ML19029A368

Public Service Electric & Gas Co. - Licensee'S Answer to Petition for Leave to Intervene of Eleanor G. Coleman and Alfred C. Coleman

ML19029A368
Person / Time
Site:	Salem
Issue date:	03/27/1978
From:	Wetterhahn M Conner, Moore & Corber, Public Service Electric & Gas Co
To:	Office of Nuclear Reactor Regulation
References
Download: ML19029A368 (17)

Text

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. UNITED STATES OF AMERICA . .

NUCLEAR REGULATORY COMMISSION

• • 3/~~f*.*

• . In the Matter of .* . ' .. - ~ ..

• PUBLIC SERVICE ELECTRIC*& GAS, Docket No. 50-272

• . COMPANY, et al.

(Sal~m Nuclear Generating .

Station,. Unit 1)

• LICENSEE'S ANSWER TO PETITION FOR LEAVE TO INTERVENE*.*

• ., ' OF ELEANOR G** COLEMAN AND ALFRED C: COLEMAN

._; __ '. On January 13, 1978,_ the Nuclear Regulatory Conunission

("NRC" or ,;Conunission".) published in 'the Federal Register * .. '.

(43 Fed*~ Reg. 5443). a notice of_- ."Proposed Issuance of Amend-ment to Facility. Operating License" to.:'permit revision of * -

the.technical specifications for.theSalemNuciear Genera-ting Station Unit: 1 to -allow_ an. increase. in- fuel storage *... ,.- .!

• \.*,

capacity in. t~e.*spent .fuel: pool~** .*This notice permitted any-.

. person whose interest might be affected by the -'proceeding to . _

file *a request for a hea~.ing in the: form.of a:petition for.* .  : ~.*

/

leave to *intervene,

• with respect to the issuance of . the _

amendment to the subject operating,'._license.

• On March 20 ,: 1978, counsel for:'Licensee,: Public Service Electric & Gas Company, . et al. , . received £rom - the NRC' s.

Office of the Secretary, Docketing and Service Section, copies of a letter from Eleanor*G.* Coieman and Alfred c.

~;

Coleman, as well as two_Mailgramsto the Secretary'of*the*

NRC, a. 0 Petition to U.So Nuclear Regulatory Commission to Enjoin this Proceeding;" and a "Petition to the .U.Sc NRC for.

Leave to Intervene to Hold a Public Hearing* in the County of

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Salem, New Jersey, City of Salem"***("Petition").-:-_. As dis- . .

cussed below, PetitioneJ;"S have failed*to set forth their interest in this proceeding and have not: stated any con ten-.

tions which may be considerec;l under the Commission's Rules of Practice *., . Therefore,* their* petition should be denied.

Moreover, _no general right to amend the' submitted. conten-tions Should be given and the r~qUeSt that'.. H [t] he decision

• on this application should be set*aside until the.final disposition of. pending Docket .Number RMS0-3 *** is made" should be denied.

INTEREST

• Petitioners have completely .failed to address the interest requirements of 10 C.F.R. §2.714(a). They have not demonstrated, with particularity, the. facts pert'ain.ing to their interest and how that interest.would be affected by.

the outcome of this particular !united proceedingo This showing is particularly important in .this case where the 1/ On March 23, 1978, a copy was received in our* offices.

The delay can be attributed to an incorrect address appearing in the Federal Register which had been previously brought to the attention of the Docketing and Service Section.

requested action is very limited~ *- An interest which would suffice for a construction permit or operating license_ pro-ceeding may very well not.fulfill:the interest requirements_ .

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for this proceeding.-

Having failed to state the specific interest of the Petitioners and how that interest might be affected :.by the "granting of permission to increase.the number of fuel elements that can be stored in the,Salein Unit l fuel pool, the Petition should be denied.

CONTENTIONS Petitioners list 20 "contentions" *in their Petition *.

. These i'contentions" constitute_unparticularized assertions that fail to-meet the specificity. requirements of *lOC.F.R.*

§2.7140 While* technical terms .are.bandied about in.certain of the "contentions," there is rio indication that Petition-ers comprehend these terms or can utilize* them in their generally accepted usage~ Furthermore,-no attempt is made to relate these .terms or the very general assertions to. the particular nuclear facility at issue

• Some "contentions" attempt to raise matters far afield of the requested change which would permit additional fuel 2/ Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), LBP-75-22, 1 NRC 451, 454-5 (1975).

elements. to be stored onsite

• . . Petitioners .have a fundamental

. *misunderstanding of the purpose of this proceeding which* p~r- *.* .~ *, .

meates their "contentions.".:~ The reqti~sted action only involves

• salem Unit 1 and no other facility andcontentions must .be confined to matters related to the facility* at.issue.

Moreover, this Atomic Safety. and .. Licensing Board cannot

• consider*issues beyond the scope.of* the Notice. It.could not reconsider the initial licensing action on Salem unit 1 or any other facility. *Therefore, as discussed .below, many of the. "contentions" fall completely outside the scope of

._::i'.'

this proceeding and must be denied. Since many. of the*~

paragr~phs are.repetitious.~r may. b~ conveniently addressed

. as a group, they will be addressed together *..

Paragraph 1 asserts that *increasing the* number of spent fuel rods -stored "presents an unreasonable risk of radiation release and contamination of* the surrounding. area.u * . Para-graph 4 also makes the same recitation and attributes. :this 3/

to "lack of extended.expe:rience."- No further*factual

. basis .is '.given and the two paragraphs fail to present valid contentions for want of specificity.*

Paragraph 2.is another."shotglin.contention" merely listing areas of usual Staff site.review at the-construction*

3/ Paragraph 4 may be read as implying that foreign fuel may be stored at Salem Unit 1 *.

• There is no basis for this statement.

-s- ***;

permit.stage and asserting there are "discrepancies" without.*

any further specificatione As previously discussed, .the proposed.action merely involves.an increase in the number' of.

fuel racks in the existing storage pool. There is no basis for.consideration of this "contention."

• .Paragraph 3 asserts that there are some unnamed and un-specified "unresolved generic.and safety issues" contained in. NUREG-0410.

By Petitioners own admission, they cannot* .

assert that there are, in f~ct, .any such safe.ty issues and have not shown that they have any. application to the subject*.

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facility. - Even were there to* be *.*generic questions,**

Petitioners have not shown its applicability to Salem Unit 1.. Not having shown such a nexus, .this contention must be

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denied.-**

• . Paragraph 5 states that "increased density * *

• has yet to be tested for additional heat:load and ultimate effect on inventory and racks. '1 It is not possible* to discern *what Petitioners mean by this statement, nor is any reference given to the Licensee's technical submittals.

• This conten-tion must be* denied for.want of specificity.*

Denial of such contention in these circumstances is mandated by Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 773 (1970).

Id. An examination of NUREG-0410,"Category A Technical Activity No. A-28, II at pp. 273-89, does not rev.ea! any

. . '*:-*** unresolved technical problems, merely an effort* to .

standardize the NRC .Staff review of requests for increased spent.fuel storage.

In Paragraph 6, Petitioners contend "there is no assur-ance of commercial reprocessing, or off-site interim or per-6/

manent repository."- Paragraph 8 asserts "the applicant must demonstrate access to a 'safe and final' method of storing high level radioactive waste." Paragraph 19 states that 11

[a]pproval of the subject application will not force II those responsible to develop acceptable disposai Petitioners misunderstand the purpose of the requested NRC approval. The contemplated Commission action does not involve storage beyond the duration of the operating license for the Salem Nuclear Power Station, Unit 1. Any such request would be the subject of further licensing action.

This request does not involve long-term storage of nuclear waste in salt mines or at any other location. In a Decision 7/

• in Prairie Island and Vermont Yankee proceedings,- *.the NRC's Atomic Safety and Licensing Appeal Board held that:

We accordingly hold that, in the evalu-ation of a proposed expansion of the capacity of a spent fuel pool, neither the staff nor the Licensing'Board need concern itself with the matter of the ultimate disposal of the spent fuel, i.e., with the possibility that 6/ They also contend that a separate license is required in that the four fuel storage pools constitute a "waste repository." The Salem Unit 1 Facility Operating License, DPR-70, clearly permits possession of the spent fuel (see Paragraph 2.B. (6)) and no separate license is required.

7/ Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC ~~'

Slip opo at 18 (January 30, 1978).

9 .*

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the pool will become an indefinite or permanent repository for its contents. *This being so,. * *

. */*

the limitations placed by the Boards.below upon the scope of the inquiry here were proper and the intervenors' attack .upori these limita.tions

• must be rejected.

This holding is also dispositiveof Petitioner's.assertion.'**

that handling, storage;.and reprbcessing'of'radioactive 8/ . .

wastes must be considered.~

• The question of the emvirori- '*

• mental impact of the fuel cycle is also not .a question to be.

raised here *. In Public Service Eiectric & Gas companx " ( . .-

(Salem Nuclear Generating Station/ units l and 2) I ALAB-426,

• 6.NRC 206, 209 (1977), the Appeal Board:foundthat."[oJn.the basis of the interim rule*.**. * * .:.. an 'analysis. which is 'accepted . '*

by all members of the Appeal Board - we conclude that the

• balance for none of those facilities [which included Salem unit. 11 is tipped by the placement of fuel cycle environ-

• . mental impacts. on the scale [footnote. omitted]."*

. Paragraph .7 contends* "that* for.. *the subject storage*

facility plus 3 other such storage* faciiities .in the same.*

.vacinity [sicl,. applicant must prove beyond a reasonable doubt their ability to handle channeled and unchanneled fuel

. 8/. See also the Commission's notice in* the.Federal Register (42 Fed. Reg. 34391, july 5,1977). denying a petition

• for* rulemaking which would.have *required it to refrain from granting any operating licenses until a definitive safety finding on fuel storage is made, cited in Prairie Island, Sli~ op. at 14-iB.

and' fuel with burnable poison.rods inserted in-the assem-9/

blies m .. - Paragraph 9 relates . to certain hypothesized events leading to "emergency .situations .. ".* Neither .. of these*

paragraphs provide further specificity nor show how they are*

directly and specifically related.to*Salem:. Unit 1 and they should be denied . as contentions.*.**

Paragraphs 7,.9, 10, 11, 12, 13, and 16 take the position the NRC must expand its review,to include reexamina-tion of the other three spent fuel pools on Artificial Island. No basis is. given for_such assertion. Petitioner:

has not demonstrated that there is any.: iI1teraction among_ th~

spent storage pools _and that the proposal to increase the .

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• -.size of the Salem Unit 1 *pool is not entirely independent.- *

• Thus, to* the extent that Petitioners would require recon-*

sideration of the review already conducted of the other fuel pools, or require special consideration*of the increase in

• size of the Salem Unit* *l pool merely because of the existence of these other.facilities, the.contentions should be*denied ..

Since the application is for.an increase in storage, these questions should have been raised previously, inasmuch as the present Facility Operating.License gives authority to handle and store fuel. There is no hint as to why the procedures are inadequate because additional fuel is stored ..

Paragraph 11 alleges that visual inspection is not suf-ficient, while Paragraph 12 states that "detailed sys-tematic examinations have.not been conducted." These "contentions" also fail for want of specificity.

,* (

One further note needs to.be made with*regard to Para-graph lOo The fact that the NRC Staff .has notcompleted its.

Safety Evaluation*Report or ~nviro~me~tal.evaluation.does

• not excuse the requirement for an* intervenor to set forth

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definitive contentions at the outset.-

• In Paragraph 14, Petitioners "contend.that the Salem I storage facility structure is not constructed to withstand large aircraft** accidents* (i.e.,

• 747) ** ~ ** "

• It must* again be*

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emphasized- that the design of.the fuel stor~ge facility was fully examined at the operating license stage (See

• S.A~R. *ss.6 and Safety Evaluation of the Salem Nuclear Generating Station, Units 1 and 2, dated October 11:,. 1974, at page 2-6. The Staff concluded that "the Salem facility.

need not be designed or operated with special' provisions to protect the facility against the effects of an aircraft crash." .*No significant new* information is given by Petitioners

.as to why that evaluation need again be examined. Moreover, the design of the fuel storage building is unchanged and not at

• issue here. This "contention"* should be* denied.

• 11/ B.P.I. Vo A.E.C., 502 F.2d 424 (D.C. Cir. 1974).

~ See discussion at pp. 3-4, supra.

. Paragraphs 15 and 20 deal with general allegations that "the applicant has not adequately -~-~sessed the consequences

• of spent* fuel -rods reaching "criticality"_ or ~the spent fuel rods coming .in contact with one another." There. is. no .sup- .

• porting basis given for these assertions nor any mechanism even postulated by Petitioner for these occurrences. No reference is made to Licensee's .technical submittal in support of its application. These contentions should be denied. "

Contention 16 relates to an assertion that emergency.

planning is somehow deficient. * -No relationship between this "contention". and the proposed 'action, i*. e., increasing the number of fuel elements stored* is given. * . Time. for considera-tion of emergency planning for the facility was prior to the issuance of an operating licensee This "contention" should be denied.*

In Paragraph 17, Petitioners allege that "since citizens are unable to obtain .insurance* coverage for nuclear accidents and/or occurrences at the present time,_ this facility (proposed addition) as well as previously. licensed facilities continue to pose unfair threats to our-health.and safety." This is an attack.on the Price-Anderson insurance provisions of the

-Atomic Energy .Act. Such challenges have, in the past, been

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denied by licensing boards in other proceedings.-*

• This : *

"contention" is totally unrelated to the limited action re-quested and should be denied.

Contention 18 seemingly alleges that water from the spent fl.1el pool will be utilized as a backup source of water.

for the 'emergency core cooling system. No source*for this assertion; which is.entirely without factual basis, is given and it should be denied as a contention~

REQUEST FOR LEAVE TO FUR.THER ~ND THE PETITION With regard to the general request of the Petitioners 14/

to amend their Petition,- *the **commission's Rules require.

the submission of firm contentions at the outset. "Prehear-ing procedures have, inter alia; the objective of refining, clarifying, and narrowing the original contentions, but the petitioner must advance firm contentions*at the outset~ No reservation of a general right to amend the petition.at a later time is permitted. In Florida Power & Electric Company

. 1' (Turkey Point Units Nos. 3 and 4), 4 AEC 787, 788-~ 1 .the 13/' See, for example, Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2. and 3), *

"Memorandum and Order" dated January 27, 1978, at pp.*

15-16.

14/ Petition, Paragraph IX, at 3.;.

Commission, in ruling on a petition for leave to intervene, stated:

We also deny petitioner's general request to amend or supplement his petition in the event it is deficient. Our.rules call for dismissal of untimely intervention petitions except where. good cause is s.hown."

It is well established that leave *ta.* file new .con-tentions out of* time or to.amend a petition for in-tervention will be granted only where a petitioner shows that substantial good cause exists for.their belated assertion* and where such amendment will assist the Board in resolving issues before it without undue delay. Thus, as the Commission pointed out in Wisconsin Electric Power Company. (Koshkonong Nuclear Plant; Units *

.~ - 1 and 2), CLI-74-25, 8 AEC 928, 929 .(1974), an inter-venor is not precluded from adding to its original . .

contentions "should an unforeseen issue present *its.elf further on in the proceedings. 11 . However, *where the.

matters sought to be*raised by contentions filed.out of time could have been raised earlier *and "a substantial showing of good cause for their beiilg. filed out of ,,..;

time" has not. been made, a motion for the . addition of ..

new contentions should be denied.*

• Public Service Electric & Gas Co.

(Atlantic Generating Station, Units 1 and 2), "Rulings on Motions" (ASLB, May 25, 1976 (unpublished). Slip op. at 6 ~)

REQUEST TO STAY.CONSIDERATION The Petitioners ask "[t]he dec1sion on this.applicatiop .

be set aside until the final disposition.of pending Docket Number 50-3 concerning nuclear waste . (including spent fuel).

16/

be made."- Petitioners have failed to address the criteria.

for a stay contained in 10 C.F.R. §2~788 or make any showing 17/

whatsoever that a stay or any delay is warranted.~ They also failed to show any connection between the pending application to increase the fuel storage capacity and*.RM-50-3.

The question of the application of.RM-50-3.to the Salem facility has already been disposed-of. See ALAB-426, p. 7, supra.

While the word "enjoin" is used in the title of the pleading, there is no indication that Petitioners appre-  :

ciate the implications of the remedy they request.* .I I

The Petitioners have not made any showing that it is likely to prevail on the merits, or that the irreparable injury.would be should the Board consider the issuance of the requested amendment. The granting of a stay would, of course, harm the Licensee and its customers and increase the exposure of the plant workers should construction have to be delayed until after spent fuel was first loaded into the pool.*

CONCLUSION For the foregoing reasons, the;~. Pe ti ti on should be

• denied, and the request for leave to *further amend the petition and the motion to enjoin should also be denied.

Respectfully submitted, CONNER, MOORE & CORBER

!/J/df;W~

Mark J. Wetterhahn counsel for the Licensee, Public Service Electric

& Gas Company March 27,

• 1978

• OF COUNSEL:

Richard Fryling, Jr., Esq *.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

PUBLIC SERVICE ELECTRIC .* ) ..* Docket No. 50-272

.AND.GAS COMPANY )

)

(Salem Nuclear Generating ).

Station, Units 1 and 2)* )

NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney.herewith enters an appearance in the captioned matter. *In accordance with §2.713,

. 10 CFR Part 2, the following information is provided:.

Name Richard.Fryling, Jr.

Address Public Service Electric.

and Gas Company 80 Park Place Room 7113 Newark, New Jersey 07101 Telephone Number Area Code 201-430-6468

. Admission The Supreme Court of the State

.of New.Jersey

• United States Supreme Court Name of Party Public Service Electric and. Gas Company .

Richard Counsel for P Electric a Dated at Newark, New Jersey

____this 23rd day of March, 19.78. */ ... ,

UNITED STATES OF AMERICA NUCDEAR REGULATORY COMMISSION In the Matter of )'

', ') '

PUBLIC SERVICE ELECTRIC & GAS *) Docket No. 50-272 COMPANY, et al. .) '

)*

• (Salem Nuclear Generating )

Station~ Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of . "Licensee's .Answer to Petition for Leave to Intervene of.Eleanor G. Coleman and .

Alfred c. Coleman," dated March 27,*1978, and itNotice of Appear"'.""

ance" of Richard Fryling, Jr., dated March 23, 1978, in th~

captioned matter, have been served upon the following this 27th day of March, 1978:

.Gary L~ Milhollin, Esq. *.Chairman, Atomic Safety and

.Chairman, Atomic Safety Licensing B.oard and Licensing Board U.S~ Nuclear Regulatory 1815 Jefferson Street Commission .*

Madison, Wisconsin 53711 . Washington, D. C. . 20555 Mr. Glenn o. Bright Barry Smith, Esq.

Member, Atomic Safety and Office of the Executive .

Licensing Board Panel Legal* Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D.

• c. 20555 Dr. James c. Lamb, III / Mark L. First, 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* Environ6ental Protection Section Chairman, Atomic Safety* and 36 West State Street

• Licensing Appeal Board.

• Trenton, New Jersey

• 08625 U.S. Nuclear Regulatory Commission Richard Fryli~g, Jr., Esq.

Washington, D~ C. 20555 *

• Assistant General Solicitor .

• Public Service Electric *

.& Gas Company 80 Park Place Newark, New. Jersey 07101

.a. *

• v Eleanor G. Coleman Alfred C. Coleman 35 "K" Drive Pennsville, New Jersey 08070 Off ice of the Secretary Dockecting and Service Section U.S.* Nuclear Regulatory Conunission Washington, Do C. 20555