ML18081A813
| ML18081A813 | |
| Person / Time | |
|---|---|
| Site: | Salem  |
| Issue date: | 12/21/1979 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7912310132 | |
| Download: ML18081A813 (10) | |
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.l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PUBLIC SERVICE ELECTRIC &
GAS COMPANY
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Docket No:nrn-272___....----
(Saiem Nuclear Generating Station, Unit No. 1)
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Proposed ISs-u-a-rlce of Amendment to Facility Operating License No. DPR-70 NRC STAFF RESPONSE TO MOTION FOR RECONSIDERATION OF DISMISSAL OF COLEMANS' CONTENTION NUMBER NINE The Staff of the Nuclear Regulatory Commission (Staff) hereby opposes the motion made by the Colemans for reconsideration of the portion of the Order of the Atomic Safety and Licensing Board (Board) dated April 30, 1979 dismissing Contention No. 9, on the ground that Intervenors' Motion is untimely and without merit.
BACKGROUND On April 30, 1979,* the Board in the above-captioned proceeding granted Licensee's Motion for Summary Disposition of Colemans' Contention No. 9, on the ground that the assertions made by the Colemans in response to the Licensee's Motion raised no issue of fact which could be addressed at a hearing.
Board Order of April 30, 1979 at 12.
Contention No. 9 states as follows:
- 9.
The Licensee has given inadequate consideration to alternatives to the proposed action.
In particular, the Licensee has not
- t adequately evaluated alternatives associated with the Nuclear
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- Regulatory Commission adopting the 11no action 11 alternative for Licensee's application, which would implicate the following:
- a.
expansion of spent fuel storage capacity at reprocessing plants;
- b.
licensing of independent spent fuel storage installations;
- c.
storage of spent fuel from Salem No. l at the storage pools of other reactors; and
- d.
ordering the generation of spent fuel to be stopped or restricted (leading to the slow-down or tennination of nuclear power production until ultimate disposition can be effectuated).
Intervenors now claim, some seven months after their contention was dismissed, that new information has recently surfaced which would significantly alter the Staff's assessment of alternatives to the proposed license amendment.
See Intervenors' Motion at 4. Specifi.ca,11.y, the Intervenors assert that the Staff has never evaluated the following: 1) the contents of a letter from the Licensee to the Board dated July 5, 1979 discussing a reduction in the number of fuel assemblies which will be discharged from Salem Units*.l.arid'2 in the future;
- 2) the fact that Salem Unit 1 has not operated for all of 1979; and 3) that the issuance of the operating license for Salem Unit 2 has been delayed for several more months.
The Staff believei that this claim is factually inaccurate and without merit, and that the Intervenors have not met their burden of proving that their motion should be granted. Therefore, the Staff opposes this motion for reconsideration of the dismissal of Contention No. 9.
A. ARGUMENT Intervenors' Motion Fails To Meet Either The Standard For The General Granting Of Motions Or The Standard For Motions To Reopen The Record.
The Commission has previously stated with regard to any motions filed in a proceeding that the moving party has the burden of proving its motion should be granted.
In the Matter of Consolidated Edison Co. of New York, Inc., and the Power Authority of the State of New York (Indian Point, Units 1, 2, and 3),
Information must be provided which tends to show that the allegations made in support of a motion are true.
Id.
The Commission assumes that the parties will assert their interests in a timely fashion with adequate support.
Id. at 15. Since they have provided no support for their allegation that "changed circumstances" have rendered the Staff's evaluation of alternatives inadequate, Intervenors in their present motion have failed to meet even this minimum standard.
Intervenors argue that the "new information" that they refer to in their motion meets the standard for reopening a closed record.
Intervenors' Motion at 5.
As has been mentioned in previous pleadings, the record in this proceeding has not as yet been closed.
Therefore, the standard for reopening the record asserted by Intervenor is not appl_icable to this proceeding.
However, the Staff feels obligated to point out that this standard as set forth by Intervenors is somewhat i.naccurately stated. The case cited by Interve~rs presents three necessary requirements for a motion to reopen the record.
The first is that the motion be timely; the second is that the motion be addressed to a significant safety or environmental issue; and the third, which was not mentioned by Intervenors, is that 11 *** it must be established that 'a different result would have been reached initially [had the material submitted in support of the motion] been considered. 111 In the Matter of Kansas Gas and Electric Company and Kansas City Power and Light Company (Wolf Creek Generating~
Station, Unit no. 1), ALAB-462, 7 NRC 320, 338 (1978).
Though Intervenors
.make a bare bones allegation that because of the three factors they characterize as new information the Staff's findings with regard to alternatives would be altered, they make absolutely no showing of the nature of the alteration they have in mind.
They have, therefore, made no attempt to comply with the third portion of the standard as set forth in ALAB-462, supra.
B.
Intervenors Have Failed To Present Any New Information Which Has Not Already Been Evaluated By The Staff.
Intervenors argue that the reduced number of fuel assemblies which will be discharged from Salem Unit 1 in the future, the fact that Salem Unit 1 has been shut down since April of 1979, and the fact that the Commission has deferred licensing of nuclear power plants for several more months, represent changed circumstances which were not evaluated by the Staff.
Intervenors contend that were such facts to be considered at the present time, the Staff would be likely to reach a result different than that contained in the Environmental Impact Appraisal (EIA) wjth regard to the evaluation of alternatives.
Intervenors\\ Motion at 5
. They do not, hm-1ever, show in what way the Staff's findings in the EIA would indeed be changed.
Intervenors' premise that the alleged new infonnation was never evaluated by the Staff is inaccurate.
At the hearings which took place on July 10-11, 1979, the Staff testified as to the contents of a letter dated July 5, 1979 sent by the Licensee to the Board in this proceeding.
Tr. 1025 et~* This letter discussed a reduction in the number of fuel assemblies to be discharged from Salem Unit l and Unit 2 in the future.
Counsel for Intervenors was offered an opportunity to cross-examine the Staff as to the effect of the contents of this letter on the conclusions reached in the EIA.
Intervenors' Counsel availed himself of this opportunity at some length.
Id.
In response to his questions, the Staff recalculated the dates at which the Salem Unit 1 and Salem Unit 2 spent fuel pools would be full, Tr. 1026, and stated that the change in the number of discharged fuel assemblies would have a minor affect on their calculations. Tr. 1026.
The Staff witnesses also made it plain that even with the reduction in the number of fuel assemblies to be discharged from Salem Unit 1 and Salem Unit 2, that availability of away-from-reactor storage for the use of the Licensee still remains an uncertain alternative.
Tr. 1137-38.
Therefore, the conclusion stated in §7.3 of the EIA that away-from-reactor storage is an unreliable alternative due to the lack of a precise date when such storage would be available, was re-affirmed by the Staff at the hearing even though the Staff witnesses were aware of the information l I submitted to the Board by the Licensee in its letter of July 5, 1979. Tr. 1137-38.-
J/ It should be noted that in the EIA the Staff stated that away-from-reactor storage "could not be expected to be available until at least 1983 or 1984." EIA §7.3, p. 16. (Emphasis added.) At the July hearing the. Staff stated that an away-from-reactor storage facility might be available between 1984 and 1990.
Tr. 1137. Therefore, Intervenors' statement in their motion for reconsideration concerning the availability of away-from-reactor storage in 1983 to 1984 is an inaccurate representation of what is actually contained in the record.
Intervenor's next argument that the Staff's assessment is defective because it assumes that Salem Unit l will operate throughout all of 1979 is also inaccurate.. By the time of the hearing, Salem Unit l had already been shut down for refueling for approximately three months.
The Staff witnesses indicated during the hearing that they did not know exactly when Salem Unit l v
would restart.
Since the Staff reiterated its belief.that the away-from-reactor storage alternative was uncertain, it cannot be said that the fact of how long Salem Unit l operated in 1979 was not taken into account.
Intervenors' argument that the delay in the issuance of the Salem Unit 2 operating license is new information which was not considered by the Staff must fail for the same reasons as those mentioned above.
At the time of the July hearing it was known that the Staff was not conducting reviews of applications for operating licenses. See SECY-79-344 (May 19' 1979).
The Staff's witnesses gave no independent estimate of when the Salem Unit
'Ji operating license would be issued.
There is no indication in the record 2
2} The Staff testified that if the refueling were the item upon which the restart of Salem Unit l was contingent then it could restart in the first or second week of August.
Tr. 1029.
However, the Staff made it plain that in the case of Salem Unit l there were other factors to be considered before the plant could restart. Id.
Any calculations made based on an August of 1979 restart date were made at the insistence of Counsel for Intervenor and not because the Staff felt this to be the time frame in which Salem Unit l would actually restart. See Tr. 1030.
31 Again it was Counsel for Intervenors who put forth the September 1979 date for the granting of the license for Salem Unit 2 for the purposes of making theoretical calculations. Tr. 1033.
that the uncertainty as to when the Salem Unit 2 license would be issued affected the Staff's position concerning alternatives to the proposed license amendment.
Intervenors have failed to demonstrate that the information which they say is "new" was not available to them in some form at the time of the July hearing.
In add.ition, they have failed to demonstrate in what way this "new information" would change the Staff's findings concerning alternatives as stated in the EIA and supplemented by Staff testimony at the July hearing.
Therefore, Al this motion for reconsideration should be denied.
C.
Intervenors' Motion Is Untimely And, Therefore, Should Not Be Entertained By This Board.
As pointed out above, the information which Intervenors characterize as "new information" was to a great extent available to them at the time of the hearings which took place in July of 1979.
Therefore, if this Motion were to be made at all it should have been made during or shortly after the Al The complaints of Intervenors' Counsel that he has not received certain information with regard to the Peach Bottom nuclear facility and the presence of "radioactive crud" in a pipe at Salem Unit l are inappropriately mentioned in this motion.
If Intervenors' Counsel believes that the Staff is somehow deliberately withholding information from him, his appropriate remedy would be to file a request under the Freedom of Information Act.
It should also be noted that this vehicle was indeed used by Intervenors with regard to the Peach Bottom facility information.
See Appendix A to Licensee's Response to "Supplemental Argument in Support of Motion For Reconsideration of Dismissal of Coleman's Contention Number Thirteen."
July hearings, and not some five months later. This Motion should not be 5/
considered by the Board because of its untimeliness.-
CONCLUSION For the reasons set forth above, Intervenors' Motion for Reconsideration should be denied since: 1) Intervenors have not met their burden of proving why their Motion should be granted; 2) the Motion is untimely, and 3) the Motion is without merit.
Dated at Bethesda, Maryland this 21st day of December, 1979.
Respectfully submitted,
-.-,, I\\ 1tm 'E!__ ~
\\_, \\.LJLJ~ '
Janice E. Moore Counsel for NRC Staff
§}
In their Motion, Intervenors refer to a letter from previous Staff Counsel to the Board dated October 15, 1979 as soliciting further submissions on the part of Intervenor.
The contents of this letter have been mischaracterized.
The letter states: "The Staff has no objections to including this affidavit, into the record of this proceeding.
However, we would agree with the licensee that 'additional examination be permitted only if a showing in writing is made that established a substantial challenge to the methodology and concluSions contained therein.
111 This letter was attached to the affidavit of Mr. Jack~:--.
Donohew concerning the Relative Toxicity Index for the expanded spent fuel storage capacity at Salem Unit l. The statement in this letter concerns cross-examination only.
It bears no relationship whatsoever to the submission by Intervenorsof any new motion for reconsideration of a contention which was previously dismi~sed by the Board.
e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY Arm LICENSING BOARD In the Matter of PUBLIC SERVICE ELECTRIC &
GAS COMPANY (Salem Nuclear Generating Station, Unit No. l)
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Docket No. 50-272
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Proposed Issuance of Amendment
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to Facility Operating License
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No. DPR-70.
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CERTIFICATE OF SERVICE I hereby certify that copies of 11 NRC STAFF RESPONSE TO MOTION FOR RECONSIDERA-TION OF DISMISSAL OF COLEMANS 1 CONTENTION NUMBER NINE 11 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 21st day of Decem-ber, 1979.
Gary L. Milhollin, Esq., Chairman*
1815 Jefferson Street Madison, Wisconsin 53711
- Mr. Frederick J. Shon Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. James C. Lamb, III 313 Woodhaven Road Chapel Hill, North Carolina 27514 Richard Fryling, Jr., Esq.
Assistant General Solicitor Public Service Electric and Gas Company 80 Park Place Newark, New Jersey 07101 Mark J. Wetterhahn, Esq.
Conner, Moore & Corber 1747 Pennsylvania Avenue, N.W.
Suite 1050 Washington, D.C.
20006 c~*rf Val ore.* Jr., Esq.
53 5. Tilton Road Northfield, N. J. 08225 Lower Alloways Creek Township c/o Mary o.* Henders~n Municipal Building Hancock's Bridge, New Jersey 08038
Mr. Alfred C. Coleman, Jr.
Mrs. Eleanor G. Coleman 35 "K" Drive Pennsville, New Jersey 08070
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Atomic Safety and Licensing*
Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Dale Bridenbaugh M.H.B. Technical Associates 1723 Hamilton Avenue Suite K San Jose, California 95125 Richard M. Hluchan, Esq.
Rebecca Fields, Esq.
Deputy Attorney General State of New Jersey
- t" 36 West State Street Trenton, New Jersey 08625 Keith A. Onsdorff, Esq.
Assistant Deputy Public Advocate Department of the Public Advocate 520.East State Street Trenton, New Jersey 08625 June D. MacArtor, Esq.
Deputy Attorney General Tatnall Building P.O. Box 1401 Dover, Delaware 19901 Janice E. Moore Counsel for NRC Staff
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