ML18081A747

Response in Opposition to Public Advocate of State of Nj 791030 Supplemental Argument Supporting Motion for Reconsideration of Colemans Contention 13.Colemans Failed to Demonstrate Relevance of Claim.Certificate of Svc Encl

ML18081A747
Person / Time
Site:	Salem
Issue date:	11/13/1979
From:	Wetterhahn M Public Service Enterprise Group
To:
References
NUDOCS 7912140030
Download: ML18081A747 (7)

Text

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• J UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

PUBLIC SERVICE ELECTRIC AND ) Docket No. 50-272 GAS COMPANY, et al. ) (Proposed.Issuance of

) Amendment to Facility (Salem Nuclear Generating ) Operating License Station, Unit 1) ) No. DPR-70)

LICENSEE'S RESPONSE TO "SUPPLEMENTAL ARGUMENT IN SUPPORT OF MOTION FOR RECONSIDERATION OF DISMISSAL OF COLEMANS' CONTENTION NUMBER THIRTEEN" On October 30, 1979, the Public Advocate of the State of New Jersey, counsel for Mr. and Mrs. Alfred C. Coleman, submitted a pleading styled "Supplemental Argument in Support of Motion for Reconsider,ation of Dismissal of Colemans' Contention Number Thirteen." As discussed below, Licensee, Public Service Electric and Gas Company, et al., ("PSE&G")

submits that the Atomic Safety and Licensing Board ("Licensing Board") should not consider the merits of this pleading.

Even if the Board should consider the arguments advanced, the Colemans have still failed to demonstrate that their motion for reconsideration should be granted.

G

The Commission's regulations and case law are clear that only motions and answers to motions may be filed. 10 C.F.R. §2.730(c) states that "[t]he moving party shall have no right to reply, .:except as permitted by the presiding officer *.* II See also Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 NRC 470, 471 (1978);

Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 745 n.9 (1978). Moreover, the Colemans must seek leave prior to filing a reply brieI. PUblic Service Company of Oklahoma (Black Fox Station, Unit 1 & 2), LBP-76-38, 4 NRC 435, 441 (1976). Ther,efore the supplemental argument in support of the motion should be stricken as an impermissible pleading.

Were the Board to consider the merits, the Colemans' motion should be denied, even taking into account the ad-

_y ditional arguments advanced. The Colemans claim that

.information. regarding r.adiation exposures experienced during the rer~cking of the spent fuel pools at the Peach Bottom Atomic Power Station was to be provided. Initially, the Licensee was never asked for this information nor has it made any representation that such data would be provided by it. The Colemans have failed to demonstrate the relevance of this information to the Salem case. The Peach Bottom.

. .1/ See also Licensee's Response to Motion for Reconsidera-tion--ci'f"""°Colemans' Contention No. Thirteen dated August 31, 1979.

facilities are boiling water reactors, while Salem Unit 1 is a pressurized water reactor. There has been no showing that the racks or methodology for changfng the racks have any I

similarity with those to be employed at Salem Unit 1. To the extent that this information may be considered related to this proceeding, the Colemans could have and should have requested . . the information they now seek during the extended period for discovery which was permitted by the Board. They have not demonstrated why the Board should grant the requested relief to give the .Colemans what clearly should have been pursued during discovery in accordance with the Commission's Rules of Practice.

With regard to seeking the information from the Staff, the Colemans have failed to inform this Board of a vital fact relevant to its decisionrnaking. The Colemans have 2/

already made a request under the Freedom of Information Act~

3/

and the NRC's implementing regulations~ for this data

(.Appendix .A contains a: copy of the Colemans 1 undated request) and have been informed by letter dated August 23, 1979 that none of the requested information was in the possession of the NRC (Appendix B contains a copy of the NRC reply).

Thus, they would have the Board do a useless act and have withheld information from the Board which could have af-fected its decision in this matter .

...l:_I 5 u.s.c. 552 et seq.

_]_/ 10 C.F.R. Part 9, Subpart A.

4 The remainder of the brief attempts to argue from material taken out of context from another proceeding that information provided to the Board by the NRC Staff was incorrect. The fallacious premise underlying this argument is that there is necessarily a similarity between the situation at Oconee and at Salem Unit 1 *. However, the Colemans offer nothing which would demonstrate that any disparity in estimates cannot be explained by differences in design, procedures and other circumstances existing at the 4/

two facilities.- In any event, these are matters which should have been pursued during the discovery phase of this proceeding; there is no reason to permit further discovery on these matters at this time.

In their argument, the Colemans misstate the Licensee's position with regard to the Commission's "as low as reasonably achievable" ("ALARA") standard. It is clear that "Licensee's Response to the Motion for Reconsideration of Colemans'

• • Contention No. Thirteen" addressed only the application of the ~ standard to Contention 13 in this proceeding which has no connection with the consideration of alternatives.

The Colemans distort the Licensee's position addressed to a limited point by trying to apply it beyond its obvious limits and give it universal application.

_!/ Informal contacts reveal that (1) the Staff has aubsequently reduced its estimates of the Oconee occupational doses and (2) the estimated doses resulted from the condition of the Oconee spent fuel and the fact that the Oconee racks were welded to the liner rather than bolted as is the case at Salem Unit 1.

Radiation doses may certainly be considerations in the evaluation of viable alternatives in a particular licensing action; however, the fact that the radiation dose to the public or to radiation workers associated with one alterna-tive may be less than another, does not mandate the selection of that alternative. It is only one factor to the considered.

To give an example, if one alternative had a dose associated with it of .0005 man rem and another had a dose of .0006 man rem, it would be completely contrary to the mandate of the National Environmental Policy Act and the Commission's regulations to exclude all other considerations and be required to select the first alternative. Of course, with respect to any course of action ultimately selected, the Commission's ALARA standard would have to be implemented.

There is nothing in the cited staff position which is any way inconsistent with Licensee's position.

In conclusion, nothing further has been presented which would require reconsideration of the Board's prior rulemaking with regard to Contention 13.

Respectfully submitted, CONNER, MOORE & CORBER Mark J. Wetterhahn Counsel for the Licensee November 13, 1979

UNITED. STATES OF AMERICA NUCLEAR REGU;LATORY COMMISSION Before the-Atomic Safety and Licensing Board In the Matter of )

) I PUBLIC SERVICE ELECTRIC AND GAS ) Docket No. 50-272 COMPAJ.'IT, et al. )- (Proposed Issuance of

) Amendment to Facility (Salem Nuclear Generating ) Operating License Station, Unit 1) ) No. DPR-70)

CERTIFICATE OF SERVICE I hereby certify that copies of "Licensee's Response to 'Supplemental Argument in Support of Motion for Reconsidera-tion of Dismissal of Colemans' Contention Number Thirteen,'"

dated November 13, 1979, in the captioned matter, have been served upon the following by deposit in the United States mail, this 13th day of November, 1979: *

~*' *. .........

Gary L. Milhollin, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety Licensing Board Panel and Licensing Board U.S. Nuclear Regulatory 1815 Jefferson Street Conunission Madison, Wisconsin 53711 .Washington, D.C. 20555 Mr. Frederick J. Shon Barry Smith, Esq.

Member, Atomic Safety and Office of the Executive Licensing Board Panel Legal Director U.s ., Nuclear ,Regulatory U.S. Nuclear Regulatory Conunission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. James C. Lamb, III Richard Hluchan, Esq.

Member, Atomic Safety and Deputy Attorney General Licensing Board Panel Department of Law and 313 Woodhaven Road Public Safety Chapel Hill, N.C. 27514 Environmental Protection Section Chairman, Atomic Safety and 36 West State Street Licensing Appeal Board Panel Trenton, N.J. 08625 U.S. Nuclear Regulatory Conunission Washington, D.C. 20555

Richard Fryling, Jr., Esq. Carl Valore, Jr., Esq.

Assistant General Solicitor Valore, McAllister, Aron Public Service Electric & Westmoreland

& Gas Company Mainland Professional Plaza 80 Park Place P. O. Box 175 Newark, N. J. 07101 Northfield, N. J. 08225 Keith Onsdorff, Esq. Off ice of the Secretary Assistant Deputy Public Advocate Docketing and Service Section Department of the Public Advocate U.S. Nuclear Regulatory Division of Public Interest Commission Advocacy. Washington, D. c. 20555 Post Off ice Box 141 Trenton, N. J. 08601 June D. MacArtor, Esq.

Deputy Attorney General Sandra T. Ayres, Esq. Tatnall Building, P. O. Box 1401 Department of the Public Advocate Dover, Delaware 19901 520 East State Str~et Trenton, N. J. 08625 Mr. Alfred C. Coleman, Jr.

Mrs. Eleanor G. Coleman 35 "K" Drive Pennsville, New Jersey 08070

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