ML19209A879
| ML19209A879 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 08/14/1979 |
| From: | Bielawski A, Mark Miller, Murphy P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | DEKALB AREA ALLIANCE FOR RESPONSIBLE ENERGY, SINNISSIPPI ALLIANCE FOR THE ENVIRONMENT (SAFE) |
| References | |
| NUDOCS 7910050513 | |
| Download: ML19209A879 (15) | |
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.c NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos.
Commonwealth Edison Company ) 50-454 (Byron Station, Units 1 and 2) , 50-455 ANSWER OF COMMONWEALTH EDISON COMPANY TO THE STATEMENT OF CONTENTIONS OF DAARE AND SAFE Commonwealth Edison Company (" Edison" or "Appli-cant"), pursuant to 10 CFR S.'. 714(c), answers the Statement of Cont 3ntions submitted by the DeKalb Area Alliance for Responsible Energy ("DAARE") and the Sinnissippi Alliance for the Environment (" SAFE") (jointly referred to as " peti-tioners") on Edison's application for an operating license for Byron Station, Units 1 and 2 as follows. In general, some of the Contentions raise issues which are not proper subjects for adjudication in an operating license proceed-ing.
Others may attempt to address proper subject matters but fail to define the contested issues with adequate speci-ficity.
ARGUMENT
^ petitioner for leave to intervene must file contentions which the petitioner seeks to have litigated in the matter, and the basis for each contention must be set forth with reasonable specificity. 10 CFR S2. 714 (b) .
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The Commission has stated, " definition of the matters in controversy is widely recognized as the keystone to the efficient progress of a contested proceeding." 37 Fed Reg. 15128. In setting issues of interest or concern to it, the petitioner "must be specific as to the focus of the desired hearing.... (alnd contentions... serve the purpose of defining the concrete issues which are appropriate for adjudication in the proceeding." Gulf States Utility Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 769 (1977) (supporting citations omitted). The pri-mary purpose for requiring that the issues be set forth with adequate specificity and particularity is to provide the Applicant and the Staff with a fair opportunity to know precisely what the issues are, exactly what proof, evidence or testimony is required to meet the issue and exactly what support Petitioners intend to adduce for its allegations. River Bend, supra at 771.
As we will indicate in detail below, Applicant believes that some of the areas of concern to which Peti-tioners allude in their contentions are legitimate subjects for adjudication in these proceedings. Nonetheless, these contentions are deficient in terms of specificy and clarity, mu%ing it difficult, if not impossible, for the other par-ties and the Board to comprehend the specific issues which Petitioners seek to litigate.
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Other contentions submitted by Petitioners attempt to raise issues which are clearly inappropriate subjects for adjudication in these proceedings. A discussion of Appli-cant's position regarding each of Petitioners' contentions follows.
Contention 1 This contention appears to question Applicant's ability to operate Byron Station in light of the events identified in subparts (a)-(e) . In general, Applicant believes that this issue is appropriate for adjudication in these proceedings. However, on its face, the contention is susceptible of various other interpretations due to the citation to 10 CFR 550. 57 (a) (1-6) which recites all of the findings which a licensing board must make prior to autho-rizing the issuance of an operating license. Most of these findings are totally irrelevant to the issue raised in the contention. Thus, Applicant requests that the Board strike the citation to 10 CFR 550. 57 (a) (1-6) , and linit the con-tertion as requesting that the Applicant establish that it has appropriately resolved those matters which gave rise to the events identified in the subparts of the contention, to the extent they are relevant to the Applicant's ability to operate Byron Station.
Contention 2 This contention totally fails to comply with the specificity requirements for an adequate contention. Fur-l127 245
thermore, certain portions of this contention raise issues which are not appropriate for adjudication in this pro-ceedi.ig.
The contention states that certain residents will be exposed to radiation in excess of the levels of specified under 10 CFR Part 20 as a result of the operation of Byron Station. However, Petitioners do not specify which Part 20 limits they contend will be exceeded. Moreover, 10 CFR Part 20 sets limits on the radiation doses caused by operation of a single facility, and these doses are considerably higher than the 10 CFR Part 50 Appendix I doses which Applicant is also required to meet. Consequently, 10 CFR Part 20 is irrelevant to the substance of the contention.
To the extent that subparts (a) and (b) of the contention allude to cumulative radiation exposures re-sulting from routine emmissions from Byron Station and surrounding nuclear generating units, Applicant believes that this issue is appropriate for adjudication in these proceedings. However, the cumulative dose issue should be treated as an environmental rather than a safety issue.
To the extent that Petitioners are attempting to introduce the issue of cumulative exposures resulting from simultaneous accidents at the various generating stations, the contention is deficient. There is no basis whatever for believing that such an accident scenario is credible. As a result, Petitioners have failed to support their assertion i127 246
that the safety analysis performed by Applicant and the Staff relating to radiation exposures resulting from pos-tulated accidents is inadequate. It is particularly im-portant that novel contentions such as advanced here be supported by an adequate evidentiary basis. Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-74-5, 7 AEC 19 (1974).
Finally, Petitioner's citation to 10 CFR Part 34, (b), (4) and (a), (4) is totally inapplicable to these proceedings as these provisions refer to licenses for radiography and radiation safety requirements for radio-graphic operations for which no license application is under consideration in this proceeding.
Applicant requests that the Board strike this contention in its entirety for lack of specificity and supporting basis. In the alternative, Applicant requests that the Board order Petitioners to submit a suitable contention regarding whether the cumulative exposures re-sulting from routine emmissions from the Byron Station and nearby nuclear generating units create an unacceptable environmental impact.
Contention 3 This contention appears to raise an issue suitable for adjudication in these. proceedings. Applicant would only request that the citation to the regulation be corrected to reflect the appropriate regulatory provision, that is, 10 CFR Part 50, Appendix E.
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Contention 4 This contention questions the adequacy of the postulated accident analysis performed by Applicant ande th Staff.
Petitioners have failed to specifically define in an intelligable manner the accident scenerio which the y assert ought to have been considered.
The phrase " multiple, mutually independent failures...not to be misinterpreted to imply subsequent failure of corrective measures occurring after a single initiating failure" is vague and unspecific andoes d not provide the other parties with sufficient informatio n to know what issues Petitioners are attempting to rais e. The citation of 10 CFR 550.34 (b) (4)in the Contention provides no hint of the issue sought to be raised as 10 CFR b) .
550(4) 34 (
requires an evaluation of the design and performance all of safety systems of the plant.
Therefore, the Contention should be dismissed.
Moreover, Petitioner does not assert that Appli-cant has not designed and constructed Byron Station meet to any particular General Design Criteria for Nuclear Facili -
ties set forth in Appendix A to 10 CFR Part 50 .
These criteria are intended to assure that the facility is d e-signed and constructed in a manner which provides a e reason assurance that the facility can be operated without undue risk to the health and safety of the public.
Petitioners must be asserting that compliance with the Appendix A gn desi criteria does not establish that the facility can be ope rated without unduly endangering the public health and safety .
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As such, the Contention amounts to an impermissible chal-lenge to the adequacy of the Commission's regulatory frame-work to protect the public health and safety, and should be dismissed pursuant to 10 CPR S2.758.
In performing the safety analysis for Byron Station, Applicant relied upon the methodology set forth in applicable Staff regulatory guides. Although these Staff guidance documents do not have the legal effect of regulations, the Commission has held that compliance therewith is likely to amount to compliance with regulations. Petition For Emer-gency and Remedial Action, CLI-78-6, 7 NRC 400, 406-407 (1978). Petitioners do.not allege that Applicant has not complied with the methodology set forth in applicable Staff regulatory guides, nor do Petitioners question the adequacy of these guides. As such, Petitioners have not made a showing sufficient to overcome strong prima facie conclusion that Applicant's accident analysis conforms with 10 CFR 550.34.
Contention 5 This contention raises the issue of the need for power which will be generated by Byron Station. On its face, the contention is defective and must be dismissed for two reasons. First, the contention challenges the economic cost-efficiency of the Station. Such matters remain in the province of the utility and its supervising State regulatory 1127 249
commission.b! Consumer Power Company (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155, 162 (1978).
Secondly, Contention 5 asserts that due to slower than projected growth in peak demand the power produced by Byron Station will not be needed to supply Applicant's peak load as early as was originally assumed during the construc-tion permit proceedings. Recently, in Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), 2 C.C.H. Nuc. Reg. Rptr. 130,383 (May 2, 1979) , the Commission held that relitigation of the need for power issue is not warranted if Intervenors disagree only on when a particular facility will be needed to meet peak demand,..not whether the facility will be needed at all. I see also, Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-477, 7 NRC 766, 770 (1979). Growth in peak demand is wholly irrelevant at the operacing license stage where the issue is whether a fully constructed baaeload generating plant should be turned on.
1/ The Illinois Commerce Commission currently has pending In Illinois Commerce Commission Docket #78-0646 an investi-gation into the economic reasonableness of the current con-struction schedule for the Byron facility. The reasoning of the Appeal Board in the Midland decision is particularly cogent when the very issue sought to be raised is pending before the appropriate regulatory agency.
2/ Shearon Harris involved a motion to reopen a construction permit proceeding. In an operating license proceeding, the basis for precluding reexamination of the need for power issue is even stronger.
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Contention 6 This contention attempts to raise certain factors which it is assertef. should be considered in the cost-benefit analysis for the Station. As with the previous contention, this contention could be interpreted as raising issues which relate to the economic costs of the Station, and for the reasons stated above such references should be striken.
Subpart (a) pertains to the costs of decommis-sioning the Station. In March of 1978, the Commission announced its intent to commence rulemaking proceedings regarding decommissioning criteria for nuclear facilities.
43 Fed. Reg. 10370. This proceeding will specifically consider the environmental effects associated with plant decommissioning. Id., at 10371. Since the issues per-taining to the environmental and health and safety costs of decommissioning will be considered in these rulemaking proceedings, they need not he considered in this operating license proceeding. See Vermont Yankee Nuclear Power Corp.
- v. NRDC, 435 U.S. 519 (1978). Accordingly, subpart (a) should be stricken.
Subpart (b) attempts to introduce issues per-taining to midlife chemical decontamination. This issue is totally beyond the scope of this proceeding. Applicant's operating license application does not include any request 1i27 251
for authorization to undertake such decontamination and Petitioners have not established any basis for assuming that Applicant intends to do so. The Board should accordingly stike this portion of the contention as attempting to raise issues beyond the scope of the prcposed action.
Subpart (c) questions some of the costs associated with the uranium fuel cycle. As we have previously in-dicated, economic cost issues are not appropriately before this tribunal. With respect to environmental effects as-sociated with the uranium fuel cycle, these effects are quantified in 10 CFR S51.20 (e) , Table S-3, and were the basis for the Staff's cost-benefit analysis. Since Peti-tioners have not shown that the environmental etfects iden-tified in Table S-3 are inapplicable to the environmental analysis relating to Byron Station, subpart (c) must be stricken as an impermissible attack on the Commission's regulations pursuant to 10 CFR 52.758.
Subpart (d) requests that unspecified new infor-mation concerning indirect health cost' f morality and mor-bidity associated with the mining of f- and exposure to low levels of radiation should be cont _tered in the environ-mental cost-benefit analysis for the Station. At the operating license stage, a new cost-benefit analysis is not required unless Petitioners show that there is sig-nificant new information which is likely to change the previous determination made at the construction permit 1127 252
stage of the proceedings. There has been no attempt to make such a showing. Moreover, in view of the low levels of effluents from mining, milling and routine operation, it is manifest that such a showing cannot be made.
Subpart (e) again attempts to introduce issues relating to economic costs of the Station. Such issues are not within the jurisdiction of the Commission. Consumer Power Co. (Midland Plant, Units 1 and 2) , ALAB-458, 7 NRC 155, 162 (1978).
Subpart (f) totally fails to meet the specificity requirements of a valid contention. It is not clear what is meant by indirect environmental and economic costs, nor have petitioners identified the specific type of accidents to which they refer. Thus, this subpart should be dismissed as vague and ambiguous.
Subpart (g) merely attempts to raise issues which are identical in all respects to those raised in Contention 5, and should thus be stricken as repetitive.
Subpart (h) attempts to introduce issues related to energy alternatives to Byron Station. During the course of the proceedings relating to the issuance of the construc-tion permit for the station, substantial evidence was pre-sented with respect to this issue, and the Board found that the construction of the Syron units for operation was en-vironmentally justified in view of the availability of alternative energy sources. CommonJaalth Edison Company (Byron Station, Units 1 and 2), LBP-74-87, 8 AEC 1006, 1027-1127 253
1034, (1974). Petitioners have not asserted any changed circumstances which would affect this finding, and thus these issues should not be reexamined during the course of these proceedings. Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-44-12, 7 AEC 203 (1974);
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1422 and fn. 5 (1977).
Contention 6 should be stricken as an inappropriate issue for adjudication in this proceeding.
Contention 7 This contention is totally devoid of adequate specificity and basis. The unspecified citation to the Gulbranson publication and " private communication" does not aid in clarifying the issue (s) which Petitioners attempt to raise. If there are legitimate and supportable concerns pertaining to the matters raised in the contention, Inter-venor should have brought forth these concerns in a com-prehensible manner. Having failed to do so, the contention must be dismissed.
Contention 8 Applicant does not object to this contention and considers the issues raised therein as appropriate for adjudication in these proceedings.
Contention 9 As in subpart (b) of Contention 6, Intervenors attempt to raise issues pertaining to midlife chemical 1127 254
decontamination of the Station. For the reasons stated in response to that contention, subpart (a) and (c) of Conten-tion 9 must be stricken.
Subpart (d) raises issues concerning thermal plume effects on fish eggs and larvae. Contrary to Petitioners assertion, 55.4.2.2.3 of the Byron Station construction stage Final Environmental Statement discusses such effects.
Given that Petitioners have not established any changed circumstances which would require reexamination of these issues at this stage of the proceedings, subpart (d) of Contention 9 must be stricken. Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-44-12, 7 AEC 203 (1974).
Contention 10 Contention 10 contains a laundry list of unre-solved safety problems asserted to apply to Byron Station.
Each of the issues raised in subparts (a)-(f) are items which are the subject of generic Staff investigations. In Gulf Etate Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977), the Appeal Board held that the mere identification of a generic matter which is the subject of further study by the Staff does not fulfill an interrenor's obligation to specifically identify issues it wishes to litigate during the course of adjudicatory proceedings. The party seeking to introduce such issues must affirmatively establish the requisite nexus between the license application and the generic item.
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"(I] t must generally appear both (1) that the undertaken or contemplated project has safety significance insofar as the reactor under review is concerned; and (2) that the fashion in which the application deals with the matter in question is unsatisfactory, that because of the failure to consider a particular item there has been an insufficient assessment of a specified type of risk for the reactor, or that the short-term solution offered in the application to a problem under Staff study is inadequate." Gulf States, supra at 773.
Petitioners have not even attempted to meet this require-ment.1!
Subpart (c) of Contention 10 provides strong support for the reasonableness of the Gulf States nexus requirement. During the Byron Station construction permit proceedings, the Licensing Board specifically requested that evidence be presented concerning the methods by which the Applicant will maintain steam generator tube integrity.
Both the Staff and the Applicant presented evidence regard-ing this matter to the board's satisfaction. Commonwealth Edison Company (Byron Station, Units 1 and 2, and Braidwood Station, Units 1 and 2), LBP-75-74, 2 NRC 972, 980, 981, 990 (1975). Petitioners do not allege any facts which establish changed circumstances; or that Applicant has nct complied 3/ The holding in Virginia Electric Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC 245 (1978) does not modify this requirement. The North Anna case concerns only the duty of the Staff to consider generic items at the operating license stage, and does not affect the requirement imposed by the River Bend decision that a party wishing to litigate a generic item in a con-tested proceeding establish a nexus between the item and the specific facility for which a license is being sought.
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with the commitments it proposed to undertake as a solution to the technical problem or that the solution accepted by the Construction Permit Stage Licensing Board as adequate in fact is not. Clearly, Petitioners are merely seeking to relitigate issues which were examined in detail and settled in prior proceedings without establishing any basis therefor.
None of the subparts of Contention 10 establish a nexus between the identified technical matter and the ulti-mate health and safety effects of operating the Byron Station, and accordingly the contention must be dismissed.
CONCLUSION For the reasons stated above, Applicant requests that Contentions 1, 2, 3, 4, 5, 6, 7, 9 and 10 be dismissed from this proceeding. In the alternative, Applicant requests that the Board order that Petitioners submit specific and supportable contentions relating to the issues raised in Contentions 1, 2 and 3 which have been identified as proper subjects for adjudication in this proceeding, and dismiss Contentions 4, 5, 6, 7, 9 and 10 in their entirety.
DATED: August 14, 1979 Respectfully submitted, y c i ll$. AY (//4)
Michael I. Miller D'f {$fb ISHAM, LINCOLN & BEALE 1 M. Murppy' One First National Plaza - - //
Suite 4200 % L_, '
Chicago, IL 60603 / ' Alan V.~Ble'lawski (312) 558-7500 Attorneys for Applicant 1127 257
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
)
In the Matter of )
)
COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454
) 50-455 (Byron Nuclear Station, )
Units 1 and 2) )
)
CERTIFICATE OF SERVICE I, Alan P. Bielawski, hereby certify that copies of " ANSWER OF COMMONWEALTH EDISON COMPANY TO THE STATEMENT OF CONTE'lf0NS OF DAARE AND SAFE" have been served upon the following by deposit in the United States rail first class, postage prepaid this 14 day of August, 1979.
Marshall E. Miller, Esq. Dr. A. Dixon Callihan Atomic Safety and Licensing Union Carbide Corporation Board Panel P. O. Box Y U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Myron Karman, Esq.
Dr. Richard F. Cole Office of the Executive Atomic Safety and Licensing Legal Director Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Richard J. Goddard, Esq. Appeal Board Panel Office of the Executive U.S. Nuclear Regulatory Legal Director Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Secretary Attn: Chief, Docketing and Atomic Safety and Licensing Service Section Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 1127 258
Chief Hearing Counsel Ms. Betty Johnson Office of the Executive 1907 Stratford Lane Rockford, Illinois 61107 Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Bruce von l ellen Department of '3iological Ms. Beth L. Galbreath Sciences Northern Illinois University 734 Parkview DeKalb, Illinois 60115 Rockford, Illinois 61107
/ L y
Alan P. Bielawski i127 259