ML19029A867

04/23/1979 Licensee'S Objections to Intervenors' Profferred Testimony

ML19029A867
Person / Time
Site:	Salem
Issue date:	04/23/1979
From:	Wetterhahn M Conner, Moore & Corber, Public Service Electric & Gas Co
To:	Office of Nuclear Reactor Regulation
References
Download: ML19029A867 (15)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATOR~/,C. OMMISSION

. \ i/J? °f)

In the Matter of )

).

Pub1ic Service Electric & Gas Company, et al.. i . .

J

)

)

Docket No. 50-272 ..

(Proposed. Issuailce of *

) Amendment to Facility

{Sal.em Nuclear Generating ) Operating License

• Station, Unit l.) ) No.. DPR-70 _)

LICENSEE'S. OBJECTIONS TO INTERVENORS' PROFFERRED TESTIMONY.

Introduction*

By letter* dated April ll., 1979, the Public Advocate of New Jersey,

• counsel. for Mr. and Mrs*. Alfred C. Coleman, sub-mitted its proposed testimony in the captioned. proceeding

- which consisted. of a_ letter:* and attachments, from* Robert M*.

Crockett, Vice President Fuel. Supply, Public Service- El.ectric.

• • • and *Gas: Company, (PSE&G): to the* u*.s. Departinent of Energy.

Inaddi..tion, the Public: Advocate's lett.er indicated that the Colemans would seek to "introduce all. rel.avant. PSE&G documents pertaining .to the operations of.Salem One-which have been filedwi.th the Nuclear Regu1atory Commission and placed in the Public . Document Room. 11

• Furthermore, the letter raised another

- ~ procedural. matter which is addressed below., - On April 10, 1979 , '

-Counsel.. for Lower All:oways Creek Township (_LACT) submitted the

testimony of George Luchak, Ph.D. with respect to contention. 1 .*

- :

• As discussed be1ow, Licensee Public Service El.ectric. &

Gas Company, et al. objects to the proposed testimony of the Colemans and LACT. *

• Testimony Offered by the Colemans The Atomic Safety and Licensing Board has.informed the parties that, inter.alia, that portion of the Licensee's*

Motion* for* Summary Judgment pertaining to the-:. Colemans '

Contention 9 which related to consideration of alternatives to

_the proposed expansion of the* capacity of the Salem Unit. 1 spent fuel pool has been granted. If. the Crockett letter is relevant to any issue in the proceeding it would have been to dismissed Contention 9. It cannot be disputed that an inter~

venor. is prohibited from introducing direct evidence on an issue

--'----"-~-------~Q_;'___wjl~qh he has :*no contention.. Northern States Power Company

(.Prairie Island Nuclear.Generating Plant, Units __ l. and 2L,_

ALAB-244',- 8 AEC 857, 869 1 n. 17 (1974) *. Therefore,- the Colemans

-*are prohibited from introducing the Crocket letter __into evidence. - -*

Moreover, the Crocket letter speaks to matters which are entirely.beyond the scope of_issues in this proceeding/ includ-ing the ultimate disposal of spent fuel elements and cost df ta.*

. _I Moreover-, it relates to facilities other than Salem Unit l.

The- letter has no probative value even with regard to alterna-tives in that it only represents the opinions. of PSE&G of what Department of Energy policies should be and does not represent DOE policy. or .the existence of an unreviewed al.ternative to the expansion of the Salem Unit l spent fuel pool capacity*.

l; The Licensing Board has also indicated that it has granted summary disposition with regard to the Colemans' Contention

.13, the only contention whose reach could extend beyond Unit *1.

The attachment to the Crockett letter addresses- seven questions. For convenience,_ the Licensee will address the con"'."

tent of each-of* the' responses with regard to .its objections.-

Question 1 speaks to fuel assemblies discharged by cal.endar year. for the Salem and- Hope Creek. Stations-.. Question 2 pro*

vides*a table showing spent fuel *cooled at least five years.

As- each o-f these responses relates to facilities other than Salem Unit 1, it is beyond_ the. scope of the -issues in the pro-ceeding. As to Unit l, the schedule for discharge

! q.: ... :..

into the fueL.pool is beyond the .scope of the contested issues, i *. e., _

.. the rate of discharge .into the fuel pool is unchanged by

tjle i

i

~

-- -- ---- - :proposed action and no party has challenged:~*tl'le- discharge. ra:te- -

stated in -the Application.

-- - ~ - Questions* 3- and 4 present PSE&G' s views as .to design and

• ~.

economic criteria and policy considerations-related to a re-trievable geologic repository for spent fuel. In addition, it speaks to the capacity of spent fue.l pools on Artificial Island, other than Salem Unit 1. As discussed previously, only the Salem Unit 1 spent .fuel pool is at issue and_ -the capacity_ of the spent fuei pool is not a contested matter~ Nothing in these two responses speaks to the Colemans' Contention 2 and 6 related to* deterioration of the neutron absorption material.or fuel -pool rack structure or even to LACT Contention-1.as to the existence of a* viable alternative to the proposed action.

- Similarly, responses to Questions 5, 6 and .7 relate to PSE&G~s views as to fee str.uctures, charges and design criteria

'ii and legal relationships* for* interim offsite storage and geo~

logical repository storage. These responses are beyond the scope of any issue in this proceeding .*.

The stlmma.ry comments contained in the cover letter have the same shortcomings as. do the detailed conmtents previously discussed. Therefore, Licensee objects to the introduction of the Crockett letter and attachments thereto into evidence.

Licensee al.so objects to the int~oduction of "all relevant P *.5'.E *. &G. Co.. documents pertaining to the ope.rations of Sal.em .

One which have. been filed with .the Nuclear.Regulatory Conunission and .. placed in the Public Document- Room. "

• Such. a general proffer fails to meet the Licensing Board** s *requirements with regard to the.specific identification of direct testimOny*

and completely frustrates other counsel's preparation for ~e*

hearing. It is entirely unfair and contrary to the letter and spirit of a.11 the Board orders iri.. this proceeding .. regarding discovery. apd.pretr{al preparation* to require counsel to sift through a large number of documents .in an attempt to anticipate what course the Public Advocate will decide to take. The only documents even qeneral~y identified as being reviewed by the Public Advocate are those "detailing problems with the boron

• concentrations of the priniary reactor cooling water." There is insufficient information given to determine the materiality and

-s-probative value. of these reports with regard to the matter at issue in this proceeding,_ the expansion of the capacity spent fuel pools.* The sys~em regulating the boron concentration of the prilDa.ry reactor cooling water is separate from-any aspect --

of .the spent fuel pool or-its auxilliary systems. No* relation-ship has been shown between any of the reports and the spent

.fuel pool. In fact, as the Colemans must concede, inasmuch as all criticality calculations for'the expanded spent fuel pool-racks were made assuming no boron poison in the fuel pool water whatsoever, i.e~, only demineralized water is- assumed to.

. -Y . .

be present, the: reports are irrelevant to the proceeding: and~*

should not be *admitted:. .

In ~his April .ll., 1973 *letter.*~ the Public* Advocate obj_ects

. to the proposed use- of a witness panel by the- Licensee- in this proceeding. Licensee *sUbmits that this objection has no merit.

Witness panels such as the one proposed by the.Licensee have been used in any *number of NRC proceedings* with sound justifi-cation. Due to the complexity and scope of the.issues in NRC

-- proceedings, no one can possess. the variety o.f skills and ex-perience to permit him to endorse and to explain the entire testimony. The Atomic Safety and Licensing Appeal 3 Board.. has* * * --

. ~

recognized the use of the* witness panel approach. The issues 1:1 Description and Safety. Ana*lysis, Spent Fuel Storage Rack Replacement, *Revision 1 _dated February 14, 1978 at 18.

]I Consumers.Power Company {Midland Plant, Units 1 and 2),

ALAB-379, 5 NRC 565, 569 {1977)~

e e

'-6 ....

involved in this proceeding are such that they require the op\nions of exper~ witnesses on technic5l subjects.and not the credibility of witnesses on essentially factual matters.

Moreover, essentially all testimony is in written form submitted

• in advance and all potential witnesses as well as all parties know in advance the basic position of the parties. The Ptiblic Advocate advances the argument that "the reliance upon group consultations contains an inherent risk for group responses for which no one person accepts personal responsibility." This ar53'utnent has nome:tit. Each of the panel members is under oath and~ -the individual responding to the, question has. "the respons-i:-~ :-

bility 11 for his-. response.;." In- the circumstances of this proceeding the proposed witness . pane-I. approach has overriding-_

benefits and should be permitted.

Testimony Offered by LACT LACT has profferred the testimony* of George Luchak,

-Ph.D. with regard to the consideration of alternatives to the proposed fuel pool expansion*. As discussed below, Licensee

. obj'ects to such testimony.. Initially, Dr. Luchak has not demonstrated expertise-with regard to the design of conunercial nuclear power plants, in general, or of the Salem Station, in particular, to be able to sponsor evidence related to such design or accident situations or to speak to the alternative of anindependen-t; spent fuel storage installation.

. To the extent the testimony deals with units other than Salem Unit 1, it goes beyond4 . .

• the issues in this proceeding

. . I and should be stricken *.- Thus, the last sentence in paragraph

-2 and the reference to Salem Unit 2 in paragraph 3 line 4,

- continuing to page 3 should. be stricken. As the first para-graph on page 5 speaks to the probability of accidents at facilities on Ar:ti£fcial Is*land

• other than Sal.em Unit 1, it should be stricken.

Without addressing the correctness of the statements regarding costs of an ISFSI, where. these costs* are admittedly higher tha-n the cost of proposed action, they have no relevance

-- =: ::*-tc:F-the- question of the environmental impact_ of-__alternatives* *.

• Moreover, where there- has been no- 'showing of. significant

• environmental. impacts relating to the proposed __action*, ..there-

. . . 5I is no requirement for the consideration of alternatives.- .

In addition, even taking the cal.culations and statements at face valu.e, there is no showing whatever that this alternative is viable, i.e., an ISFSI would be available to receive fuel from Salem-Unit l were the pool capacity no~_ expanded. There-

--fore~ no consideration need be given to this theoretical exer-cise. As a result, the testimony from page_ .2, paragraph l through line 2, page 4 and page 7, paragraph l through page 8

!/ Hereinafter, Licensee will refer to the testimony by.

page, paragraph and line within that paragraph.

Portland General Electric Co. (Trojan Nuclear Power Plant)., ALAB-531, 9 NRC slip op. at 2-3* (March 21, 1979).

• e paragraph l_should be stricken.

The testimony ippear~ng at page 4,paragraph 1 through page 5, line 4 and page 8, paragraph 2, lines 1-6, deal with policy questi.ons *related to the permanent disposal of spent.

fuel. - As already recognized by* this Board, these issues are

.* .. 21 beyond its jurisdiction and such testimony must be stricken.

The* testimony. at Page 5, paragraph l through line*. 5 page 7, addresses* the consequences of so:--called "Class 9" accidents. As* such, this Board is prohibited from considering this matter.* -;i:;t- -*- -ha,s

• *- - - -always

--*--*- - * *- -been

. . - * -*clear

-* * -*-* that

. *v Class .

9 accidents

• need not be considered by a Licensing Board. _ . The propqsed

• Annex: to-= 10 c .. F. R ... Part SO, Appendix D, treats Class 9 accidents.

as* follows:

. ****~- **------* *--.  ;.__ , ______ _

[Tl.he probability of their.occurrence is so small that their environmental risk is. extremely low * * * * [T]he required high degree of assurance that potential accidents in this class are,, and will remain, suffi-ciently remote in probability that the environmental risk is extremely low. For these reasons , it is not

• necessary to discuss such events_ in applicant's Environmental Reports.

[Emphasis added.JS/

!../ Id. at 9. See also Memorandum and Order dated April 26,"

" 1978 at 11-13. -

• • -*-----~-- .... *-

7/ This discussion is without prejudice to a broader ex-position in a brief directed towards the.propriety of certain of the Board's questions directed to.the Staff and Licensees. *

~/ This proposed.Annex was published in 36 Fed. Reg. 22851 (1971) for comment and provides "interim guidance until*

such time as the Commission takes*further action * * * * "

(Footnote ~/ continued on next page)

As a practical matter, ~vents estimated to be of low probability are excludfd from environmental and safety .review. See the

• Commission's Standa!r:d Review Plan, NUREG-75/087, Section 2 *. 2.3 (Evaluation of Potenti~l Accidents)

• Nu.merous. decisions have.* sustained the use of this standard as an identifiable*-line of demarcation beyond which the* likeli-hood of a radiological:occurrence is so remote that it can be

___s.af_e_ly__ dismissed from further consideration. In Consolidated

_ Edison Co. of New York* (Indian Point, Unit No. 2), CLI:-72-29, SAEC 20 (1972)~ where.the Commission.held that, absent demon-strated "special circumstances," there was no need to inquire __

_ *into~ ineas*ures for the integrity df :the pJ:essure vessels for the~

light-water reactors beyond compll~ncewith the Commission's*

• regulations. A number of appeal. boards in subsequent decisions .

V continued Effective August 18, 1974,* the procedures implementing*

NEPA previously set forth in Appendix D were transferred to Part 51.. In the Statement of Considerations published in the July 18, 1974 issue of the Federal Register (39 Fed. Reg. 26279), *the Commissio;n expressly stated:

Part 51. does not affect the. status -of the proposed Annex to Appendix. D to Part 50 regarding the discussion of accidents in environmental reports published by the Cormnission for comment on December 1, 1971.

The proposed Annex is still under con-

. ------1...siderat'ion by the Commission.. -* .

Accordingly, the proposed Annex.continues to. be the opera-

. tive statement of commission policy regarding Class 9 acci-

• dents"!

.. have relied upon Indian Point to reject a requirement that

~lass 9 accidents be considered. In Metropolitan Edison Co. -

(Three Mile Island Nuclear Station, Unit No *. 2), ALAB-486~

8 NRC 9 {1978), the Appeal Board determined that the crash of.

an airline heavier than.200,000 pounds travelling at 200.knots was. calculated to "have such a low probability that it does not present a hazard to the public, and therefore the plant 9 _/

need not be designed to withstand its effects." The Appeal Board. observed that "if the probability of a plane crash *.

can be shown.to be less than 1. x la-7. (i.e., less than one chance in 10 million) :per year, such events are deemed by the

• St~;_f_:__to be of sufficiently low likelihood that their effects*

may be. ignored,. even though

• the. consequence!?. o~¥-~~-:~:._~;-ash

• may_ex9~-~.d those specified in 10 C.F. R. Part 100.~ "~ - See also Public Service Electric & Gas Co. (Hope Cre~k*__~en~~~~~I?-<;L. - .. -*-*-* -* *- *- ***-**--

Station, Units 1 and 2), ALAB-429, 6 NRC 229 (1977) *

.. Moreover, the Conmtj.ssion has a*lways taken the position

• in court that Class 9 accidents need not be considered *. In

~ 8 NRC. at 25 *.

10/ .. Id. at 26. {emphasis supplied). The Appeal Board relied* **

upon an earlier decision:Ln Long Island LightingCo.

(Shoreham: Nuclear Power Station), ALAB-156, 6 AEC 831, 845-846 (1973), which had held that the "rule of reason

under.the National Environmental Policy Act does not re-

• quire consolidation of a Class 9 accident absent some showing of "a reasonable probc;ibili ty of [its] .occurrence. 11 6 AEC at 836.

. -11..-.

Carolina Environmental Study Group v. United States, 510 F~2d 796 (D.C. Cir. 1975), the court specifically considered the Commission's positi~n that the record in a licensing proceeding was adequate* without including the possibility of __ a. Class* 9 accident in the Final Environmental Statement. The Court of Appeals*sustained the Commission's non-consideration of Class 9 accidents:

Because each statement on the environmental impact of a proposed action involves educated predictions rather* than certainties, it is entirely proper, and necessary, to consider the probability as well as the con-sequences of certain-occurrences in as-certaining~their environmental impact.

There is a point at which*the probability of an occurrence may be so low as to ren-der i t almost totally unworthy of considera--

tion *- *. * ** . Recognition of the minimal probability of such an event is not-equatable *with non-recognition of .its con-',

• sequences J.l/

Other courts have also recognized that an agency may exclude highly speculative or remote probabilities from an environ-mental impact statement. Trout Unlimited v-. Morton, 509 F.2d 12/

1276, 1283 (9th Cir. 1974); MEPA's "rule of reason" was ll/ 510 F.2d at 799.

12/ Environmental Defense Fund, Inc. v. Hoffman,___S6_6 -~-49 ________________ _

1060, 1067-68 (8th Cir. 1977); Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir .. 19_7_7)_;_ ________ _

Scientists' Institute for Public Information v. AEC, _4_8l _

F.2d 1079, .1092 (D.C. Cir. 1973); International Harvester

• • co.- v. RU:ckelshaus, 478 F.2d 615, 650 n. 130 (D.C. Cir.

1973).; Natural Resources .Defense Council, Inc~ *-v:-Morton, 458 F.2d 827, 837 (D.C. Cir. 1972); Concerned About Trident v. Rumsfeld,_~400 F.Supp.* 454 (D.D.C._ 1.975),. a:E:f'd, 555 F.2d 17 (D.C. Cir. 1977);.Enyjranmental Defense Fund, Inc. v~ Corps of Engineers, 348 F.Supp. 916, 933 (N.D._

Miss. 1972}, aff'd, 492 F.2d 1123 (5th Cir. 1974).

-*12-specificially sustained by the Supreme Court in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,

435 U.S. 519, 551 . (1..978) *

. *Accordingly, the Commission has consistently. maintained that Class 9 accidents have such a low probability of occurrence

• -- 13

£/

that they need not be considered by a licensing board. The transcript of the meeting held.by the Commission on January 31, 1979, considering the. Appeal Board's Offshore Power decision indicates that. the Commission wotild not even go as far as the Appeal Board did .in distinguishing the risks of off shore re-actors from land-based plants, but would simply note that. the

. Staff ,had raised. certain. environmental considerations* in its":::

.* -FES that. could not be excised. or disregarded.* As Chairman Hendrie summarized, "the thrus.t of the Commission's- decision, then, is that indeed these considerations the staff has raised

• - . *-*-*- __ . ~-1~ _:-- --.* -~A~--.7"'decislan*-*;:.e--th.e-- Appeal Board* in offshore Power svstems

• (Floating Nuclear. Power Plant) , ALAB-489, 8 NRC 194 (1978), did not reach a contrary result. The Appeal Board squarely rejected the Staff's contention that it

• . :.could override the Commission' s policy of not considering Class 9 accidents *as outlined in the proposed Annex to Appendix D to .10 C.F.R. Part*5o and the decisions of the Commission and its*boards thereafter. The Appeal Board .~* I

• based its decision solely on the Staff's proposition that, "whil.e the likelihood of a core-melt accident may not be more.probable or* its consequences more severe at a floating nuclear plant, it presents risks o~ a ~iffer~?t_ ...

kind than those associated with plants ashore. *we do.not take.it to be disputed that such an event afloat could.

spread dangerous radioactivity wider than a similar

'incident ashore through what the staff terms 'the liquid pathway.'" 8 NRC at 218 (emphasis. added).

in this case are appropriately considered~ And I don't go further than that * * .. . II (Tr. at 51)

• Conclusion As discussed above, the profferred testimony of the-

• Colenians and LACT should be.rejected and the objection of the Colemans.to the use of the Licensee's witness panel should be denied.

Respectfully.submitted, CONNER, MOORE & CORBER

~ .-.1J"'WJ~*~

Mark J. Wetterhahn Counsel for Licensees

• April.23, 1979.

UNITED. STATES OF AMERICA.

NUCLEAR REGUI.iATORY COMMISSION Before the""Atoinic Safety and Licensing Board In the Matt.er of )

)

PUBLIC SERVICE ELECTRIC AND GAS ) Docket No. 50-272.

. COMPANY, et a.l. ) (Proposed. Issuance of

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

CERTIF*ICATE OF SERVICE I here.by certify that copies of ~Licensee's Objections to Inte.rvenors' Profferred Testimony," dated April 23, 1979, in. the captioned matter*, have been. served upon the following

• by* deposit. in. the. United States mail this 23rd. day of April, '

1979:

Gaq-L. Mil.hollin*, Esq. .Chail:'Ina.Il-,- Atomic... Saf.ety* and ..

Chairman,. Atomi~ Safety Licensing:. Board. Panel

_.and:* Licensing. Board U.S. Nucl.ear Regulatory.

1815' Jef.ferson Street Commission Madison, Wisconsin 537ll Washington, D.C *. 20555 .

Mr. Lester Kornblith, Jr. Barry Smith, Esq.

Member, Atomic Safety and Office of the Executive Licensing* Board Panel. Legal. Director o.. s. Nuclear Regulatory U.S*. Nuclear* Requl.atory Commission

• Commission Washington, D.,C. 20555 Washington, D.C. 20555 Dr. James C. Lamb, III Ri.chard Hl uchan, Esq.

Member, Atomic Safety and Deputy Attorney General.

Licensing Board Panel. Department of Law and 31.3 Woodhaven Road Public Safety

" Chapel. Hill, N.C. 27514 Environmental. Protection s*ection Chairman, Atomic Safety and 36 West State Street Licensing Appeal Board Panel Trenton, N.* J. 08625 U.S. Nuclear Regul.atory Commission Washington; D.C. 20555

Richard Fryling, Jr., Esq.

Assistant General Solicitor Public Service Electric Carl Valore, Jr. , Esq.

Valore, McAllister, Aron

& Westmoreland

& Gas Company Mainland Prof~ssional Plaza 80 Park Place P. O* Box 175 :

Newark, N. J. 07101 Northfield, N; J. 08225 Keith Onsdorff; ~sq. Office 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 Office Box 14i Trenton, N., J *. 08601 JUI).e 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 Street Trenton, N. J *. 08625 Mr*. Alfred c. Coleman, Jr.

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

~hl~~/2/

.Mark~*

,.