ML19220A414
| ML19220A414 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/28/1978 |
| From: | Chandler L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7904170568 | |
| Download: ML19220A414 (9) | |
Text
s Sb U!!!TED ST.TES OF A" ERICA t;UCLEAR RESULATCRY CC'lilSSIC" SEFCRE T"-
_I C S I O*:
In the Matter of
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l'ETROPCLITAri iDIS0ri C05'.?A.
,U '-AL.
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Decket No.,50-121 (Three 11ile,. iar. ' :.uclear s,tation,
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Unit 2)
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NRC STAFF'S ANSWER TO INTERV'GORS' APPEAL B3l1 ALAB-480 AND MOTION TO '.!ITH:RA 1 CPERATING LICE"SE On June 13,19'S, Intervenors, York Committes for a Safe Environment and Citizens for a Safe Environment, filed an " appeal" seeking Ccamission action to (1) rescind the order of the Atcmic Safety and Licensing Appeal Board set forth in ALAB-480, 7 NRC
, (May 30, 1973) insofar as pertains to Three Mile Island Nuclear Generating Station, Unit 2 (Tlil-2) and (2) "immediately withdraw the operating license of Tt11-2..." E For the reasons discussed below, the NRC Staff opposes Intervenors' appeal and urges that it be denied.
I.
BACKGROUND _
On December 19, 1977, the presiding Atcmic Safety and Licensing Scard issued an Initial Decision resolving matters in controversy in connection with the 1pplication for an operating license for TMI-2, and determining all matters appropriately considered in connection with the construction permit for that facility pursuant to 10 CFR Far: S0, Appendix 0, Secticn
-il Although not so styled, the Staff presumes that Intervenors'
" appeal" was intended to constitute a petition for re'fiew pursuant to 10 CFR 5 2.786.
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. C (which, by virtue of the timing of this facility, was applicable). b, Consideration was given both at the evidentiary hearing and in the Initial Cec;. ;cn to the health effects attributable to the nuclear and coal fuel cycle alternati'.es in accordance with the Appeal Board's decision in Tennessee Vallev Authority (Hartsville Nuclear Plant, Units lA, 2A, 18, and 28), ALAB-367, 5 NRC 92 (1977), including extensive discussion of the source term for Radon-222 (Rn-222), as it then appeared in Table e-J to 10 CFR 5 51.20.
In addition, Intervenors' representative and witness, Dr. Chauncey Kepford, presented an analysis which ascribed a far larger value for this radionuclide.
Recognition of Dr. Kep fo rd 's testimony was expressly given Dy the Licensing Board in its Initial Decision, paragraphs no. 123-125, 127. 1/
On appeal from this Initial Decision, intervenors have taken exception to the Licensing Board's findings on the radon matter on grounds sub-
.stantially identical to those now sought to be raised with the Com-miss'cn (see cover letter to the Commissioners frcm Dr. Kepford dated June 12,1978,pp.2,3). As a censcquence of ALAB-480, U the Appeal Board now has before it for resolution all of Intervenors' exceptions includicg the radon matter. The Appeal Board has provided that the Perkins lead case approach described in ALAB-480 will be applicable in this case.
1/ _I_d. at 1223-1221.
d O ALAB-480 vacated the remand of the Rn-222 matter to the Licensing Board which was initially directed by ALAB-465.
g II.
THE RECUIRE"ENTS OF 10 CFR S 2.73s 10 CFR 5 2.786 contemplates discretionary Cc maissicn ree'ew cnly of final Appeal Scard determinations cn the merits of any given matter. E/
There has been no final determination in the case of the TMI-2 proceed-ing.
Currently pending before the Appeal Scard are all exceptions raised by Intervenors including exceptions bearing on the Rr.-222 matter.
Since the Apceal Board has not rendered any final determinaticn respect-ing this matter, there can be no important question of fact, law or policy warranting the exercise of discretionary Ccmmission review under 10 CFR 5 2.786(b); 6_/ indeed, Interven:rs' appeal on this point raises an interlocutory matter whi h is purely procedural in nature.
Cn this basis alone, the appeal is properly denied.
El Statement of Ccnsiderations acccmpanying 10 CFR s 2.786, 42 F. A.
22128. Accord, Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-79-19, 5 NRC 1357 (1977), and CLI 1, 7 NRC 1, N.14 (.1978).
1/ ntervenors' oft-repeated but nonetheless unsupported allegations I
of conspiracy, fraud, and concealment invciving the Ccmmission, its Staff and the applicant in this proceeding, set out at pages a-34 of its appeal, have no conceivable bearing on the factors coverning the grant or denial of Commission review.
Such inflamatory rhetoric by Intervenors dces nothing to establish that Ccmission involvement in such interlocutory matters is appropriate; it merely reiterates, one more time, Intervenors' strong feeling that Com-mission action to deal with the radon error in Table S-3 was too slow in ccming. While there may be reasonable debate about that, Intervenors set forth nothing wnich could conceivably succort their barrage of allegations against the integrity of the Commissioners, Staff and the applicant in this proceeding.
We would add that Intervenors' intemperate and insulting exposition of their pleadings in this proceeding cn numerous other occasions have already drawn a strong warning frca the Acpeal Board. ALAB-474, 7 NRC (May 5, 1978), slip op. at 4.
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4-III.
PRO'!ISIONS OF THE RE".E D Even if it were not an impermissible interlocutory asceal, Intervencr:'
complaints about the procedures prescribed by the Appeal Board in ALA3-480 would not warrant Commission review.
Intervenors allege that use of the Perkins record in thie proceeding, as
.;rected by ALAS-480 "would illegally shift the enormous procedural, evidentiary, and financial burden of pinpointing the numerous specific deficiencies cf the Perkins record.. onto the Intervenors". But they provide no specificaticn of how their role in the TMI-2 proceeding is different from what it would be in the absence of the provisions of ALAB-480.
In fact, it is obvious from a reading of ALAB-480 that it provides abundant safeguards to permit the fullest development of the Rn-222 issue in each proceeding and assures that all parties have ample opportunity to expand on the Perkins record or to remedy deficiencies therein.
See, ALAB-480 at 17-20.
Intervenors' appeal, which expounds at great length on evidentiary and substantive deficiencies in the Perkins record, really demonstrates the reasonableness of the Appeal Board's approach. st;B-480.llows such matters to be raised in indi-vidual proceedings.
Thus, these matters can be considered in the TMI-2 proceeding 'ithout any greater burden upon Intervenors than they have voluntarily undertaken in this appeal.
Beyond their ccmplaints about the Appeal Board's adoption of the Perkins lead-case approach, intervenors basically appear to be voicing their objection to the Appeal Board's decision in ALAB-465 to reopen the record gc.
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. cn the radon issue rather than to decide it on the basis of the existing record. That objection is both belated and interlocutory.
"oreover, in its March 2 Order, the Commission clearly comnitted the question of reopening to the Appeal Board's informed judgment on the circumstances of this case, including particularly the question of whether the radcn issue was inadequately ;xplored before the Licensing Board because of an assumption by the parties that Table S-3 would have precluded it.
In determining to reopen the record, the Acpeal Board gave particular weight to the fact that the Commission's action in permitting the radon
'alue to be litigated in this proceeding " brought about a significant change in the ground rules previously in effect."
It noted that prior to this point, the Board and the parties have been obliged to consider the issue on the basis of the radon value assigned in the S-3 table.
See ALAB-456. While prior to that decision the staff, in disagreement with the Acceal Board, had believed that there was a reasonable basis upon which its new analysis of the radon matter could have been con-sidered without challenge to the S-3 rule, that disagreement is surely beside the point.
The Appeal Board acted well within its discretion in determining to resolve the radon matter on the basis of the best avail-able current information, and that decision cannot be regarded as prejudicing the interest of any party.
In view of the above discussion, demonstrating that Intervenors have not raised any important question of fact, law or policy and that the matters complained of are interlocutory in nature, Commission review of ALAB-480 (or ALAB-465) is unwarranted and the appeal should be denied.
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. IV.
RECUEST TO UITHDRAM CPERATIt:G LICENSE Intervenors request that the operating license for TMI-2 be withdrawn, arguing that its grant was based on incorrect information (regardina Rn-222) and, therefore, on an incomplete environmental review with an erroneous cost-benefit analysis.
Intervenors have previously sought, unsuccessfully, to stay the TI11-2 licensing action on essentially the.same grounds which are advanced in the instant appeal, before the Appeal Board, Ccmmission and the U.S.
Court of Appeals, ALAB-456, 7 NRC 63 (1978), CLI-78-3, 7 NRC (March 2, 1978), Keoford v. NRC (No. 78-1160, unpublished Order, March 8, 1978).
Nothing presented by Intervenors in this appeal suggests that any different result is appropriate.
Moreover, without engaging in an argument over Intervenors characteri-zation of tne facts, a matter properly left to the licensing process as provided by ALAB-480, the availability of new or different information after completion of an environmental review does not in and of itself require suspension or revocation of a licensing action which, when taken, was based on a legally sufficient record.- See Keoford v. NRC, No.78-1160, unpublished Order, March 8, 1978, slip op. at 2-3.
Cf.
Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir.,1976), rev'd sub. nom, Vermont Yankee Nuclear Power Coro. v. NRDC, U.S.
, 55 L.Ed.2d 460, 98 S.Ct.1197 (1978).
In the instant proceeding, the record and Initial Decision based thereon properly relied on the value for Rn-222 contained in Table S-3.
That subsequent events have shown that numcer to be incorrect does not cer se require reversal of the licensing action 4G C43 and Intervenors have not provided any substantive basis for taking such drastic action.
V.
CCNCLUSIGN Intervenors have ' ailed to comply with either the procedural or substantive requirements of 10 CFR 5 2.736.
Their appeal consists of needlessly vitriolic and argumentative exposition of factual matters more properly presented to the Appeal Board in accordance with the procedures of ALAS-480 and, thus, is interlocuto y in nature at this time.
Insofar as its substance is concerned, Intervenors' appeal fails to establish any important question of fact, law or policy warranting consideration by the Commission.
In addition, they have failed to pro-vide any valid basis for suspending or revoking the TMI-2 operating license.
Accordingly, the NRC Staff respec+ fully urges that Intervenors' appeal be denied.
Respectfully submitted,
, IdM w
Lawrence J. Chandler Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of June, 1978 4L Teid
U lITED STATES OF nt' ERICA NUCLEAR REGULATORY CCM?lISSIC; BEFORE THE CC:'"ISSION In the Matter of
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METROPCLITAN EDISON COMPANY,
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Docket No. 50-220
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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 "NRC STAFF'S ANSWER TO INTERVENORS' APPEAL FROM ALAS-480 AND MOTICN TO WITHDRAW OPERATI?;G LICENSE" in the above-captioned proceeding have been served on the following by deoosit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 2Sth day of June,1978:
Alan S. Rosenthal, Esq., Chairman
- Mr. Gustave A. Linenberger*
Atomic Safety and Licensing Appeal Atomic Safety and Licensing Soard Panel U.S. th clear Regulatory Corrmission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20565
- Gear, F. Trowbridge, Esq.
Dr. W. Reed Johnson, Member
- Shaw,.'ittman, Potts & Trowbridge Atomic Safety and Licensing Anpeal 1800 M Street, N.W.
Panel Washington, DC 20555 U.S. Nuclear R!gulatory Ccmmission Washington, DC 20555 Dr. Ernest 0. Salo Professor, Fisheries Research Jerome E. Sharfman, Esq., Member
- Institute, WH-10 Atomic Safety and Licensing Appeal College of Fisheries Panel University of Washington U.S. Nuclear Regulatory Commission Seattle, Washington 98195 Washington, DC 20555 Dr. Chauncey R. Kepford Edward Luton, Esq., Chairman
- Citizens for a Safe Environment Atomic Safety and Licensing Baard 433 Orlando Avenue U.S. Nuclear Regulatory Comission State College, Pennsylvania 16801 Washington, DC 20555 James L. Kelly, Acting General Samuel J. Chilk (12)*
Counsel
- Secretary of the Commission Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, D.C.
20555
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Karin W. Carter, Assistant Atcmic Safety and Licensing A;ceal Attorney General Panel (5)"
Office of Enforcement U.S. Nuclear Regulatory Ccrmission Department of Environmental Washington, CC 20555 Resources 709 Health and Welfare Building 00cketing and Service Section (3)
Harrisburg, Pennsylvania 17120 Office of the Secretary U.S. Nuclear Regulatory Ccmmission Ms. Judith H. Johnsrud Washington, CC 20555 433 Orlando Avcnue State College, Pennsylvania 16801 Atcmic Safety and Licensing Board Panel
- U.S. Nuclear Regulatory Ccamissio Washington, CC 20555
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Lawrence J. Chandler Counsel for NRC Staff e
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