ML19220A527
| ML19220A527 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/24/1977 |
| From: | Trowbridge G SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| References | |
| NUDOCS 7904230045 | |
| Download: ML19220A527 (9) | |
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February 24, 1977 UNITED STATES OF AMERICA 1;UCLEAR REGULn RY CO:CIISSIO:;
Before the Atcmic Safet*f and Li.encinc Arteal ECard In the Matter of
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METROPOLITAN EDISC:7 CCMPA:iY,
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JERSEY CE:: TRAL POWER & LIGliT CCMPANY,
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and
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Docket No. 50-320 PE:!NSYL7A:!IA ELECTRIC CO:!PANY
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(Three :lile Island Nuclear Station,
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Unit 2)
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APPLICA: TS ' BRIEF I:: SUPPORT OF APPEAL Introduction 1.
The proceeding before the Atomic Safety and Licensing Board (Licensing Board) is a ccabined proceeding to consider the issuance of an operating license for Three Mile Island Nuclear Station, Unit 2 (TMI#2) and to consider pursuant to Section C of Appendix D of Part 50 whether the conctruction permit previously issued for TMI#2 should be continued, modified, terminated or conditioned to protect environmental values.
Notice of opportunity to request a public hearing was issued by the Commission on May 28, 1974, setting June 27, 1974, as the deadline for filing of petitions to intervene.
Timely petitions to intervene were filed by the Citizens Committee for a Safe Environment and the York Committee for a Safe Environment.
These petitions were unopposed and the 790423COff
petitions to intervene have been granted.
The Licensing Board has scheduled
- an evidentiary hearing to begin April 4, 1977, to consider contentions allcwed by the Licensing Board pursaant to stipulation of all of the carties.
2.
On August 16, 1976, more than two years after the deadline for petitions to intervene, the Environmental Coalition on Nuclear Power (Coalition) filed with the Secretary of the Commi ssion fourteen essentially identical Petitions for Intervention in fourteen separate nuclear power plant licensing proceedings.
One of these petitions to intervene related to T:II#2 and was referred by the Office of Secretary to the Licensing Board as a late petition to intervene in this pro-ceeding.
3.
The Coalition petition sought to introduce seven new contentions (numbered 2 through 8 in the petition) and relied exclusively on the Court of Appeals decisions in NRDC v.
NRC and Aeschliman v.
MRC as a basis for the retition.
No other good cause for the late petition was advanced by the Coalition either in its petition or at the prehearing conference held on January 28, 1977, to consider the petition.
4.
The Licensing Paard dismissed contentions numbered 2,
3, 4,
6 and 7 on th2 ground that they did not raise issues
- Transcript of prehearing conference on January 28, 1977 (hereinafter Transcript or Tr.) at p.
153.
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that are nortinent for consideration as a result of the ::RDC or Aeschliman decisicns.
Applicants submit that the Board's action in dismissing these contentions was overwhelmingly supported by the record of the January 28 prehearing conference.
Concentions 2 and 3 bear no discernable relationship to either decision.
Contentions 4, 6 and 7 deal primarily with the dollar costs rather than environmental impacts of the fuel cycle.
To the extent they touch upon the latter, they deal with environ-mental impacts of portions of the fuel cycle which were left undisturbed by the Court of Appeals decisions. (Tr.76-108, 113-116).
5.
The Licensing Board construed contention numbered 8 as contending that construction of TMI#2 should be suspended pending resolution of the reprocessing and waste disposal issues raised by the NRDC decision.
Citing the Commission's November 5, 1976 Memorandum and Order, the Licensing Board denied the petition to' interver an fuel cycle grounds, but without prejudice to the Coalitica's right to refile this cottention within a reasonable time follcwing the adoption of an interim fuel cycle rule by the Commission.
Applicants take no e<ception to the Licensing Board's disposition of contention numbcred 8.
6.
Contention 5, which was allowed by the Board and which is the basis on which the Coalition's petition to intervene was granted, reads as follows:
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"The petitioners contend that the rate structure of the Applicant is a promotional rate structure designed to increase the consumption of electricity by offering declining rates for increased consumption.
Such a rate structure minimizes the possibility and practicality of worthwhile energy conservation efforts.
Petitioners contend that a flat rate structure -- one price for all levels of consumption for all customers -- or a declining block rate structure would make conservation a viable and practicable alternative to Three Mile Island, Unit II."
The Licensing Board found that there was " substantial good cause" for the late filing of this contention.
The factors cited by the Licensing Board in support of its finding were that- (1) the Aeschliman decision " holds that the possibility of energy con-servation must be considered by the Commircion as an alternative to the construction of a nuclear plant,"
4 tioner's conten-s tien numbered 5 raised the issue of conservatman in a particular manner, and (3) energy ccnservation as an alternative to the proposed plant was not considered in the Final Environmental Statement covering both TMI#1 and TMI!2 in December, 1972, or in the Draft Suppl
- o the Final Environmental Statement covering TMIS2 in July, 1976, which were the only environmental statcments G'd 224
- s-that had been published by the Staff at the time the Coalition petition was filed.'
Argument 6.
.3 fundamental error in the Licensing Board's decision is its determination that Aeschliman scmehow excuses the Coalition for waiting more than two years to raise the issue of energy conservation through changes in rate structure.
Aeschliman did not suddenly open up the issue of energy conservation for con-sideration in NP.C licensing proceedings.
It decided only the narrow question of whether intervenors needed to meet some reshhold test in raising the issue.
Energy conservation has been a frequently allowed issue in a large number of licensing proceedings, and the propriety of considering changes in rate structure as a conservation measure.was specifically blessed by the Commission in 1973.
(Niagara Mohawk Power Corp. (Nine Mile Point, Unit No. 2) CLI-73-26, 6 AEC 995 (November 6, 1973)).
7.
Further, as evidenced by its own actions, the Coalition was aware as early as 1972 of the opporturity to raise the issue of energy conservation through changes in rate structure.
The Coalition intervened in the operating license proceeding for TMI!1 by a petition dated August 7, 1972.
That petition included
- Energy conservation measures, including changes in rate structure were, however, discussed by the Scaff in the Final Supplement to the Final Environmental Statement issued in December, 1976.
See Section 8.3.2.
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f a contention that Applicant's rate structure fostered a wasteful use of electricity.
(Tr. 96).
There was no need for the Coalition to wait four more years to raise the same issue with regard to TMI#2.
8.
It is possible to imply from the Licensing Board's decision that the failure of the Staff t4 treat the subject of energy conservation eithe-the Final En"ironmental Statement covering both TMI#
ona TMf' or
'a t"e raft Supplement thereto for THI#2 somehow contri'.
- the Licensing loard's finding of good cause.
The sPert iswec '., that this caission was apparent to the Coalitic. at tne t1=e originally set by the Commission for petitions to interve..e in this proceeding.
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that time the Final Environment &l Statement for TMI#1 and TMI#2 had been available for a year and a half and the Coalition was familiar with the document through its intervention in the TMIil operating license proceeding.
Again there is no reason for the Coalition to wait more than two years to challenge the omission.
Additionally, it is unrealistic in the circumstances of this case to find any nexus between the content of the TMI!2 environ-mental statements and the decision by the Coalition to file its petition to intervene.
The Coalition's petition in the TMI#2 proceeding was one of fourteen essentially identical petitions involving fourteen separate nuclear units.
The Coalition's rate 65-226
structure contention cannot reasonably be attributed to the stage of develcpment of the Staff's environmental statement in any single proceeding.
9.
The Licensing Ecard confined its decision to a finding of good cause without addressing the other factors enumerated in Section 2.714 of the Rules of Practice.
These factors were, however, discussed by all of the parties at the January 28 prehearing conference (Tr. 119-135).
Considering the lateness of the petition to intervene and the heavy burden which the Coalition has in the absence of good cause to justify its intervention,* Applicant submits that a single factor should he dispositive.
The Coalition should not be allowed to enlarge the issues in the proceeding to ncompass the highly complicated issue of proper rate structure design without a showing (which the Coalition has not made) that it can bring to the proceeding the expertise necessary to assist in developing a sound record.
Request for Excedited Decision 10.
Applicants respectfully request the Atomic Safety and Licensing Appeal Board to expedite its decision on this appeal.
Applicants make this request mindful that the Licensing Board has scheduled the evidentiary hearing to begin on April 4,
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CLI-75-4, 1 NRC 273, 275 (April 17, 1975).
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that very substantial preparations will be required on the art of Appiicants if the rate structure conrention remains in the proceeding.
In the interest of expediting this Appeal, Applicants have arranged for hand-delivery of the Notice of Appeal and accompanying Brief to the Coalition and to all other parties to the proceedings not later than Friday, February 25, 1977.
Under the Commission's Rules of Practice (Section 2. 714a (a) ),
any responding briefs by the Coalition or other parties would be due not later than Friday, March 4, 1977.
When service has been completed on all parties, a Certificate of Service will be filed by Applicants evidencing service on all persons named in the attached Service List.
Respectfully submitted, SHAW, PITTMAN, POTTS
& TROWBRIDGE
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by
/h;y Ay) s'm,/./
'y e6rge F4 Trbwbhcge
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Dated:
February 24, 1977 G5 228
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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of
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METROPOLITAN EDISON COMPA'iY,
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et al.
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Docket No. 50-320
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(Three Mile Island Nu_ clear
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Generating Station, Unit 2)
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SERVICE LIST Secretary, Atomic Safety and Henry J.
McGurren, Esq.
Licensing Appeal Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Commission Director Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Edward Luton, Esq., Chairman Washington, D.C.
20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Cc= mission Mr. Chauncey R.
Kepford Washington, D.C.
20555 2586 Broad Street York, PA 17404 Mr. Gustave A.
Linenberger Atomic Safety and Licensing Board Atomic Safety and Licensing U.S.
Nuclear Regulatory Commission Board Panel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Dr. Ernest O.
Salo Washington, D.C.
20555 Profcssor, Fisheries Research Institute, WH-10 Karin W.
Carter, Assistant University of Washington Attorney General Seattle, W A.
98195 Office of Enforcement Department of Environmental Docketing and Service Section Resources Office of the Secretary 709 Health and Welfare Building U.S. Nuclear Regulstory Commission Harrisburg, PA 17120 Washington, D.C.
20555 65 229