ML19206B059
| ML19206B059 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 09/20/1976 |
| From: | Fess G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7904210748 | |
| Download: ML19206B059 (18) | |
Text
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09/20/76 l
} 5 f, b Q W UNITED STATF.S OF AMERICA NUCLEAR REGULATORY COMMISSION B_EFORE Tile ATOMIC SAFETY AND LICE'5ING I'OARD In the Mat:cr of
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METROPOLITAN EDISON COMPANY,
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(Three Mile Island Nuclear Station,
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Unit 2)
NRC STAFF'S ANSWER TO PETITION FOR INTERVENTION FILED BY Tile ENVIRONMENTAL COALITION ON NUCLEAR POWER On August 16, 1976, the Envirormental Ccalition on Nuclear Power (" Peti-tieners") filed a petition for leave to intervene in this proceeding (" Petition").
Due to confusion in the docketing and service of this petition, it was nct served on the presiding Atomic Safety and Licensing Board (" Licensing Board") and parties until September 7,1976. The Pettucners seek to intervene in this proceeding on the ground that "there are defects in the cost-benefit analysis used by the Applicant to justify construction and operation of Three Mile 1/
Island Il and approved by the Commission".~ The Petitioners asscrt that due to recent decisions of the United States Court of Appeals for the District of 2/
Columbia Circuit, "the continued operation of Three Mile Island II is illegal because the construction permit for the facility was issued without proper
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Petition at p.2.
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Natural Resources Defense Council. NRC, F.2d (D.C.
Cir.,
July 21,1976; Aeschliman v. n'RC,
F.2d (D.C. Cir... July 21, 1976).
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h
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' consideration of the ' alternative' of energy conservatien, v.a.i its effect on the cost-bendit analysis, and without proper consideration of the yet unsolved, 3/
l The Peti-and possiblf unsolvchle problem of radioactive waste disposal".--
tieners contend that the construction permit should therefore be rescinded unc construction halted pending resolution of these matters.
The propriety of this petition and the issues raised theccin will be discussed b elow.
BACICGROUND The construction permit application of Three Mile Is and Nuclear Station Unit l
2 ("TM1-2") was fileo en April 29, 1968, and amended, due to a site change for the facility from Oyster Creek to Three Mile Island, on March 10, 1969.
t The safety evaluation was ccmpleted by the Atomic Energy Commission (AEC)
Regulatory Staff, now the Staff of the Nuclear Regulatory Commission (Staff),
on September 5,1969, and a public hearing before an A'omic Safety and Licensing Board was held on October 6 and 7,1969. Coastruction Permit CPPR-66 was subsequently granted on November 4,1969.
On September 9,1971, the AEC published in the Federal Register a revised Appendix D to 10 CFR Part 50 setting forth the AEC's implementation of the 3/
Although Petitioners assert that the continued " operation" Petition at p.2.
of Three Mile Isla' nil Nuclear Station Unit 2 is illegal, the Staff has inter-preted this to mean cont nued construction, since no operating licence has i
been issued for this facdity.
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National Envirc.nmental Polic'/ Act of 1969 (NEPA). t ' a %,1,.. E(3) of revised Appendix D requires a holder of a construction permit for a production or utili-zation facility issued prior to Januar 1,1970, but for which neither an operating license nor an opportunity for public hearing or the operating licence had been issued before October 31,1971, to 1.trnish to the AEC a written statement of why the construction permit should not be suspended pending completion of the NEPA environmental r eview. On October. 19, 1971, Metropolitan Edison Company and Jersey Central Power and Light Company ( the " Applicant")
ubmitted the information required by paragraph E(3) of Appendix D, relating to construction activities pursuant to CPPR-66 at TMI-2. On November 22, 1971, the AEC considered and balanced the environmental factors contained in paragraph E(2) of Appendix D and concluded that construction activities need not be suspended pending completion of the full NEPA review. (36 F.R.
f 23264T In December 1972, the AEC Regulatory Staff published a Final Environmental Statement (FES) reflecting completion of the NEPA review for both TMI Units 1 and 2. The Staff concluded that the action called for under NEPA and Appen-dix D to 10 CFR Part 50 was the continuation of the construction permits and the issuance of operating licenses for both units. However, since the Applicant had postponed the anticipated operational date for TMI-2, no application for an operating licence for unit 2 was filed until April 4,1974.
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On May 23,1974, a notice of hea; ing was published in the Fu.cral Register-which announced the Commission's intent to conduct a public hearing to a) determine whether the provisional construction permit should be continued, modified, terminated, or apprcpriately conditioned to protect environmental values, and/ot b) consider the issuance of a facility operating license. The notice of hearing provided June 27, 1974, as the deadline for the filing of petitions to intervene. A timely petition to intervene was filed jointly by Citizens for a Safe Environment and York Committee fcr a Safe Environment.
On July 24, 1974, the Licensing Board granted that petition, and, further, granted the State of Pennsylvania leave to participate as an interested state.~5/
On Novembi. 6,1975, the Licensing Board admitted eleven (11) contentions filed by Citizens for a Sr.fe Environment, c_t al,.
None of those contentions t
relate to the issues of conservation of energy, chemical reprocessing of spent fuel, or the disposal of radioactive wastes.
In July 1976, the Staff published a Draft Supplement to Final Environmental Statement for TMI-2 in order to update the Staff's previous evaluation. The Final Supolement is scheduled to be issued in November 1976, and the Staff's review and analysis of TMI-2 are still ope:, pending the receipt of comments.
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39 F.R.18497.
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Another petition to intervene was subsequently filed by Gertrude and Frederick llellrich, et al. That petition was granted by the Licensing Board's Order of November 6,1975. On August 20, 1976, Gertrude and Frederick !!clh ich, et al., withdrew from the proceeding.
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. l No evidentiary hearings have been scheduled nor has any other action been taken. Construction activities at TMI-2 have been continuing under the pro-visional construction permit, with about eighty (80) percent of the facility completed.
On Julf 21, 1976, the Natural Resources Defense Council v. NRC ("NRDC")
and Aeschliman v. NRC (" Aeschliman"), suura, cases were decided which involved challenges to the validity of the Commission's fuel cycle rule and the exclusion from nuclear power plant licensing hearings of the issues of s
waste management and spent fuel reprocessing impacts. The court held in NRDC that the Nuclear Regulatory Commission's rule codifying the environ-mental effects of the uranium fuel cycle for individual light-water nuclear r
power reactors / was inadequately supported by the record insofar as it 6
treated the chemical reprocessing of spent fuel and the disposal of radio-active wastes. The court found that the National Environmental Policy Act of 1969 requires analysis of these reprocessing and waste issues, either through rulemaking or in individual licensing proceedings, before the Commission authorizes construction or full power operation of a nuclear power plant. Further, the court stated that revision of the rule, should the Commission decide to handle the matter generically, must be accomp-lished by more demanding procedures than those required for informal
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10 CFR S 51.20(c).
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42 U.S.C. SS 4321, et seq.
__. rulemaking under the Administrative Procedure Act. /
8 In Aeschlitran, the court remancLct the case, stating that the Commissio: must " undertake approprir.te consideration of waste disposal and other unaddressed fuel cycle issues"9/ and consider energy conservation issues, and that the report of the Advisory Comuittee on Reactor Safeguards must be clarified.
The Commission issued a General Statement of Policy 10/ in response to the two decisions. It stated that, in the absence of a valid rule on the uranium fuel cycle, no full power operating licenses, construction permits or limited work s
authorizations should issue. The Commission announced its intention to reopen the rulemaking preceeding on the environmental effects of the fuel cycle to sup-plement the existing record and to determine whether or not the rule should be amended. The Commission directed the Staff to produce a revised and well-documented environmental survey dealing with radioactive waste management and reprocessing impacts. The revised survey is to be completed on or about September 30, 1976, and, if wart anted, is to serve as the basis for an interim rule on radioactive waste management and reprocessing impacts to be promul-gated as early as December of 1976. The Commission indicated that the interim rule could serve as a basis for issuing new licenses at that time.
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5 U.S.C. 5 5 501, ca seq..
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Aeschliman, suora, at 21.
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41 F.R. 34797 (1976).
(54T(h In its statement, the Commission addressed the issue c.f,
er to continue, o
modify, or suspend existing licenses, specifically the licenses at issue in the two court decisions, the Vermont Yankee 11/ and '.fidlandl?/
lic enses. Expressi::g its understanding that the resolution of that issue would turn upon the applicatien of equitable principles well established in case lar anci prior practice, the Com-Inst ead,
mission did not take any position on the factual merits in either case.
it assigned the matters to two separate licensing boards, which were established on August 17, 1976, for decision.
THE PETITION FOR LEAVE TO INTERVEME PENDING BEFORE THIS EOARD The instant petition for leave to intervene must be measured against the stan-dards for intervention set forth in 10 CFR b 2.714 of the Commission's Rules of Section 2.714(a) recuires intervention petitions to establish the peti-Practic e.
i tioner's interest and to identify the specific aspect or aspects of the subject matter of the proceeding as to which intervention is sought and to set forth with particularity the basis for the petitioner's contentions with regard 11/ A full power operating license was issued on February 28,1973 to the Vermont Yankee Nuclear Power Corporation after a decision in Vermont Yankee Nuckar Power Corporation (Vermont Yankee Nuclear Power Station), LBP-73-8, 6 AEC 130 (1973). See also, 4 AEC 776 (1972) and LBP-72-23, 5 AEC 92 (1972).
-12/ A construction permit was issued to the Consumers Power Company or December 15, 1972, after an Initial Decision in Censumers Power Com-pany (Midland Units 1 and 2), LBP-72-34, 5 AEC 214 (1972).
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LJ thereto. Section 2.711(a) also provides that an untimely nacrvention peti-tion "will not be entertained absent a determination by [the Licensing Board]
that the petitioner has made a substantial showing of good cause for failure to file on time..... "
1.
Interest The Petitioners assert that they are a "non profit, public interest or-ganization composed of individuals and groups of individuals who share.a concern about the purpose, magnitude, and direction of the civilian nuclear power program." The Petitioners allegedly have five members in the organization who live within twenty (20) miles cf TMI-2 anel who feel that the "operatica of this facility poses an undue threat to their lives and material possessions." (Petition, pp.1 and 2).
The Staff submits that the Petitioners have established their interest in this proceeding by virtue of their close proximity to the TMI-2 site.
2.
Substantial Good Cause The Petitioners have not directly addressed the question of whether there i
is any good cause justification for their late petition. Presumably, they have filed a petition at this late date because of the NRDC and Aeschliman decisions and the Commission's General Statement of Policy discussed above. By its policy statement, the Commission has recognized that prior authorizations, permits, or licenses have been issued based upon reliance E4'.?CS '
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that the Commission regulation (10 CI'R S 51.20(e)) o ' forth the environ-mental costs of the fuel cycle and that these environmental costs may be changed by the Staff's revised environmental survey dealing with radio-active waste management and reprocessing impacts. In light of these events, the Staff believes that sufficient justification exists for a peti-tioner to file a late petition for intervention that is related solely to matters which must now be considered in this particular proceeding as a consequence of the two decisions and the General Statement. We proceed to consider whether any of the various matters alleged by Petitioners has
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that necessary connection.
The Petitioners contend that the " cost-benefit analysis of the Appli-a.
cant and the Commission is faulty because the recipients of the
' costs' and ' benefits' have not been properly identified." (Petition,
S 2). This contention is outside the scope of matters raised by NRDC and Aeschliman. It has no relationship to an inadequately documented environmental survey of the uranium fuel cycle.
b.
Petitioners contend that the " stated costs of nuclear power by the Applicant and the Commission assume catastrophic accident-free operation of nuclear power plants." (Petition, f 3). The environ-mental costs of radiclogical accidents was not an issue raised by either the NRDC or Aeschliman decisions. Therefore, this conten-tion cannot support a showing of substantial good cause.
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- Petitioners contend that the " cast-benefit analys..s of the Applicant c.
and the Commission assumes a virtually infinite supply of relatively low cost ' yellow cake', or U 0." (Petition., ! 4). Further, Peti-38 tioners contend that " availability of fuel and energy and environ-mental costs of its extraction are an integral p:.rt of the nuclear fuel cycle and, therefore, must be included in a full and proper cost-benefit analysis of this reactor." (Id. ) The availability of are not dealt with in uranium resources and the price of U O3g Table S-3 of 10 CFR S 51.20(e) and, accordingly, should be denied.
These contentions raise economic cost issues, not environmental cost issues which were the subject of the NRDC ciecision. Insofar as this contention asserts that the environmental costs of mining and milling of low grade ores have not been adequately considered in the summary of environmental considerations for the uranium fuel cycle, this issue is also not properlf within the scope of the NRDC decision and the Commission's policy statement, which dealt exclusively with the issues of the environmental costs of reproces-sing of spent fuel and the handling of radioactive wastes. The NRDC decision did not question the adequacy of environmental considera-tions of uraniu:n mining and milling. In fact, the Court concluded that the " Environmental Survey did an adequate, even admirable, W.?cs job of describing the processes involved" in most phases of the fuel cycle. Therefore, this contention cannot support a sho'ving of substantial good cause for late intervention.
d.
The Petitioners contend that the " rate structure of the Applicant is a promotional rate structure designed to increase the consumpticn of electricity by offering declining rates for increased consumption."
(Petition, ! 5)
This contention can reasonably be read as asserting that the impact of energy conservation has not been adequately analy:cd due to the Applicant maintaining a promo-tional rate structure to increase, rather than decrease, energy consumption. Energy conservation alternatives to the preposed r
construction and operation of TMI-2 have not been previously considered and analyzed by the Staff in its FES or draft supple-ment to the FES. It may therefore be said that the issue of energy conservation has not been placed in perspective for both the immediate decision maker and the public in accordance with the requirements of NEPA and Aeschliman. Accordingly, the Staff submits that good cause exists for considering the effects, if any on energy conservation due to the Applicant maintaining a promotional
- ate structure, and that Petitioners may appropriately be admitted to the proceeding with respect to this issue.
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. The Petitioners contend that the "Commia.ua ~. been totally neg-c.
ligent in its handling of the problem of radioactive wastes in the granting of a construction permit for Threc ?.!;1e Island II.
As a result, it has been impossible to determine accurately the costs of electricity generated by nuclear plants because the costs of solidification of spent fuel reprocessing waste solutions and storage of solidified wastes were ignored or grossly underesti-mated. " (Petition, ! 6). This contention is addressed solely to the economic costs, not the environmental costs, of spent fuel reprocessing and waste storage. Such a contention is outside the scope of the NRDC decision and the Commission policy state-ment and should be denied because the Petitioners have not advanced any justification for raising it in this untimely manner.
f.
Petitioners contend that the " cost-benefit analysis of Three Mile Island II has been biased in favor of nuclear power by greatly under-estimating spent fuel reprocessing costs and by the Commission offering a credit for recovered plutonium. Since there has not yet been any successful, economical, and complete reprocessing of reactor wastes to the solid stage, costs must be largely unknown.
Since the recycling of plutonium is not presently a commercial reality, the offering of a plutonium credit for yet unrecovered plu-tonium which may not be rec'/cled is premature." (Petition, ! 7).
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_ __ i This contention again is addressed solely to eco.wmic costs, not environmental costs and its consideratien in this proceeding is in no way mandated by the N!!DC ciecizion or the General Policy Statement.
Petitioners finally contend that "due to the above unresolved issues g.
regarding compliance with Sec.102 of the National Environmental Policy Act by the Commission, the construction permit for Three Mile Island, Unit II should be rescinded im:neciately, and construc-tion halted pending resumption of public hearings and resolution of these matters." (Petition, S 8).
As indicated previously, supra at p.4, a notice of hearing has been i
issued, and a hearing board has been constituted to determine whether the construction permit should be continued, modified, terminated, or appropriately conditioned to protcet environmental values. Therefore, Petitioners' request is already included in the ultimate issue to be decided in this proceeding, to which the Staff has alread'/ urged that they be admitted with respect to the effect of Applicant's rate structure on energy conservation, supra at p. ll. Ilowever, Petitioners' S S can also be reasonably read as suggesting that the TMI-2 construction permit should be rescinded and construction activities suspended pending resolution of the C4-?Il
. reprocessing and waste disposal issueu rmed ni the NRDC decision.
The Commission's policy statement conte:.. plates that such suspcn-sion questions may be raised as to any nuclear power plant license until an interim rule has been made effective.
Since the question of suspension is directly related to the NRDC decision and neecis to be considered in this particular licensing proceeding, we believe that Petitioners' expressed desire to raise it does support a substantial gcod cause showing for late inter-vention of Petitioners. Thus, the Staff would not oppose Petitioners' admission to the proceeding for the additional purposes of making such a suspension motion and participating in any consideration which may be given in this proceeding to revising the NEPA cost-benef2t balance in the light of the Commission's revised environ-mental survey of reprocsssing and waste management.
The Commission has specifically directed that any suspension question will be resolved on a case-by-case basis with particular reference to the equitable factors set forth in the policy state-ment. Therefore, we believe that the Petitioners and all other parties to this proceeding should address and present evidence, if needed, on those factors in support of or opposition to the sus-pension of the construction permits. Although we realize that the ry ay e r.
Appeal Board has stated that the Applicant has. e burden of proof on a suspension motion and stands in jeopardy of having the motion summarily granted if it doesn't address the equitable factors, it is incumbent upon the proponent of a motion to state with particularity the grounds of the motion and the relief sought. 10 CFR S 2.730(b).
Accordingly, if the Licensing Board agrees with us that the Petitioners should be admitted to this proceeding for the limited purposes specified above, we suggest that Petitioners be accorded an opportunity to per-fect their suspension motion in the light of the Commission's policy
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statement. The other parties could then respond in the normal course, h.
Furthermore, the Petitioners request the Commission to grant them financial assistance. (Petition, ! 9). Since requests for financial 1
assistance are currently the subject of Commission rulemaking pro-ccedings, the Staff believes the Licensing Board should defer any decision concerning such request until a final Commission decision.
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CONCLUSION For the foregoing reasons, the Staff submits that Petitioners should be admitted to the proceeding and given further opportunity to perfect their motion for sus-pension cf the construction permits in accordance with the discussion above.
Respectfully submitted, w W..
C Waf >
Gregory Fess Counsel for NRC Staff Dated at Bethesda, Maryland this 20th day of September,1976.
t
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATO'.HC SAFETY AND LICENSING EOARD In the Matter of
)
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METROPOLITAN EDISON COMPANY,
)
)
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(Three Mile Island Nuclear Station,
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Unit 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANS?iER TO PETITION FOR W1ROSMENTAL COALITION ON ';UCLEAR PO'.ER" in the above-captiered in the United States FILED BY THE E.
proceeding have been served on the following by depositfirst cla in the Nuclear Regulatory Commission's internal mail system, this 20th day of
- mail, September, 1976.
Edward Luton, Esq., Chairman
- Sidney G. Kingsley, Esq.*
Atomic Safety and Licensing Board Atomic Safety and Licensing Board f
U.S. Nuclear Regulatory Commission U.S. Nuclcar Regulatory Commissica Washington, D.C.
20555 Washington, D.C.
20555 Mr. Gustave A. Linenberger*
Karin W. Carter, Assistant Atomic Safety and Licensing Board Attorney General U.S. Nuclear Regulatory Commission Office of Enforcement Ashington, D.C.
20555 Department of Environmental Resources Dr. Ernest O. Salo 709 Health and Welfare Building Professor, Fisheries Research Harrisburg, Pennsylvania 17120 Institute, WH-10 College of Fisheries George F. Trowbridge, Esq.
University of Washington Shaw, Pittman, Potts & Trowbridge Seattle, Washington 98195 1800 M Street, N. W.
Washington, D. C.
20036 Mr. Chauncey R. Kepford Citizens for a Safe Environment Lawrence Sager, Esq.
2586 Broad Street Sager & Sager Associates York, Pennsylvania 17404 45 High Street Pottstown, Pennsylvania 19464 64~? ' [5
. Mr. Chaunce'/ R. Kepford
/stomic Safety and Licensing Citizens for a Safe Environment Appeal Beard
- c/o Imeson Ranch U.S. Nuclear Regulatory Commission Box 1093 Washington, D.C.
20555 Jackson, Wyoming 83001 Docketing and Service Section Atomic Safety and Licensing Office of the Secretary Board Panel' U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D. C.
20555 Ms. Judith H. Joi2nsrud 433 Orlando Avenue State College, Pennsylvania 16S01
'nu :ay..;,
et.;.~h Gregory 2 Fey Counsel for NltC Staff G4 .G
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