems or components that you believe will be damaged should a rail accident occur on-site, and state in detail the basis for your conclusions.
S-10.7.
Oescribe
.in detail the extent and consequences of the damage that you believe would occur.
S-10. 8.
Identify with particularity the standards (criteria ) with which you believe the on-site portion of the rail line should be designed to comply.
S-10. 9.
Set forth in detail all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusions about rai 1 accidents at the Susquehanna facility.
Contention 11 S-ll.l.
Specify with particularity your reasons for believing that the Applicants'lleged failure to provide adequately for safe on-site storage, for periods of up to 10 to 15 years, of spent fuel and low-level radioacti've wastes creates an unreasonable risk of harm to the health and safety of the public.
S-ll.2.
Oefine the terms "adequately,"
"safe" and "unreasonable risk of harm" as they are used in the context of contention 11.
S-11.3.
State whether, and if so why, you believe that the method of on-site storage of spent fuel and low-level radioactive wastes to be used at the Susquehanna facility will be unsafe.
S-ll.4.
How many spent fuel elements and what volume of low-level radioactive wastes do you believe can he stored at the facility as proposed?
S-11.5.
How many spent fuel elements and what volume of low-level radioactive wastes
\\
(that must bie stored on the site) do you believe will be.produced in the first 10-15 years of normal operation of the Susquehanna facility?
S-ll.6.
State in detail how you believe the conditions, that you alleged, con-stitute a violation of 10 CFR 20.1. or 10 CFR 20.105(a) of the Commission's regulations.
S-ll.7.
Set forth in detai 1 all calculations made and specify, and state your bases for, all assumptions made in reaching your conclusions about spent fuel and low-level waste storage.
Contention 16 S-16.1.
Specify with particularity your basis for the statement that seventy million gallons of radioactive evaporated water are to be vented daily from the Susquehanna facility's cooling towers.
S-16.2.
Set forth in detail each calculation made and specify, and state your bases for, all assumptions made in reaching your conclusions about the amount, radioactive content, and environmental impact of water evaporated in the cooling towers.
S-16.3.
Specify the effect that you believe inclusion in the cost-benefit analysis of this allegedly now improperly evaluated economic threat will have on the outcome of that analysis and state in detail the basis for your conclusion.
Contention 17 S-17.1.
Spe ify with particularity whether, and if so why, you believe that the environmental impacts of the 500 kY transmission lines for the Susquehanna facility are such as to tip the cost-benefit balance against authorizing operation of the facility.
S-17.2.
Specify with particularity
'whether, and if so why, you believe the resu'.
s of "mini" cost-benefit balances would support requiring either:
a) use of transmission lines of voltages no greater than 230 kV, or b) placing the 500 kV lines (using compressed gas as an insulator) underground.
S-17.3.
Set forth in detail each calculation made and specify, and state your bases for, all assumptions made in reaching your conclusions about the environmental impacts of 500 kV transmission lines and the costs and benefits of 230 kY and underground transmission lines.
S
~
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10 CFR 2.740(e) of the Commission's regulations states that a party is under a duty seasonably to supplement his response with respect to questions directly addressed to the identity of each person expected to be called as an expert witness at the hearing, the subject matter on which the witness is expected to testify and the substance of the witnesses'estimony.
Section 2.740(e) also states that a party is under a duty seasonably to amend a prior response if he obtains information upon the W
basis of which (i) he knows that the response was incorrect when made, or (ii) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
Respectfully submitted, James M. Cutchin, IV Counsel for NRC Staff Dated at Bethesda, Maryland this 21st day of May, 1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station, Units 1
and 2)
)
Docket Nos.
50-387
)
50-388
)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S FIRST ROUND DISCOVERY. REQUESTS OF THE CITIZENS AGAINST NUCLEAR DANGERS (CAND)", "NRC STAFF'S FIRST ROUND DISCOVERY REQUESTS OF THE SUSQUEHANNA ENVIRONMENTAL ADVOCATES (SEA)",
"NRC STAFF'S FIRST ROUND DISCOVERY REQUESTS OF MS.
COLLEEN MARSH", and "NRC STAFF'S FIRST ROUND DISCOVERY REQUESTS OF THE ENVIRONMENTAL COALITION ON NUCLEAR POWER (ECNP)" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Conmission's internal mail system, this 21st day of May, 1979:
. Charles Bechhoefer, Esq.,
Chairman*
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Glenn 0. Bright*
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Oscar H. Paris*
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Jay Silberg, Esq.
- Shaw, Pi ttman, Potts and Trowbridge 1800 M Street, N.W.
Washington, D.C.
20036 Dr. Judi th H. Johnsrud Co-Director Environmental Coalition on Nuclear Power 433 Orlando Avenue State College, PA 16801 Mr. Thomas M. Gerusky, Director Bureau of Radiation Protection Department of Environmental Resources Commonwealth of Pennsylvania P.O.
Box 2063 Harrisburg, PA 17120 Ms. Colleen Marsh Box 538A, RDd4 Mountain Top, PA 18707 Mrs. Irene Lemanowicz, Chairperson The Citizens Against Nuclear Dangers P.O.
Box 377 RDPl
- Berwick, PA 18503 Susquehanna Environmental Advocates c/o Gerald Schultz, Esq.
500 South River Street Wilkes-Barre, PA 18702 Atomic Safety and Licensing Appeal Board Panel*
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Board Panel*
U.S. Nuclear Regulatory Coomission Washington, D.C.
20555 Docketing and Service Section*
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 James M. Cutchin, IV Counsel for NRC Staff