ML19206A137
| ML19206A137 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/21/1978 |
| From: | Mcgurren H, Treby S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7904180317 | |
| Download: ML19206A137 (12) | |
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02/_21/78 UNITED STATES OF AMERICA NRC Central File NUCLEAR REGULATORY COMMISSICN BEFORE THE COMMISSIOff In the Matter of
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METROPCLITAN EDISON COMPANY,
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Docket No. 50-320
_ET _AL.
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(Three Mile Island Nuclear Station,)
Unit 2)
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flRC STAFF AtlSWER OPPOSING JOINT INTERVENORS' MOTION FOR STAY Pursuant to i 2.788 of 10 CFR Part 2, the Joint Intervenors, Citizens for a Safe Environment and the York Comittee for a Safe Environment, have petitioned the Ccmmission to stay the Atomic Safety ano Licensing Board's (" Licensing Board") Initial Decision in this proceeding (LSP-77-70, 6 NRC
'(December 19,1977)). Joint Intervenors' earlier request for a stay directed to the Atcmic Safety and Licensing Appeal Board (" Appeal Board") was denied by that Board (ALAB-456, January 27, 1978, slio oo.) The Staff believes that the showing contained in Jcint Intervenors' filing falls far short of what is required to warrant grant-ing the requested stay and the resulting foreclosure of reactor operation pending the outccme of the appeal of the initial decision, that the Apceal Board's decision (ALAB-456) denying the stay was correct with respect to all questions of law and policy and that for these reasons, more fully discussed infra, the Ccrc:nission should deny the application for a stay.
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Summary of the Cecision Soucht to be Stayed The proceeding below involved an operating license / environmental review before a Licensing Board wnich resulted in an initial decision authorizing 790418o 3/7 49~154
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. the Director of Nuclear Reactor Regulation to continue in effect the construction permit of Metropolitan Edison Company, Jersey Central Power
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and Light Company, and Pennsylvania Electric Company (" Applicants") for Unit No. 2 of. the Three Mile Island Nuclear Station ("TMI-2"), and to make any findings on uncontested issues necessary to the issuance of a full-term operating license for TMI-2, consistent with the terms of the initial decision.
In its initial decision, the Licensing Board decided the varicus contested issues in favor of granting an operating license.
On December 29, 1977, the Joint Intervenors instituted an apoeal by filing numerous exceptions to the initial decision.
In conjunction with their exceptions, the Joint Intervenors moved before the Appeal Board for a stay of the effectiveness of the initial decision. The motion was said to be based upon the content of the exceptions. By unpublished order of January 3,1978, the Appeal Board called attention to the fact that the motion was deficient in that it failed to address adecuately the four well-settled criteria governing the grant or denial of stay relief which c re set forth in 10 CFR 2.788(e).1/ Noting that the Joint Intervenors are represented by a lay person, the Appeal Board decided to provide them with an opportunity to cure the deficiency in a supple-mental memorandum.
1/ s stated in Secticn 2.788(e), those criteria are:
(1) whether A
the moving party has made a strong showing that it is likely to prevail en the merits; (2) whether the party will be irreparably injured unless a stay is granted; (3) whether the granting of a stay would harm other parties; and (4) where the public interest lies.
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, The Joint Intervenors availed themselves of that opportunity and filed a supplemental memorandum. U Their request for stay relief related exclusively to one aspect of the consideration of the environmental effects associated with the uranium fuel cycle, the amount of radon (Rn-222) that is gener ted by the uranium mill tailings produced in the course of the mining and milling process.
The claim was that that amount is far greater than was assumed for the purposes of the environ-mental review of this facility. The Appeal Board found that it was extremely remote that the Joint Intervenors would ultimately prevail on this single issue raised in their Supplemental Memorandum because assertion of this claim in this proceeding is barred as a matter of law for the reason tha't it constitutes an impermissible attack upon a generic regulation of the Commission (ALAB-456, slio oo. at 3).
The Appeal Board further found that Joint Intervenors had not demonstrated that the other factors to be considered weighed in their favor (Id. at 10).
II.
Statement of the Grounds for Stay, With Reference to the Factors Soecified in 10 CFR 12.788(e)
On February 8,1978, Joint Intervenors filed "Intervenors' Appeal to the Commission of a Stay of the Initial Decision" (" Appeal") which they allege (1) addresses the four criteria of 10 CFR 5 2.788(e) and (2) represents a condensed version of their January 30, 1978 brief in support of exceptions to the initial decision (Appeal,at 1). As discussed below, the Joint Intervenors have failed to demcnstrate that the factors to be considered weigh in favor of granting a stay.
U "Intervenors' Sucolemental Memorandum in Support of Motion for
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Stay of Initial Decision", (" Supplemental Memorandum") dated January 13, 1978.
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Factor 1 Whether the moving party has made a strong showing that it is likely to prevail on the merits; As discussed suora, the sole thrust of the Joint Intervenors' argument pressed on the Appeal Board on this factor was that the initial decision relies on Table S-3 and that Table S-3 does not consider the Rn-222 that eminates from uranium mill tailing piles after the active life of the mill for an indefinite time into the future (Supplemental Memorandum at 2). This same argument is renewed in the instant application for stay (Appeal at 1-4).
In dismissing the Joint Intervenors' arguments, the Appeal Board determined that it was not necessary to reach the merits of Joint Intervenors' claim concerning the amount of Rn-222 that is generated by the uranium mill tailings produced in the course of the mining and milling process.
This was because the Appeal Board concluded that assertion of Joint Intervenors' claim in this proceeding "... is barred as a matter of law for the reason that it constitutes an impermissible attack upon a generic regulation of the Commission." El The Staff believes that the Appeal Board's conclusion is consistent with Commission precedent and policy. As noted by the Appeal Board, when the Comission promulgated in March 1977 a new interim rule, the Comission expressly directed that "any oceratina license, construction permit, or limited work authorization (LWA) that may hereafter be issued must 1/ ALAB-456, slic ca. at 3.
The Acpeal Board noted in footnote 3 of that decision that it had several years ago rejected a similar attack upcn the original Table S-3.
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. take into account the revised values contained in this rule" 42 Fed.
Reg.13803 at 13806 (emphasis supplied) (ALAB-456, slio oo. at 5).
Further,10 CFR 51.20(e) of the Commission's Regulations mandates that, in the applicant's environmental report, "the contribution of the environ-mental effects of uranium mining and milling... be as set forth in Table S-3" and goes on to state that "[n]o further discussion of such environmental effects shall be required." The Joint Intervenors have made no showing in their papers that the Appeal Board has incorrectly stated the prevailing regulations or policy.
While the Staff fully concurs with the appeal Board determination that it is not nr.2ssary to reach the marits of Joint Intervenors' claim, the Staff believes that even if the merits of the claim were considered, the possibility of Joint Intervenors ultimately prevailing
, this issue in the pending appeal is very remote. The Licensing Board's Initial Decision clearly reflects that the Joint Intervenors' argument was considered (Initial Decision, paragraph 125). As the decision notes, Joint Inter-venors' witness Dr. Kepford, testified under cross-examination.that even with the significantly larger reieases of Rn-222 that he postulates, one is still dealing with releases that are small compared with the natural background (Tr.2866).
Further, the decision notes that the corresponding TMI-2 related health effects would amount to an increased mortality rate of one additional death per billion deaths frcm other causes over the time span of several billion years required (by Dr.
Kepford's reckoning) to account for the decay of the parents of Rn-222 (Initial Decision, paragraph 125).
Based on this analysis, the Licensing 49 158
. Board found the relative impact of the Rn-222 consideration to be of negligible materiality (Jd.).
The record fully supports the Licensing Board's determination (Tr.2864-2866 and Tr.2867-2375). 4/
In addition to the above issue, the Joint Intervenors raise several matters that were not asserted before the Appeal Board in their Supple-mental Memorandum. 5_/ In the Staff's view, unless Joint Intervenors ccme forward with an adeouate explanation for failure to raise these matters before the Appeal Baard in their application fcr a stay before that body, these matters cannot now be asserted before the Commission as a possible U It should be noted that the Staff advised the Licensing Board that the testimony of the Staff's witness, Dr. Gotchy, comparing the health effects of the nuclear and coal fuel cycles might be affected by an error in Table S-3 and committed itself to a later assessment of the matter (Initial Decision, paragraph 124).
The Staff has completed its assessment and provided it to the Appeal Board as part of its response to the Joint Intervenors' motion below.
(Appendix to "NRC Staff Response to Motion for S'ay of the Initial Decision" dated January 1, 1978).
The Staff's recent assessment cconarates that the value for Rn-222 in Table S-3 did not include releases from mining or from mill tailings after the active life of the mill but that, nonetheless, the wide gap between the projected health effects of the uranium and coal fuel cycles is not significantly narrowed by the addition of the increment from the aspects of uranium milling not previously considered. Since the Licensing Board assumed the correctness of Dr. Kepford's analysis, the impact of additional releases of Rn-222 from mining or from mill tailings after the active life of the mill was factored into the Licensing Board's decision (Initial Decision, paragraphs 125 and 129k).
Thus, the Licensing Board's conclusion that "... the nuclear fuel cycle is environmentally an acceptable alternative to coal..."
(Initial Decision, paragraph 127) is not affected by the revisiens to the Staff's assessment.
The Staff notes that, in part, as a result of its recent assess-
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ment, it has reccmmended to the Ccmmission that Table S-3 be revised regarding the value for Rn-222.
E These matters are included in Joint Intervenors' brief in suoport of their exceptions dated January 30, 1978 and include financial assistance to intervenors, aircraft impact of TitI-2 structures, emergency plans and Commission authority beyond the low population zone and the Price-Anderson Act.
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. basis for granting a stay. s! Section 2.788(b) of 10 CFR Part 2 provides, in part:
"An application for a stay... shall contain the following:
(3) In the case of an application to the Commission for stay of decisions or motions by an Atomic Safety and Licensing Appeal Board, a statement where (includ-ing record citation, if available) a stay was requested frcm the Appeal Board and denied.
If no such recuest was made of the Acceal Board, the acclication snould state wny it could not have been mace;...
(Empnasis supplied)
Joint Intervenors raised only the issue of the quantity of radon appro-priate for consideration in this proceeding. They have not stated any reason for their failure to raise these other matters before the Appeal Board despite the regulations specific requirement to do so.
It is a long established judicial principle that a party cannot raise a matter to a superior tribunal not raised below unless good cause can be established for doing so. Accordingly, the Staff believes that these additional matters 5/ The Statement of Considerations (42 Fed. Reg. 22128, May 2, 1977) which discusses comments on both Sections 2.788 and 2.786 appears to mandate this interpretation.
It states:
(2) With respect to procosed i 2.786(b)(2)(ii), it was pointed out that the final phrase "if they were not, why not" appeared to te in conflict with the language of 5 2.786(b)(4)(iii) that petiticns would not be granted to the extent they relied upon matters that could have been but were not raised before the Appeal Board. Asking for the petitioner to explain why matters were not raised appears to some commentors to conflict with the latter provision.
The coint of confusion is recognized, and 5 2.786(b)(2)(iin nas been amenced so tnat it is clear that the exclanatory statement recu1 rec in tne cetiticn snould accress wnv matters could not nave teen raised before tne Acceal Board, tnen tne constraint in i 2.786(o)(a)(iii) does not acolv.
A similar enance nas teen made to i 2.728 (b (3).
(Empnasis suppliec).
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not raised before the Appeal Board should not be considered in the Ccm-mission's deliberations of whether or not to grant the application for the stay.
Factor 2 Whether the party will be irreparably injured unless a stay is granted The Joint Intervenors cite two instances of irreparable harm in support of their motion:
(1) the health effects attributable to the uranium mining, milling and separating activities conducted for the fuel that is planned to be loaded at TMI-2 and (2) the contamination an1 decommission-ing costs resulting from the first fission reaction.
(Apptal at 8).
With regard to a motion for stay, the consideration of ir reparable injury to a party involves whether there will be irreversible hirm during the time period that the appeal of the Initial Decision is eing resolved, and not any alleged harm due to activities that precede or follow reso-lution of the appeal. 1# The irreparable harm alleged by Joint Inter-venors concerns the future health e'fects resulting from the mining, milling and separating activities related to the fuel loaded at TMI-2. 8/
This fuel already exists.
Granting a stay of the initial decision pending appeal will have no effect on the amount of releases of Rn-222 which will result from activities related to this fuel.
Further, the 1/ ublic Service Co. of New Hamcshire (Seabrook Station, Units 1 12)
P ALAB-338, 4 NRC 10, 15 (1976); Nortnern Indiana Public Service Cocoany (Saill;. Generating Station), ALAS-192, 7 AEC 420, 421 (1974).
8/ Operating License DPR-73 was issued February 8,1978 and fuel was loaded February 8,1978.
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alleged irreparable harm is not to the Joint Intervenors but to the general public at some distant time.
Joint Intervenors' second allegation of irreparable harm relates to their claim that the commencement of operation of TMI-2 will result in radio-active contamination of the facility and to the ultimate need for decem-missioning and decontamination. The Staff does not believe that Joint Intervenors have stated a irreversible harm. While it is true that comencement of operation of the facility would result in some radio-active contamination, that contamination would present no particular injury to Joint Intervenors.
Moreover, there are known method of dec m-missioning, decontamination and removal of waste materials.
Factor 3 Whether the granting of a stay would harm other parties The granting of a stay would harm the Applicants and their customers in that they would incur the added operating costs of having to generate from other sources the electricity that would be generated by TMI-2. El This additional cost was estimated in the Staff's Final Supplement to the Final Environmental Statement to be approximately $7 to 8 million a month. El Joint Intervenors assert that any costs the Applicants may attribute to
' delay in operation caused by the granting of a stay should be discounted 1/ Staff Counsel has been advised that the Applicant loaded fuel on February 8,1978 and anticipates going critical between Maren 5 and 10, 1978.
5 Staff Exhibit 1, Section 8.3.3.
This estimate is based on the Applicants' estimated overall system operation cost savings of
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over $55 million assuming TMI-2 on line operation in May 1978.
49 1.G2 since tch delay was caused by the Applicants voluntarily. 11/ The reascas for the delays set forth in the NRC " Construction Status Report",
NUREG-0030-77/7, the document cited by Joint Intervenors, does not support this assertion.
Whatever the reasons for the past delay, once the plant has been completed, substantial economic penalties to the Applicants and their customers would result from a delay in plant operations.
Joint Intervenors have not addressed these economic penalties.
For these reasons, this factor weighs against granting the stay.
Factor 4 Where the public interest lies The Joint Intervenors do not assert any public interest warranting the requestel.:ay.
heir Supplemental Memorandum does not support their claim that irreparable damage would occur to Joint Intervenors in the absence of a stay of the Initial Decision.
On the other hand, the granting of a stay preventing fuel loading and operation of the completed facility would have the effect of causing the Applicants' customers to incur more costly production of power. Accordingly. the public, interest lies in denying the Appeal.
Respectfully submitted, s/
e
,W f f
,/b!,WW
" Stuart A. Treby Assistant Chief Hearing Counsel f r MR
+3ff
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'He,n kMcGurren Counsel for NRC Staff Dated at Bethesda, Maryland this 21st day of February, 1978 E Appeal, at 9.
49'163
UNITED STATES CF AMERICA NUCLEAR REGULATCRY CCr* MISSION BEFORE THE CCMMISSION In the Matter of
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METROPOLITAN EDISON CCMPANY,
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Decket No. 50-320
_e t _a._l..
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(Three Mile Island Nuclear Station,
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Unit 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of ""RC STAFF ANSWER OPPOSING JOINT INTER-VENORS' MOTICN FOR STAY" in the above-captioned prcceeding have been served on the folicwing by deposit in the United States mail, first class or air mail, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Ccmmission's internal mail system, this 21st day of February, 1978:
Alan S. Rosenthal, Esq., Chairman
- Mr. Gustave A. Linenberger*
Atomic Safety and Licensing Appeal Atomic Safety and Licensing Scard Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Cc= mission Washington, DC 20555 Washington, DC 20555 George F. Trowbridge, Esq.
Dr. W. Reed Johnson, Member
- Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing Appeal 1800 M Street, N.W.
Panel Washington, DC 20555 U.S. Nuclear Regulatory Comnission Washington, DC 20555 Dr. Ernest 0. Salo Professor, Fisheries Research Jerome E. Sharfman, Esq., Member InstitJte, WH-10 Atomic Safety and Licensing Appeal College of Fisheries Panel University of Washington U.S. Nuclear Regulatory Ccmmission Seattle, Washington 98195 Washington, DC 20555 Dr. Chauncey R. Kepford Edward Luton, Esq., Chairman
- Citizens for a Safe Environment Atomic Safety and Licensing Baord 433 Orlando Avenue U.S. Nuclear Regulatory Commission State College, Pennsylvania 16801 Washington, DC 20555 Jerome Nelsen, General Counsel
- Samuel J. Chilk (12)*
Office of the General Counsel Secretary of the Commission U.S. Nuclear Regulatory Ccmmission Office of '.he Secretary Washingten, CC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555
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. Karin W. Carter, Assistant Atomic Safety and Licensing Aapeal Attorney General Panel (5)*
Office of Enforcement U.S. Nuclear Regulatory Ccmmission Department of Environmental Washington, CC 20555 Resources 09 Health and Welfare Building Docketing and Service Section (3)
.1arrisburg, Pennsylvania 17120 Office of the Secretary U.S. f;uclear Regulatory Commission Ms. Judith H. Johnsrud Washington, CC 20555 433 Orlando Avenue State College, Pennsylvania 16201 Atomic Safety and Licensing Board Panel
- U.S. Nuclear Regulatory Commissic Washington, CC 20555 l')
l Hen'ry J/WcGVrren W
Counsel.or NRC Staff 7
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