Text

Response to ASLB 791010 Memorandum & Order Re Special Prehearing Conference.Requests Dismissal or Mod of Some of Intervenors Contentions Due to Noncompliance W/Regulations. Certificate of Svc Encl
	ML19211A005
Person / Time
Site:	05000599, 05000600
Issue date:	11/23/1979
From:	; COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE
To:	; Atomic Safety and Licensing Board Panel
References
	NUDOCS 7912140192
	Download: ML19211A005 (34)
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NUCLEAR REGULATORY COMMISSION 0

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Commonwealth Edison Co.,

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Docket Nos.

S 50-599 and

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S 50-600 (Carroll County Site)

)

November 23, 1979 APPLICANT'S RESPONSE TO THE MEMORANDUM OF SPECIAL PREHEARING CONFERENCE AND ORDER Pursuant to the Board's request, Commonwealth Edison Company, Interstate Power Company, and Iowa-Illinois Gas and Electric Company

(" Applicants") respond to the Board's " Memorandum of Special Prehearing Conference and Order," dated October 10, 1979 (" Order").

Preliminary Matters At the Special Prehearing Conference, the Board orally ruled on the admissibility of issues raised in Inter-venors' contentions.

In two specific instances, the Board's Order does not reflect its oral rulings.

For the purposes of this brief, Applicants will respond to the Board's Order as though the State of Illinois Amended Contention 14(a) and the Jo Daviess County Ad-Hoc Committee Contention III(a) have been tentatively accepted for adjudication in this proceeding.

1572 263

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Contentions A.

Introduction We are in general agreement with the Board that the Contentions which have been tentatively accepted refer to matters which are proper for consideration in ear!.y site re-view proceedings.

However, many of these contentions fall far short of complying with the basis and specificity re-quirements of 10 CFR S2.714, and should accordingly be dismissed.

The Commission has stated, " definition of the mat-ters 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, an intervenor "must be specific as to the focus of the de-sired hearing... [a] nd contentione... serve the purpose of de-fining the concrete issues which are appropriate for adjudi-cation in the proceeding.

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-106, 6 AEC 188, 191, affirmed CLI-7312, 6 AEC 241 (1973), affirmed sub. nom. BPI v. Atomic Energy Commission, [502 F.

2d 424, 425 (D.C. Cir. 1974)]."

Gulf States Utility Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 769 (1977).

The fundamental purpose for requiring that the issues be set forth with adequate specificity and particularity is to pro-vide the Applicant and the Staff with a fair opportunity to 1572 264 know precisely what the issues are, exactly what proof, evi-dence or testimony is required to meet the issue and exactly what support Intervenors intend to adduce for their allega-tions.

River Bend, supra, at 771.

In conjunction with this proceeding, Applicants have filed a detailed and comprehensive study which describes and analyzes the environmental and safety site suitability considerations relating to the construction and operation of two nuclear reactors at the Carroll County site.

This study, with revisions, has been supplied by Applicants to all of the parties to this proceeding.

With few exceptions, Appli-cants' Site Suitability Report addresses each of the specific issues alluded to in the contentions submitted in this proceeding.

Nonetheless, many of Intervenors' contentions simply assert that Applicants' analysis of these issues is

" insufficient," " inadequate," or in some other way deficient, without specifying the nature of the deficiency.

In general, these contentions fail to indicate what additional data ought to have been considered by Applicants, or why Applicants' findings and conclusions are not supported by the data presented in the Site Safety and Environmental Reports.

As a result, these contentions give Applicants no clue as to what specific issues Intervenors wish to pursue in this proceeding nor do they serve to notify Applicants of the nature of the proof which must be adduced to meet the issues 1572 265 At a minimum, an admissible con-raised in the contention.

tention should permit the Board to conclude that a genuine For the most issue is in fact raised by the contentions.

contentions utterly fail to achieve this part, Intervenors' these contentions should be dismissed, purpose.

As such, as unduly vague and inspecific.

pursuant to 10 CFR S2.714, Certain of Intervenors' contentions identify matters which are in fact not mentioned in the Site Suitability Study.

As we indicate in our discussion of specific cententions, Applicants have no objection to the admission of these con-tentions where we have determined that the matters raised Similarly, are in some way relevant to these proceedings.

Applicants do not object to the admission of certain of the contentions which sufficiently identify specific impacts which may be attributable to the construction and/or operation of the Carroll County facility, provided these contentions are construed as asserting that the impacts identified are thereby requiring a finding that the Site is unacceptable, not suitable for its intended use.

By not objecting to the admissibility of certain contentions, Applicants do not concede that of Intervenors' they are all legally relevant to this proceeding or that there is ani merit to the substance of the proposed con-We believe that many of these contentions may tentions.

present mixed issues of law and fact and are more easily i572 266 addressed in the context of motions for summary disposition.

In this brief, Applicants will address only those contentions which have been tentatively admitted pursuant to the Board's Order.

If, following the submission of briefs by the parties in response to the Order, the Board admits contentions that were not admitted during the course of the Special Prehearing Conference, Applicants request that they be granted leave to submit a supplemental brief in response to these newly admitted contentions.

A.

State of Illinois Contention 4 states:

10 CFR 551.20(a) (5) requires that the Applicant's Environmental Report be "sufficiently complete to aid the Coinmission in developing and exploring - pursuant to Section 102 (2) (E) of the National Environmental Policy Act - appropriate alternatives."

Applicants, in CCS-SS-ER Ch. 9.1 have not met the required stan-dard in that they have failed to provide adequate discussion of alternative sites.

Applicants agree that issues pertaining to alter-native sites are generally proper subjects for contentions in this proceedings.

However, the State of Illinois' Con-tention 4 fails to raise a specific issue with respect to alternative siting.

The Contention asserts that Ch. 9.1 of the Carroll County Station Site Suitability Environmental Report does not provide an adequate discussion of alternative sites.

First, Ch. 9.1 pertains only to alternative energy sources 1572 267

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and expressly states that the consideration of this issue will be deferred until the construction permit stage of the proceeding.

Therefore, Chapter 9.1 is inapplicable to Ap-plicant's alternative sites analysis.

More importantly, the contention fails to comply with the basis and speci-ficity requirements of 10 CFR S2.714.

Chapter 9.2 of the Environmental Report contains a detailed discussion of Applicants' siting analysis and discusses environmental considerations in regard of ten specific candidate sites.

The State of Illinois' Contention does not identify any specific deficiencies regarding Applicants' alternative siting methodology or conclusions nor does it set forth a basis for such asserted deficiencies; it only asserts that Applicants' discussion of these issues is " inadequate."

This Contention does not raise a specific issue for adju-dication in this proceeding and should accordingly be dismissed.

Contention 5 states:

Applicants have failed to adequately show that the Plum River Fault, which runs within 5.5 miles of the site, is not a capable fault in determining site geologic suitability and necessary safety measures for the proposed reactors.

Sections 2.5.1.1 and 2.5.1.2 of Applicants' Site Safety Report provides detailed discussions of seismological considerations associated with the Carroll County site.

Specifically, sections 2.5.1.1.5.2.1, 2.5.1.1.5.3.1.1 and i572 268 2.5.1.2.3 present in-depth analyses of the Plum River Fault and provide the technical and scientific bases for Appli-cants' classification of the Plum River Fault as noncapable.

Nonetheless, Intervenor simply asserts that Applicants' dis-cussion and analysis is " inadequate."

Once again, no clue is given as to the specific deficiencies with Applicants' analysis and, as a result, Intervenor has not identified the concrete issue which it seeks to litigate in this pro-ceeding.

Accordingly, Contention 5 should be dismissed for failure to comply with the specificity requirements of 10 CFR S2.714.

Contention 6 states:

Applicants have failed to adequately evaluate the effects of the proposed reactors upon terres-trial and aquatic life in the proposed site area generally, and specifically in the Upper Mississippi River Fish and Wildlife Refuge in that:

(a)

Applicants have not adequately shown that the birds considered endangered spe-cies, including the bald eagle, which inhabit or use the proposed site will be able to relocate or find adequate substi-tute areas without significant increases in competition or significant effect on their populations.

(b)

Applicants have failed to adequately evaluate the effects of the noise, dust, vibration and vehicular traffic during construction on wildlife and the ecology of the area.

(c)

Applicants have failed to adequately evaluate the effects of the proposed water intake structure on terrestrial and aquatic 1572 269 inhabitants of the site and of the upper Mississippi Fish and Wildlife Refuge:

(i)

There is inadequate consi-deration of the effects of impingement and entrainment on aquatic life; (ii)

There is inadequate con-sideration of the effects of the intake on spawning grounds; (iii)

There is inadequate con-sideration of the effects of the intake on water fowl breeding and feeding; (iv)

There is inadequate con-sideration of the effects of the intake on the availability of food supplies for both agnatic and terrestrial species which rely on the site and Refuge for feeding grounds; (v)

There is inadequate con-sideration of changes which will occur in the habitats of terres-trial species which rely on the areas to be affected by the pro-posed water intake.

(d)

Applicants have failed to adequately eval-uate the effects of the proposed water discharge system, which will carry and discharge the blow-down from the proposed cooling towers, upon the terrestrial and aquatic habitats and users of the site and of the Upper Mississippi River Wildlife and Fish Refuge in that:

(i)

Applicants have failed to ade-quately consider either daily or cumulative effects of any radiological characteristics of the discharge on local species; (ii)

Applicants have failed to con-sider either daily or cumulative effects of the thermal characteristics of the discharge on local species; 1572 270 (iii)

Applicants have failed to ade-quately consider either the daily or the cumulative effect of the tempera-ture and any regular radiation release from the discharge pipe itself upon terrestrial life surrounding it.

As worded, Contention 6 fails to provide a basis for Intervenors' assertion that Applicants have not adequately considered the matters raised in the contention, and should accordingly be dismissed.

In the alternative, Applicants request that the contention be modified to assert that the environmental impacts identified in the contention are un-acceptable, thereby requiring a finding that the Carroll County Site is not a suitable site for the construction and operation of the reactors intended for the Carroll County Site.

Contention 7 states:

Applicants have failed to establish that oper-ation of the proposed station 2.3 miles from Stansky

[ sic] Airport does not present an undue risk to the public's health and safety.

Specifically, there is insufficient data to assess the risk that an aircraft might crash into the station and environmental and safety consequences of radiological releases from the plant resulting from such an accident.

Applicants believe that this contention adequately identifies an issue for adjudication.

Contention 8 states:

In determining public health and safety, ap-plicants have failed to adequately consider or take into account the effect on the proposed reactor of explosions which could occur at the Savanna Army which is 13.2 miles from the proposed site

Depot, and is used for the storage of artillery, ammuni-tion, bombs and their components, grenades, rockets, mine and engineering explosives, riot control agents, fuses, primers, pyrotechnics, and (missile]

warheads (CCS-SS-SSR S2.2.2.2.).

Applicants believe that this Contention adequately identifies an issue for adjudication in this proceeding.

Contention 9 states:

In determining public health and safety. appli-cants have failed to adequately consider or take into account the effects on the proposed reactors of explosives which could occur during the trans-portation of such ammunition, as mentioned above on either the Burlington Northern Railway or an Illinois Route 84.

Applicants belic/e that this Contention adequately identifies an issue for adjudication in this proceeding.

Contention 14 states:

Neither Chapter 3 nor Chapter 5 of the CCS-SS-ER discuss the impact on the environment of non-routine or accidental radiological emis-sions into the ground water.

(a)

There is no discussion of control mechanisms to prevent leaks of radio-active materials from being absorbed into the ground water.

Applicants believe that this Contention adequately identifies an issue for adjudication in this proceeding.

Contention 15 states:

The proposed Carroll County Station is located in a unique part of Illinois.

It is topographically unique (CSS-SS-ER S2.6-6) and historically significant (CCS-SS-ER S2.6).

Therefore, there is considerable use of the area for vacationing and recreation.

1572 272 (a)

The Galena area, just north of the proposed Station has been preserved as an historical monument.

It relies on tourists for much of its economic support and provides tourists with an historical and educational experience which is unobtainable in any other area of the state.

There has been no con-sideration of the effect the carrol County Station will have on the tourist population and economic well being of areas relying on tourist trade.

(b)

The Galena Territory and Apple Canyon situated north of the proposed station are "second home communities."

Residents have been attracted to the area because of its aesthetic and historical attributes.

There has been no consideration of the effect of the Carroll County Station on real estate values of communities which are dependent on preservation of the aesthetic quality of the region.

(c)

Mississippi Palisades State Park just north of Savanna, provide natural woodlands for recreation and camping.

There has been no consideration of the effect of the pro-posed Carroll County Station on the use of this facility as a source of recreation.

Applicants believe that this Contention adequately identifies issues for adjudication in this proceeding.

Contention 16 states:

Potential areas of archeological value were not investigated in Site Suitability Environmental Re-port (CCS-SS-ER S8.3-29).

The Sauk and Fox Indian Tribes occupied Carroll County along the Mississippi River until the last century and the final retreat following the Blackhawk War.

Many artifacts of indian civilization are extinct.

There has been no consideration of whether utilization of the Carroll County Site will cause disturbance of Indian Burial Grounds and loss or destruction of archeological knowledge and artifacts significant to past and present Native American Culture.

1572 273 Applicants believe that this Contention adequately identifies issues for adjudication in this proceeding.

Jo Daviess County Ad-Hoc Committee on Nuclear Energy B.

Information Contentions Contention II states:

This Site, and Applicant's Byron Station Site, are uniquely located in that each lies within six miles of the Plum River Fault which originates in Southern Wisconsin, extends southwesterly through Northern Illinois, crosses the Mississippi River at and ter-a location within five miles of this Site, minates near Maquoketa, Iowa.

In regard to this extensive geologic formation, Applicant has not sufficiently examined, researched, and considered the following matters, as required by the NEPA, the EQIA, and 10 CFR Part 51:

(a)

The insufficiency of data regarding potential engineering, safety, and geo-logic difficulties resulting from a possible shifting of the Plum River Fault.

(b)

The insufficiency of data regarding such difficulties resulting from seismic activity related to such fault.

(c)

The insufficiency of data regarding such difficulties resulting from the con-struction and erection of a nuclear power plant upon Parkland Sand.

The insufficiency of data regarding such (d) difficulties resulting from the heat created by the water used to cool a nuclear power plant upon the surrounding sand prairie area at said site, including its pipeline corridor.

If Subsections (a) and (b) of Contention II were construed as asserting that Applicants' seismic investigations in relation to the seismic and geologic items discussed in these subparts do not comply with the requirements of Appendix A to 1572 274 10 CFR Part 100, Applicants believe that the Contention adequately identifies issues for adjudication in this pro-ceeding.

Thus, we propose that "10 CFR Part 100, Appendix A" be substituted for the citation to "NEPA, EQIA and 10 CFR Part 51."

Furthermore, the reference to the Byron Station should be stricken on relevancy grounds.

Contention III states:

This Site is uniquely located in that it lies within 2.5 miles of the Upper Mississippi River Fish and Wildlife Refuge, one of the nation's major nature preserves and the primary resting area for migratory birds and water fowl in the Mississippi River Flyway.

The River itself has the largest waterbed in the nation, and is home to several un-usual, rare, or unique species of aquatic, avian and terrestrial wildlife.

In regard to these eco-logical concerns, Applicant has not sufficiently examined, researched, and considered the following matters, as required by the NEPA the EQIA, and 10 CFR Part 51:

(a)

The effect upon aquatic and avian (in-cluding bald eagles, peregrene falcons, and red-shouldered hawks) spawning, resting, and wintering habits of keeping Pool 13 of the River open in the wintertime.

(b)

The effect of the operation of the water intake and discharge system, and its potential for thermal increases, upon the aquatic, avian, and terrestrial wildlife habitats of Pool 13, its adjacent marsh-lands and sand and native prairies, and surrounding uplands.

(c)

The effect upon migrating flight and resting patterns and habitats, of logging Lad icing, and of salt drift and deposi-tion, from the Site's cooling towers.

(d)

The effect of the strong river cur-rent upon the potential transportation of contaminated discharges into Pool 13.

1572 275 (e)

The following hydrological concerns:

(1) the high potential for con-tamination of the unconsolidated aquifers located under said site.

(f)

The following meteorological concerns:

(1) icing and fogging; (2) salt drift and deposition; (3) the effect of severe snow and glaze storms (which are common in the Site area) upon aquatic, avian, and terrestrial wildlife habitats, in relation to the foregoing meterological concerns.

Chapters 2, 4 and 5 of the Carroll County Site Suitability Environmental Report contain detailed des-criptions and analyses of ecological, hydrological and meterological impacts on aquatic, avian and terrestrial wildlife as a result of the construction and operation of the Carroll County Station.

Nonetheless, Intervenors assert that Applicants' consideration of these matters is, for unspecified reasons, insufficient.

Such a Contention fails to raise an issue for adjudication, and should accordingly be dismissed.

Contention IV states:

As with all locales for which a nuclear power plant site is proposed, the Jo Daviess Carroll Counties present a vast number of unusual social In and demographic qualities for our concern.

these regards, Applicant has not sufficiently ex-amined, researched, and considered the following i572 276

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the EQIA, and 10 matters, as required by NEPA, CFR Parts 50 and 51:

The effect of construction, main-(a) and operation of a nuclear power plant at said Site upon the population and

tenance, population density computations put forth in Applicant's Environmental and Safety Reports.

The proximity of said Site to overtnamely the Savanna Or (b) military targets, nance Depot which lies seven miles to the and the Savanna Northwest of the Site, railroad yard, which lies three miles to the Northwest of the Site.

The proximity of said Site to Carroll namely Stansky [ sic]

(c)

County's major airport, Memorial Field which lies two miles to the and the incumbent Northwest of the Site, difficulties therein concerning lines of approach and departure and local operations.

The necessity that Applicant's pipeline corridor will temporarily and permanently (d) one power-disrupt six roads, one railroad, and two an area of native prairie, in order to be constructed, main-

line, canals, tained and operated.

The effect of construction, maintenance, and operation of a nuclear power plant upon (e) this Site, upon the potential for soil erosion and the replacement of prime farm-land by more marginal land.

(a), (e) and Applicants believe that Subparts raise issues which are appropriate for adjudication (d) if these subparts are construed as asserting that the impacts identified are unacceptable.

1572 277 expresses concern regarding possible Subpart (b) in relation to impacts related to " overt military targets" 10 CFR 550.33 the siting of the Carroll County Station.

expressly provides that an Applicant for an operating license need not provide the design features or other measures for the purpose of protecting against the effects of attacks or acts of destruction by an enemy of the United States or the use or deployment of weapons incident to U.S. defense the matters which Intervenor seeks to activities.

Thus, litigate by way of Subpart (b) are expressly excluded from Accordingly, the licensing process pursuant to S50.13.

this subpart should be dismissed as an impermissible chal-lenge to the Commission's regulations pursuant to 10 CFR S2.758.

See, Siegel v. AEC, 400 F.2d 778 (D.C. Cir. 1968).

On February 21, 1979, the Federal Aviation Administration completed an aeronautical study (Attachment of the proposed construction of the Carroll County "A")

facility, and concluded:

The proposed construction (of the Carroll County facility) would have no substantial adverse effect on the safe and efficient utilization of the airspace by aircraft or on the opera-and tion of navigation facilities, would not be a hazard to air navigation.

The effect of the Carroll County facility upon the operation In-of Stransky Memorial Airport was expressly considered.

tervenors do not allege any facts which call into question As such, the adequacy of the FAA study or conclusions.

1572 278 Intervenors have not identified an adequate basis for subpart (c) of this contention, and it should be dismissed pursuant to 10 CPR S2.714.

Contention V states:

While it appears true that the selection of a nuclear power plant site heralds a short-term increase in local economies occasioned by the construction process, the long term local economic effects are of more essential concern to the re-sidents of the Site 50-mile area.

In this regard, Applicant has not sufficiently examined, researched, and considered the following matters, as required by NEPA, the E0IA, and 10 CFR parts 50 and 51.

(a)

Inasmuch as the major economy of the Site 50-mile area is the herding of dairy, beef, and pork animals and the cultivation of crops, Applicant has failed to pro-vide sufficient data regarding the following agricultural concerns:

(3)

The effect of fogging and icing, and salt draft and depo-sition, upon the agricultural economy.

(4)

The potential in this Site project for the economic dis-placement of area residents, that is farmers and their fam-ilies, away from the area and toward the urban environment.

(b)

The potential for discouragement of the transient recreational and tourist economy of the Site 50-mile area

because of the construction, maintenance, and operation of a nuclear power plant at said Site.

Per the letter dated November 6, 1979, from Richard Goddard to the Board, the parties have agreed to substitute the words "Jo Daviess County" for "the Site 50-mile area."

1572 279 Inasmuch as this Contention addresses only envi-ronmental and socio-economic concerns, the citation to 10 CFR Part 50 should be stricken.

Provided that the Conten-tion is construed as asserting that the impacts identified are unacceptable, Applicants believe the Contention raises issues appropriate for adjudication in this proceeding.

C.

Iowa Socialist Party Contention 1(a) (ii) states:

In their Site Safety Report, the Applicants have not demonstrated all the safety and environ-mental aspects of the Site have been adequately met under the requirements of 10 CPR and the National Environmental Policy Act, in that:

(a)

Adverse effects on land use patterns in the area have not all been fully considered and detailed, such as, (ii) failure to adequately consider geological characteristics of the area such as the Plum River Fault.

As with the Contentions submitted by the State of Illinois and Jo Daviess County pertaining to the Plum River Fault, this Contention totally fails to comply with the basis and specificity requirements of 10 CFR S2.714 and should accordingly be dismissed.

In the alternative, Applicants request that Subpart (a) be stricken on the ground that the matters alluded to in this subpart, i.e.,

land use patterns, are irrelevant to the seismic issue addressed in Subpart (ii).

Contention 1(b) states:

In their Site Safety Report, the Applicants have not demonstrated all the safety and envi-1572 280

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ronmental aspects of the site have been adequately met under the requirements of 10 CFR and the National Environmental Policy Act, in that:

(b)

The economy of the area would be impacted to a greater degree than des-cribed by the Applicants, for example, (i) greater loss in property values than described, (ii) greater loss in productive capacity of the land than described, (iii) greater impact on the local housing market than described.

Intervenors have provided no basis whatsoever for their assertions that the impacts discussed in this Contention will be more severe than described by Appli-cants.

As such, the Contention fails to comply with the requirements of 10 CFR S2.714 and should be dismissed accordingly.

Contention 1(c) states:

In their Site Safety Report, the Applicants have not demonstrated all the safety and environ-mental aspects of the Site have been adequately met under the requirements of 10 CFR and the National Environmental Policy Act, in that:

(c)

The siting of the plant would increase the likelihood of adverse effects on the community characteristics of the area, for

example, (i) an increase in the likelihood of disease from low-level radiation effects could increase migration from the area, (ii) people would move from the area in fear of an accident.

i572 281 During the course of the Special Prehearing Con-ference, the Board ruled that this Contention is basically acceptable if it can be supported by demonstrable evidence.

(Tr. at 68-69)

Applicants interpret this ruling as indi-cating to Intervenors that the Contention will be deemed appropriate for adjudication only if Intervenors can supply an adequate evidentiary basis in support of the novel issues raised therein.

See Consumers Power Co.

(Midland Plant, Units 1 and 2), CLI-74-5, 7AEC 19, 34 (1974).

Applicants propose that Intervenors be granted a reasonable period of time, for example thirty days, in which to provide an evidentiary basis in support of this contention.

Follow-ing an opportunity for written comment by the parties regarding the adequacy of Intervenors' submittal, the Board could rule upon the admissibility of this contention.

Contention 1(d) states:

In their Site Safety Report, the Applicants have not demonstrated all the safety and environ-mental aspects of the site have been adequately met under the requirements of 10 CFR and the National Environmental Policy Act, in that:

(d) adverse effects on crops, livestock, and other vegetation have not all been fully considered and detailed, such as, (i) loss of protective capacity from low-level radiation.

As with the previous Contention, the Board indi-cated that Intervenors must provide demonstrable evidence 1572 282 in support of this Contention.

(Tr. at 69)

Accordingly, Applicants propose that the Board adopt the same procedure with respect to this Contention as was suggested above with respect to Contention 1(c).

D.

Iowa Public Interest Research Group, Inc.

Contention 1 states:

The Applicants have not demonstrated, in their Site Safety Report, that the Plum River Fault Zone is not a capable fault within the definition used in 10 CFR Part 100, Appendix A, in that no proof is available beyond a period including the last 200,000 years that there has been no recurring activity within the last 500,000 years, ipplicants believe that this Contention raises issues which are appropriate for adjudication in this pro-ceeding.

Contention 2 states:

Applicants' proposed finding No. 109 cannot be made as requested, insofar as WASH-1238 and its update, NDREG-75/038 are currently outdated.

The information in Summary Table S-4 in 10 CFR Part 51 is in need of revision, and no finding based on it can be made as requested.

Further, this is not a matter of law beyond the scope of the Atomic Safety and Licencing Board, but is a substantive consider-ation bearing upon proposed findings of fact.

This Contention can only be interpreted as a direct challenge to 10 CFR S51.20, Table S-4.

A challenge to the Commission's regulations in an adjudicatory proceeding is generally precluded by 10 CFR S2.758(a).

Only where it is shown by affidavit that "special circumstances, with respect to the subject matter of the particular proceeding are such that application of the rule or regulation or provision 1572 283 thereof would not serve the purposes for which the rule or regulation was adopted" will a challenge to the regula-tion be permitted.

10 CFR S2.758 (1)

Inasmuch as Intervenor has failed to make such a showing, the Contention is im-proper and should be dismissed from this proceeding.

Although the Order indicates that Iowa PIRG Con-tention 3(a) has not been tentatively accepted, the Board invited argument from the parties with respect to whether transmission line contentions are suitable for adjudication in this proceeding.

(Tr. at 48)

In this regard, Applicants submit that consideration of this issue would not be appro-priate in this proceeding.

First, Applicants have not More-requested any findings regarding transmission lines.

over, the specific corridors where the lines will be located will not be selected until the construction permit stage.

Consequently, litigation of the precise nature and degree of environmental impacts which may be attributable to trans-mission lines will not be feasible in conjunction with this proceeding.

More significantly, litigation of these issues will have to be repeated at the construction permit pro-ceedings in order to assess the specific impacts to those areas affected by the transmission system.

Therefore, con-sideration of this issue at this time will not be productive and should appropriately be deferred until the construction permit proceedings.

1572 284.

Contention 3(b) states: