ML18025B439
| ML18025B439 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 04/03/1981 |
| From: | Bustion D, Laroche W, Sanger H, Wallace L TENNESSEE VALLEY AUTHORITY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8104140382 | |
| Download: ML18025B439 (17) | |
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Docket Nos. 50-259
~ OLA TENNESSEE VALLEY AUTHORITY ~
0-260 OLA
~0-22M KA (Browns Ferry Nuclear Plant, (Low"Ievel Radioactive Units 1, 2, and 3) Waste Storage Facility)
APPLICANT TENNESSEE VALLEY AUTHORITY'S RESPONSE TO PETITIONERS NOEL M. BECK ET AL. AMENDMENT AND SUPPLEMENT OF PETITIONS TO INTERVENE INTRODUCTION This. proceeding concerns the Tennessee Valley Authority's (TVA) application to amend the Browns Ferry Nuclear Plant operating.
license for the sole purpose of obtaining permission to store onsite for up to five years, low-level radioactive waste (LLRW) generated in the course of normal plant operation. Notice of an opportunity for hearing (Notice) was dated December ll, 1980 (45 Fed. Reg. 81,697).
Petitioners filed a number of identical petitions for leave to inter" vene on an individual basis.
TVA takes the positi:on that the petitions should be denied because none demonstrates a sufficient injury to any cognizable interest to'justify intervention as of right or in the discretion of the Nuclear Regulatory Commission (Commission).
Subsequent to the Atomic Safety and Licensing Board's (Licensing hoard or Board), order setting a prehearing conference, all petitioners, through their attorneys, amended their- petitions and stated four contentions which they now seek to litigate..1 This document constitutes TVA's response to the amended petitions to intervene.
STATEMENT 2
TVA owns and operates the 3-unit Browns Ferry Nuclear Plant located in Limestorie County, Alabama. Each unit is licensed for a thermal power level of 3,293 megawatts. Commercial operation of Units 1, -2, and 3,began "on August 1, 1974, March 1, 1975, and March 1, 1977, respectively.
Operation of Browns Ferry results in planned generation of LLRW. This waste consists of ion exchange and condensate demineralizer resins and miscellaneous trash such, as polyethylene boots, rubber shoe 'covers, plastic hose, gloves, pine crates, scrap iron, mops, and brooms. Storage would be accomplished in discrete, reinforced concrete, 1 This amendment was mailed on March 26, 1981. Prior to that date,.
petitioners Betty L. Martin, John R. Martin, and Nancy Muse sent letters to the Commission discussing various areas of concern. Since petitioners have consolidated their appearance and the March 26, 1981 amendment purports on its face to be the formal statement of contentions by these petitioners, we will not discuss any aspect of these earlier letters.
2 TVA's a corporate agency and instrumentality of the United States established under the Tennessee Valley Authority Act of 1933, 48 Stat. 58, as amended, 16 U.S.C. gg 831-831dd (1976; Supp. III, 1979).
above-ground, safety-related structures located on a portion of the Browns Ferry reservation. TVA presently needs this interim storage capacity.
The application is solely for the storage of ILRW for up to five years. The facility is useful to and needed for plant operations without regard to long-term storage or the p'ossible use of a volume reduction system. Those measures are not bein re uested at this time.
These could be the subject of later applications for license amendments, when and if TVA determines to do so.
Petitioners'mended Petition Fails To State an Grounds on Which Standin To Intervene Can Be Based.
Petitioners'mended petition alleges that they wish to intervene on all "safety," "health," and "environmental" aspects of this matter. It provides. no additional factual information by which this Board could discern an interest which might be affected. Conse-quently, TVA's previous conclusion that a sufficient interest had not been shown remains unchanged. Because this is a proceeding in which no hearing will be held unless leave to intervene is granted, the Board must take especial care to assure itself that petitioners have made a strong demonstration of a real stake in this proceeding
(In re Cincinnati Gas 8 Elec. Co. (William H. Zimmer Nuclear Power Station), ALAB"305, 3 NRC 8; 12 (1976)).
The Board's Review of this License Amendment Is Limited to the Sco e of A licant's 'Re uest.
The only matter before this Board is TVA's application for five-year LLRW storage. Petitioners would have this Board review other matters such as permanent storage and volume reduction. Commission adjudicatory tribunals are precluded 3 from entertaining issues which do not. come within the reach of matters which are placed before them for decision (In re Pub. Serv. Co. of New Ham shire (Seabiook Station, Units 1 and 2), ALAB-513, 8 NRC 694 (1978); In re Portland Gen. Elec. Co.
(Trojan Nuclear Plant), ALAB-524, 9 NRC 65, 70 n.9 (1979)).
The scope of the Board's inquiry in this proceeding is limited to that set out in the Notice (In re Pub. Serv. Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976); accord, In re Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 (1979); In re Commonwealth Edison Co. (Carroll County Site), ALAB-601, 12 NRC 18, 24 (1980)).
Moreover, in a proceeding for an amendment to an operating license, just as in a proceeding for an operating license, the hearing may not encompass a de novo review of the entire subject matter of 3 Except where the Board ~sua s outs reviews serious safety issues pursuant to 10 C.P.R. g 2.760a (1980).
the license application. Instead it is limited to'resolving specific contentions (see In re Wisconsin Elec. Power Co. (Point Beach Nuclear Plant, Unit No. 2), ALAN-31, 6 ANC 689, 690 (1971); accord, In re Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, 358 (1972), aff'd sub nom. Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974).
[Petitioner] does not challenge the guidance given to this Licensing Board in the hearing notices or the Licensing Board's compliance with that guidance. Instead, [petitioner] asserts that the Licensing Board must conduct .what amounts to a de novo review of all matters (i.e., radio-logical safety as well as environmental) relating to the issuance of the operating license, whether or not in controversy. As we have previously held with respect to radiological safety matters, a proceeding of this type is not intended to encompass a de novo review but is "intended to resolve specific problems with respect to the.
plant in question." Absent a petition for inter-vention raising such problems, no public hearing need be held [id.; footnote omitted).
The purpose of contentions in the hearing process is to narrow the focus of the proceeding. Accordingly, a licensing board must admit only adequately stated contentions. The Board is under no general mandate to explore and resolve any potentially relevant matter if it has. not been properly raised by the intervening parties (In re Consol. Edison Co. of New York (Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7,. 8 (1974); accord, In re Du uesne Li ht Co.
(Beaver Valley Power Station, Unit No. 1), LBP-78-16, 7 NRC 811, 814 (1978) (operating license amendment), aff'd, ALAB-484, 7 NRC 984 (1978)). Consequently, if the Board should find no contentions which comply with the Commission rules of procedure, it must under the
terms of the Notice deny the petitions for leave to intervene and enter an appropriate order (In re Pacific Gas 8 Elec. Co. (Stanislaus Nuclear Project, Unit 1), ALAB-400, 5 NRC 1175 (1977)). It is under no obligation to inquire further (Indian Point, CLI-74-28, ~su ra; Union of Concerned Scientists, ~su ra).
Petitioners Have Failed To Set Forth Even One Ade uate Contention.
A. General considerations A number of appeal board and licensing board decisions have s
discussed the principles which should be applied in determining the adequacy of a contention. While a determination as to the sufficiency of a contention must always be made on a case-by-case basis, several guiding factors have been noted. First,
[t]he applicant is entitled to a fair chance to
'defend. It is therefore entitled to be told at the outset, with ~clarit and precision, what arguments are being advanced and what relief is .
being asked . . . . So is the Board. It should not be necessary to speculate about what a pleading is supposed to mean [In re Kansas Gas 8 Elec. Co.
(Wolf Creek Generating Station, Unit No. 1),
ALAB-279, 1 NRC 559, 576 (1975); emphasis added].
Merely contending that a proposal does not comply with the law or Commission regulations is not enough (id.).
Secondly, a contention must involve a specific factual issue (In re Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 191-92 (1973),
aff'd, CLI-73<<12, 6 AEC 241 (1973), aff'd sub nom. BPI v. AEC, 502 Z.2d 424 (D.C. Cir 1974)). This rule is especially important in this instance in order that 'resources are not wasted on a hearing which would not otherwise be held (Indian Point, CLI-74-28, ~su ra).
In [this] . . . proceeding, unlike a construction permit proceeding, a hearing is not mandatory and, if held, is restricted to those matters which have been put into controversy by the parties and are determined by the Licensing Board to be issues in the proceeding. . . . There is, accordingly, especially strong reason in [this]
proceeding why, before granting an intervention petition and thus triggering a hearing, a licensing board should take utmost care to satisfy itself fully that there is at least one contention advanced in the petition which, on its face,
, raises an issue clearly open to adjudication in the proceeding [In re Gulf States Utils. Co.,
(River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 n.l0 (1974)].
board:
. must be satisfied, with respect to each contention which the petitioner seeks to litigate, that a genuine issue in fact exists. Any contention which on preliminary examination does not survive the application of that standard is to be excluded from consideration at the evidentiary hearing
[In re Du uesne Li ht Co. (Beaver Valley Power Station, Unit No. 1), ALAB-109, 6 AEC 243, 245 (1973)] ~
Again in the Point Beach proceeding, the Appeal Board reemphasized:
We continue to find it difficult to perceive "any rational basis for triggering the hearing mechanism without regard to whether there are, in fact, any questions'hich even possibly might warrant, resolution in an adjudicatory proceeding" [In re Wisconsin Elec. Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491, 505 (1973)].
Thus,. this Board must look carefully at the four contentions which the petitioners seek to litigate and determine whether they raise specific factual issues.
B. Contentions 1 2 and 3 are inade uate.
Contention 1 states that the Board should deny the applica-tion -for an amendment because it is in violation of Federal law, specifically the National Environmental Policy Act (NEPA). Contention 2 is similar in that it alleges that TVA has supplied insufficient information on which the Commission can base its environmental assessment of the proposal. Contention 3 states that an environmental impact statement is necessary prior to implementation of TVA's "long term" plans. Petitioners also request that consideration of TVA's amendment be continued pending an application for permanent st'orage and volume reduction.
Without regard to the coxrectness of petitioners'egal arguments, contentions 1, 2, and 3 raise matters which may not be litigated in this proceeding. First, statements to the effect that.
TVA's application violates NEPA or is an inadequate basis on which to make environmental judgments are legal, not factual, ax'guments which concern the ultimate conclusions of law that the Commission must make. Such allegations must be rejected on that basis and because LBP-78-16, ~su ra, at 813 (Commission conclusion that an action will not violate NEPA standing. alone is not an issue which may be litigated
before the licensing board); see also In re Portland Gen. Elec. Co.
(Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 744 (1978), aff'd, ALAB-524, 9 NRC 65 (1979)).
Even if petitioners'llegations were construed. as an attempt to contest factual issues, they are too generalized and are set forth without any supporting bases. Thds, they must be rejected (see,'e , In re Allied-General Nuclear Servs. (Barnwell Fuel Receiving and Storage Facility), LBP-76-24, 3 NRC 725, 728-29 (1976) (failure to detail how the environmental statement is defective is an appropriate grounds for rejecting a contention)).
Secondly, to the extent contentions 1, 2, and 3 raise any issue about TVA's long-term storage options for LLRW or'volume reduction effects, these matters are not properly the subject of this proceeding.
(Marble Hill, ALAB-316, ~su ra). When and if TVA determines additional measures are required, it will submit a further license application.
At that time, if appropriate, these issues may be raised in a separate proceeding.
C. Contention 4 is inade uate.
Contention 4 concerns two matters. The first is the health and safety effects of the volume reduction system. As noted above, this is an irrelevant matter which may not be litigated in this forum at this time. The second is a wholly general allegation that the" data TVA has submitted is inadequate to support any Commission determination to license the facility. As pointed out above, this is
nothing more than an ultimate legal conclusion, whether a license amendment can be granted, on which intervention may not be based. In order to'participate in this proceeding, specific contentions must be alleged (section 2.714). Simply put, TVA and this Board cannot practically be expected to discern from petitioners'leading what specific weaknesses in TVA's application are thought to exist, and in fairness are not required to do so. Thus, this contention must be rejected as vague if it is viewed as an attempt to raise any factual issue.
The Petitions To Intervene Should Be Dismissed.
4 Petitioners are represented by experienced counsel.
TVA's extensive application, as the record will show, was available to them. They have been given sufficient time, under the rules (three and one-half months) to frame adequate contentions. They have failed to state a single contention with the requisite specificity.
I The Board has no,legal duty to recast. petitioners'ontentions into a form which complies with 10 C.Z.R. g 2.714 (In re Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 406 4 Mr. Ellis is an experienced licensing attorney familiar with all aspects of pleading and practice before the Commission (see, ~e.
In re Tennessee Valley Authorit (Hartsville Nuclear Plant Units lA, 2A, 1B and 2B), ALAB-367, 5 NRC 92 (1977)).
10
(1974)), nor in this instance has it any responsibility to do so as a matter of policy.
We are unimpressed with. petitioner's suggestion that it is not possible for them to state specific contentions until after they have been.
permitted to intervene and to avail themse'ives of discovery. . . . More fundamentally, the sugges-tion ignores the fact that there is abundant information respecting the particular facility availabl'e to the public at the time of the publication of the notice of hearing or of an opportunity for hearing including at least the applicant's detailed safety analysis and environ-mental reports.
dg d There is an obvious public interest in this proceeding moving forward without the untoward delay which would be occasioned were accorded still if petitioners another chance to comply with Commission regulations [In re Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 192 (1973)}.
A high degree of specificity is required of a petitioner represented by experienced counsel (Wolf Creek, ALAB-279, ~su ra, at 576-77).
For the above reasons, TVA respectfully submits that, because S
all petitioners'ontentions must be rejected for failing to comply with
section 2.714, the petitions for. leave to intervene should be dismissed with prejudice.
Respectfully submitted, erbert S. Sanger, Jr.
General Counsel
,Tennessee Valley Authority Knoxville, Tennessee 37902 Telephone No. 615-632-2241-FTS No. 856"2241 I,e is E. Wallace Deputy General Counsel W. Walter LaRo e Do aid R. Bustion II Attorneys for Tennessee Valley Authority Knoxville, Tennessee April 3, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD PANEL In the Matter of Docket Nos. 50"259 OLA TENNESSEE VALLEY AUTHORITY 50-260 OLA 50-296 OLA (Browns Ferry Nuclear Plant, (Iow-Ievel Radioactive Units l, 2, and 3) Waste Storage Facility)
CERTIFICATE OF SERVICE I hereby certify that I have served the original and two conformed copies of the following document on the Nuclear Regulatory 0
Commission by depositing them in the United States mail, postage
. prepaid and addressed to Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch:
Applicant Tennessee Valley Authority's Response to Petitioners Noel M. Beck, et al., Amendment and Supplement of Petition To Intervene and that I have served a copy of the above document upon the persons listed below by depositing them in the United States mail, postage prepaid and addressed:
Jessica H. Iaverty, Esq.
Stephen H. Lewis, Esq.
Leroy J. Ellis III, Esp.
421 Charlotte Avenue Office of the Executive Nashville, Tennessee 37219 Legal Director U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, DC 20555 Appeal Board Panel U.S. Nuclear Regulatory Commission Herbert Grossman, Esp. Washington, DC 20555 Administrative Judge and Chairman, Atomic Safety and Licensing Board Dr. Quentin J. Stober, U.S. Nuclear Regulatory Commission Administrative Judge Washington, DC 20555 Fisheries Research Institute University of Washingt'on Mrs. Elizabeth B. Johnson, Seattle, Washington 98195 Administrative Judge Oak Ridge National Laboratory P.O. Box X
~
Building 3500 Oak Ridge, Tennessee 37830 This r8 dsy of Apsil, 1981.
W. Walter LaRoche Attorney for Applicant .
Tennessee Valley Authority