ML17296B147
| ML17296B147 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 12/19/1980 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8012290232 | |
| Download: ML17296B147 (29) | |
Text
l RSOULATif INFORMATION OISTRIBUTIOIYSTEM (RIBS)
ACCESSION NBRg 8012290232 DOC ~ DATE! 80/12/19 NOTARIZED!
NO FACIL':STN"50"528 Palo Verde Nuclear Stationi Unit ii Arizona Publi STN 50 529 Palo Verde Nuclear Stationi Un)t 2F Arizona Publi STN 50 530 Palo-Verde Nuclear Stationi Unit 3i Arizona Publi AUTH ~ NAME
'UTHOR AF F? LIATI ON MCGURRENiH.J.
Hearing Branch 1.
RECIP ~ NAME, RECIPIENT AFFILIATION Atomic Safety and Licensing Board Panel SUBJECTS-Response in opposition to all PL Hourihan contentionsisave, Contention 6B re. postulated ATHS event>Other contentions do not>> contain proper subj~ matter;Cer tificate of Svc encl'ISTRIBUTION CODE:
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION December 19, 1980 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ARIZONA PUBLIC SERVICE COMPANY, et al.
(Palo Verde Nuclear Generating
- Station, Units 1, 2 and 3)
)
Docket Nos.
STN 50-528
)
STN 50-529
)
STN 50-530
, <.)
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NRC STAFF
RESPONSE
TO CONTENTIONS FILED BY THE INTERVENOR, PATRICIA LEE HOURIHAN I.
BACKGROUND On August ll, 1980, Patricia Lee Hourihan submitted a timely petition for leave to intervene and request for hearing in the above-captioned matter for herself as well as on behalf of two other persons, Kevin Dahl and Christopher Shuey.
On November 21, 1980, Ms. Hourihan filed a Supplement to Petition for Leave to Intervene and Contentions (Supplement) setting forth 28 contentions.
On December 2, 1980, a prehearing conference was held before this Atomic Safety and Licensing Board (Board) to consider the petition for leave to intervene and to permit identification of the issues in this proceeding.
At the prehearing conference, the Board orally granted the petition to intervene
~l as to Ms. Hourihan, thereby making her a full party to this proceeding.
(Ms. Hourihan hereinafter will be referred to as "Intervenor.")
1/
Tr. 16.
8 Ozsseo
At the December 2, 1980, prehearing conference in the above proceeding the parties--Intervenor, the Joint Applicants, and the NRC Staff--indicated that they would confer on December 9 and 10, 1980, for the purpose of arriving at a stipulation regarding the language of Intervenor's remaining contentions.2/
The parties did confer and executed a stipulation which was filed with the Board on December 12, 1980.
With regard to the Intervenor's contentions not withdrawn at the prehearing conference, the stipulation indicates that the Intervenor further withdrew Contention Nos.
3, 9, 10, 15, 16, 20, 21 and 22 from Intervenor's November 21,
- 1980, Supplement and formed from the remaining contentions a group of reworded contentions which all the parties agreed were valid contentions
-(Appendix A to the Stipulation) and a group of reworded contentions that the parties were not able to agree were valid contentions (Appendix B). It is this latter group of reworded contentions that the Staff addresses below.
II.
CONTENTIONS RE UIRENENTS As a general matter, for the contentions proposed to be admissible, they must fall within the scope of the issues set forth in the Federal
~Re ister Notice of Hearing (Notice of Hearing)
(See Public Service Com an of Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units 1
and 2), ALAB-316, 3
NRC 167, 171 (1976)) in this proceeding, 45 Fed.
Reg.
46941 (July ll,
~2 Tr. 30.
During the course of the discussion of Intervenor's contentions at the prehearing conference, Intervenor withdrew Contention Nos.
19, 24, 25 and 27 (Tr. 30, 32).
1980),
and comply with the requirements of 10 C.F.R. 5 2.714(b) and applicable Commission case law.
See, ~e, Du uesne Licht Co.
(Beaver Valley, Unit No. 1),
ALAB-109, 6 AEC 243, 245 (1973); Northern States Power Co. (Prairie Island, Unit Nos.
1 and 2), ALAB-107, 6 AEC 188, 194 (1973), aff'd, BPI v. Atomic Ener Cormission, 502 F.2d 424, 429 (D.C. Cir. 1974).
10 C.F.R. 5 2.714(b) requires that a list of contentions which petitioners seek to have litigated be filed along with the bases for those contentions set forth with reasonable specificity.
A contention must be rejected where:
- a. it constitutes an attack on applicable statutory requi rements;
- b. it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations;
- c. it is nothing more than a generalization regarding the intervenor's views of what applicable policies ought to be;
- d. it seeks to raise an issue which is not proper for adj'udication in the proceeding or does not apply to the facility in question; or
- e. it seeks to raise an issue which is not concrete or litigable.
~
Philadel hia Electric Co.
(Peach Bottom Atomic Power Station, Units 2 5 3),
ALAB-216, 8 AEC 13, 20-21 (1974).
The purpose of the basis requirement of 10 C.F.R. 5 2.714 is to assure that the contention in question does not suffer from any of the infirmities listed above to establish sufficient foundation for the contention to warrant further inquiry of the subject matter in the proceeding, and to put the other parties sufficiently on notice "so that they will know at least generally what they will have to defend against or oppose."
Peach
- Bottom,
4
~su ra at 20.
From the standpoint of basis, it is unnecessary for the petition
'I "to detail the evidence which will be offered in support of each contention."
Mississi i Power
& Li ht Co.
(Grand Gulf Nuclear Station, Units 1
8 2),
ALAB-130, 6 AEC 423, 426 (1973).
Furthermore, in examining the contentions and the bases therefore, a licensing board is not to reach the merits of the contentions.
Duke Power Co.
(Amendment to Materials License SNM-1773-Transportation of Spent Fuel From Oconee Nuclear Station for Storage at McGuire Nuclear Station),
ALAB-528, 9 NRC 146, 151 (1979);
Peach
- Bottom,
~su ra at 20; Grand Gulf, ~su ra at 426.
In a recent decision, Houston Li htin and Power Com an (Aliens Creek Nuclear Generating Station, Unit 1), ALAB-590, ll NRC 542, 546-48 (April 22, 1980), the Appeal Board applied the principles described above governing the admissibility of contentions.
The decision emphasized that in ruling on the admissibility of contentions, a licensing board is not to venture beyond the contention and its stated basis into the merits of the contention.
Any question concerning the validity of the contention or of its basis must be left for consideration when the merits of the controversy are reached, i.e.,
through'ummary disposition or in the evidentiary hearing.
In sum, at the petition stage, it is incumbent upon the Petitioner to (1) set forth contentions which are sufficiently detailed and specific to demonstrate that the issues raised are admissible and that further inquiry is warranted, and to put the other parties on notice as to what they will have to defend against or oppose, and (2) set forth the reasons (basis) for each of the contentions without having to detail the evidence which would later be offered in support of each contention.
If
III.
CONTENTIONS The Staff position on each of the contentions set forth in Apoendix 8
to the stipulation is set forth below.
CONTENTION NO.
6A (Revision of Contention No.
6 of Intervenor's Supplement).
The Applicants have not analyzed the financial con-sequences of an Anticipated Transient Without Scram (ATWS) event which can result in a Class 9 accident.
[By this contention, Intervenor is not limiting the area of the contention to only ATWS events that could lead to Class 9 accidents.]
(Environmental)
Position:
The Intervenor in this contention raises the issue that the potential dollar costs resulting from the consequences of an ATWS event '(including an ATWS event that could lead to a Class 9 accident) have not been considered by the Applicants.
The Commission recently issued an interim policy statement entitled "Nuclear Power Plant Accident Consideration Under the National Environmental Policy Act of 1969" (45 Fed.
Reg.
- 40101, June 13, 1980), which revised Commission policy on the consideration of environmental impacts arising from more severe very low probability accidents (Class 9 accidents) that are physically possible.
3
/'rior to publication of this interim policy statement the consequences of Class 9 accidents were not generally considered by the Staff in environmental impact assessments.
The interim policy statement provides:
~3 This policy will be applied to the Staff's environmental assessment of Palo Verde Nuclear Generating Station since it is an ongoing review.
See 45 Fed.
Reg.
40101, at 40103.
It is the Commission's position that its Environmental Impact Statement shall include considerations of the site-specific environmental impacts attributable to accident sequences that lead to releases of radiation and/or radioactive materials, including sequences that can result in inadequate cooling of reactor fuel and to melting of the reactor core.
This interim policy statement applies to the Staff only and not to the Applicants.
Only applicants who file their environmental reports after July 1,
- 1980, are required to address such Class 9 risks.
(45 Fed.
Reg.
40103).
The Applicant's environmental report was submitted on December 5,
1979.
Even if the contention were reworded to assert that the Staff had failed to take into account the costs of the referenced A'BIS events it still must fail, at least for now.
The Staff believes that this contention is premature and in addition fails to meet the specificity requirements of 10 C.F.R. 5 2.714.
The Staff will consistent with the Coomission's interim policy statement consider the environmental impacts "attributable to accident sequences that lead to releases of radiation
. including sequences that can result in inadequate cooling of reactor fuel and to melting of the reactor core."
This will include consideration of economic and socioeconomic impacts. The 4/
results of this analysis will not appear until the Staff publishes its DES.
In sum, the Staff not the Applicant must pursuant to NEPA and Commission policy statement consider consequences of accidents including Class 9 accidents 4 /
See generally 10 C.F.R. 5 51.23 and 5 51.26 which guide the Staff in preparation of the DES and FES.
and until that analysis is published by the Staff in its DES, the Staff believes the Intervenor will not have sufficient basis or specificity to support a
contention that that analysis is not adequate.
Accordingly, the Staff believes that this contention should be rejected now, with the right to file such a
contention within 30 days after issuance of the DES.
CONTENTION NO.
6B (Revision of Contention No.
6 of Intervenor's Supplement).
The Applicants have not incorporated measures designed to mitigate a postulated AT>JS event.
(Safety)
Position:
Although this contention is sparsely worded, it together with its "Explanation" seems to be the proper subject matter for a contention.
The Appeal Board has made it clear that "unresolved" issues such as ATWS cannot be disregarded in individual licensing proceedings because they have generic applicability.
Vir inia Electric and Power Com an (North Anna Nuclear Power Station, Units 1
and 2), ALAB-491, 8 NRC 245, 248 (1978).
The Appeal Board added:
"There must be some explanation why construction or operation can proceed even though an overall solution has not been found."
(Id.)
In Northern States Power Com an
, (Honticello Nuclear Generating Plant, Unit 1), ALAB-611, slip op. at 19 (September 3,
1980) the Appeal Board stated that the Licensing Board must look at the record and assure itself that "the generic safety issues have been taken into account in a manner that is at least plausible and that, if proven to be of substance, would be adequate to justify operation.
Thus the basic matter set out in the contention must be dealt with in this proceeding.
The issue to be dealt with under this contention would be (a) has the Applicant incorporated measures to deal with ATHS events in its Palo Verde facility, and if not (b) does this pose a safety question that would foreclose issuing an operating license for the facility.
5/
For the above reasons the Staff supports admission of this contention.
CONTENTION NO.
14 (Revision of Contention No.
14 of Intervenor's Supplement).
f The Applicants have failed to show the effects of cumulative radiation on the Primary System of the PVNGS and the likelihood that these effects will not shorten the life-span. of the plant.
(Environ-mental)
Position:
The Staff opposes this contention for the reason that it fails to meet the bases and specificity requirements of 10 C.F. R.
5 2.714.
The Intervenor states no basis for the contention.
Furthermore, it is not clear from the contention what "effects" are of concern to the Intervenor and how these effects will lead to a shortening of the life of the Palo Verde Nuclear Station so as to be of concern in this licensing proceeding.
5 /
Should the Commission resolve the ATl)S issue or other generic questions by rule or regulation, such action would be binding on this Board and prevent litigation of this matter.
See 10 C. F. R.
5 2. 758.
CONTENTION NO.
17 (Same as Contention Ho.
17 of Intervenor's Supplement).
Position:
The Applicants have failed to adequately consider the report on "Spent Fuel Meat Up Following The Loss Of Water During Storage" prepared by the Sandia Laboratories for the NRC in September of 1978 (SAND 77-1371).
(Safety)
The Staff opposes this contention for the reason that it fails to satisfy the basis and specificity requirements of 10 C.F. R.
5 2.714.
There is absolutely no showing how the cited report relates to the Palo Verde Station or why such report should be considered by the Applicant.
CONTENTION NO.
18 (Combines Contention Nos.
18 and 26 of Intervenor's Supplement).
The Applicants have not adequately figured the costs and impacts of storage or disposal of spent fuel and other radioactive wastes, for the term of the operating licenses, in the cost/benefit analysis.
(Environmental)
Position:
The Staff opposes this contention for the reason that it fails to meet the specificity and bases requirement of 10 C. F. R.
5 2.714.
Principally, it is not clear what issue the Intervenor is asking the Board to accept for litigation.
The Commission has issued a final rule regarding the environmental impact values for the uranium fuel cycle (44 Fed.
Reg.
45362, August 17, 1979).
In that rule the Commission adopted the impact values of the modified
Table S-3 recommended by the Hearing Board.
This rule requires that these values, with the exception of radon releases and technetium-99 releases from reprocessing and waste management activities, be taken as the basis for evaluating fuel cycle impacts for individual reactors pursuant to the require-ments of NEPA.
To the extent Intervenor seeks the Applicants to use other values for those matters covered by'the rule the contention might be an attack on Commission regulations and therefore there would be cause to reject it.
Potomac Electric Power Com an (Douglas Point Nuclear Generating Station, Units 1
and 2), ALAB-218, 8 AEC 79, 89 (1974);
10 C.F.R. 5 '2.758.
The Commission's rule does,'owever, provide for consideration in individual proceedings evaluation of dose commitments and health effects from fuel cycle releases as well as economic, socioeconomic and possible cumulative impacts of fuel cycle activities.
It is not, however, clear from Intervenor's contention, even if the "basis" requirement of 5 2.714 were satisfied, that any of these matters are of concern to the Intervenor. ~6
~6 In its "Explanation" for this contention Intervenor notes that Applicants'torage capacity is limited to 10 years.
The Commission has before it a generic reconsideration of the radioactive waste question.
44 Fed.
Reg.
- 61372, 61373 (October 25, 1979).
This policy statement does not seem to foreclose litigation of whether the capacity of the plant to store waste on-site during the term of the license should be greater.
CONTENTION NO.
23A (Revision of Contention No.
23 of Intervenor's Supplement).
Position:
The Applicants have not adequately considered the effects of on-site sabotage.
(Safety)
The Staff recognizes the difficulty that an intervenor has with regard to asserting a contention on the security plan for a nuclear reactor with sufficient basis and specificity to satisfy the requirements of 10 C. F. R.
5 2. 714, since the security plan is not available to the intervenor.~
The Staff, however, does not believe that the basis cited by the Intervenor in the support of this contention, the general availability of the Barrier Penetration
- Handbook, is sufficient in spite of this difficulty.
The Staff believes that the basis cited for such a contention should be site specific, i.e., stating specific reasons why a security plan may not be adequate for this particular station.
The mere availability of a Handbook giving the times certain types of physical barriers can resist penetration, does not show that the security at the plant is insufficient.
- Further, the nexus between this book dealing with barrier penetration, i.e.,
an attack on a plant from outside and, on-site sabotage is not apparent.
~7 The Appeal Board in Pacific Gas and Electric Com an (Diablo Canyon Nuclear Power Plant, Units 1 and 2
, ALAB-410, 5 NRC 1298, 1404 (1977) has recognized the sensitive nature of security plans and established the principle that even where a contention regarding the security plan has been accepted by a Board availability of the security plan wi 11 be restricted.
The Appeal Board stated:
A security plan need not be revealed to a witness who lacks relevant expertise for evaluating it.
Access to the plan or portions thereof should be given only to witnesses who have been shown to possess the technical competence necessary to evaluate the portions of the plan which they may be shown.
Any other course would contravene the requirement that access be afforded only to "persons properly and directly concerned" (10 CFR 52.790(b)(6)).
See also Federal Rules of Evidence, Rule 702.
In addition, the contention as stated is overly broad.
A quick look at 10 C.F.R. Part 73 "Physical Protection of Plants and Materials" indicates the many different aspects involved in a security plan.
The Intervenor has simply asserted that the entire plan is not adequate.
This, the Staff believes, is not sufficient to satisfy the "specificity" requirements of 10 C. F. R.
5 2.714.
Accordingly, the Staff opposes the admission of this contention.
CONTENTION NO.
23B (Revision of Contention No.
23 of Intervenor's Supplement)
Position:
The Applicants have not adequately considered the economic cost effects of off-site sabotage.
(Environ-mental).
The Staff opposes this contention for the reason that it fails to satisfy the "basis" and "specificity" requirements of 10 C.F.R. 5 2.714.
The simple assertion that the transmission line routes are public and that transmission line towers can be toppled easily does not support the contention.
The Intervenor has failed to indicate any reason why she believes that such sabotage will occur at the Palo Verde Station or that it can have any substantial effect on the economic viability of the facility.
The statements in the Intervenor's "Explanation" are, in essence, nothing more than speculation.
CONTENTION NO.
28 (Revision of Contention No.
28 of Intervenor's Supplement).
The cost of PVNGS outweighs the cost of alternative sources of energy.
The Applicants have not sufficiently met the requirements of 10 C.F.R. 51.21:
The Applicants have failed to show the alternative available to meet Arizona's energy needs.
(Environmental).
1 t
I I
Position:
The Staff opposes this contention for the reason that it lacks the basis and specificity required by 10 C. F. R.
5 2. 714.
This contention is nothing more than a
collection of bare assertion that the costs of PVNGS outweigh the costs of alter-
- natives, that Applicants have not met the requirements of 10 C. F. R.
5 51.21, and that the Applicants have failed to discuss the available alternatives to PGNS.
There is no bases stated to support.any of these assertions.
The construction permit Final Environmental Impact Statement did consider various alternatives and their costs relative to PVNGS (FES, September
- 1975, Chapter 9) and the Licensing Board evaluated that discussion (LBP-76-21, 3
NRC 662, 690-693, (1976)).
Further-more, the Intervenor has not indicated how the Applicants have failed to meet 10 C.F.R. 5 50.21.
In sum, the Intervenor has totally failed to show how the consideration of alternatives to PVNGS has been deficient.
Accordingly, the contention lacks the required basis and specificity.
- Moreover, as the Board in Detroit Edison Co.
(Enrico Fermi Atomic Power Plant, Unit 2) LBP-79-1, 9
NRC 73, 86 (1979) noted the assessment of alternatives is more properly performed at the construction permit stage of the review.
The Board in that proceeding citing 10 C.F.R. 5 51.21 added:
At the very least, we would require a strong showing--
not present here that there exists a significant issue which had not previously been adequately considered or significant new information which had developed after the construction permit review.
III.
CONCLUSION For the reasons stated
- above, the Staff believes that only Contention 68 of the contentions set forth in Appendix B to the Stipulation should be accepted by this Board as a valid contention in this proceeding.
Respectfully submitted,
//. ~g
'enry J.
McGurren Counsel for NRC Staff Dated at Bethesda,
- Maryland, this 19th day of December, 1980.
I P
1 A
UNITF 0 STATES OF I"..;";i CA llUCl.EAR REGULATORY C".'I".SION BEFORE THE ATOllIC SAFETY AND LIC'SING BOARD In the t'iattor of ARI:.'0.'lA i"'U L C SERVICE C(i ~i'I'<llY, et al.
(Palo Verde huclcar Generating
- Station, Units 1, 2 and 3)
)
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)
Dc.'.~t.'l~s.
STN 50-"P8
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II~I STH 50-'9 STN 50-530 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF
RESPONSE
TO CONTENTIONS FILED BY THE INTERVENOR, PATRICIA LEE HOURIHAN" in the above-captiohed 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 internal mail system, this 19th day of December, 1980:
Ro'~crt ll. I.- o, Esq.,
Chairm-n
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission l ashington, DC 20555 Dr.
Ricli~:) d F.
Cole
- Atomic Safety and Licensing BGald U.S.
I'luclea) negulatory Commission Washin.'ion, UC 20555 Dr.
Dixon Gal 1 ahan Union Carbide Corporation P.O.
Box Y
Oak Ri~ge, TN 37830 Arthur C.
Ge!>r, Esq.
Charles Bischoff, Esq.
Snel1 5 li'ili"::er 3100 Valley,.>>ter
- Phoenix, AZ 85073 lis.
Lee Hourihan 6413 S. 26th Street Phoenix, Arizona 85040 Ate:,ic Safety and Licensing
. oard Panel
- U.S. Nuclear Regulatory Co.:~:,"iss'.on
',.".=-,ington, DC 20555 Atomic Safety and Licensing Appeal Board Panel
- U.S. Nuclear Regulatory Comaission 1'ashington, DC 20555 Do -keting and Service Section
- Office of the Secretary U.S. Nuclear Regulatory CGih7iission h'ashington, DC 20555 Counsel for NRC Staff
1 f