ML19220B222
| ML19220B222 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/11/1977 |
| From: | Fess G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7904250519 | |
| Download: ML19220B222 (10) | |
Text
/VML GGq 03/11/77 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL DOARD 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)
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NRC STAFF'S RESPONSE TO PETITIONERS' NOTICE OF APPEAL FROM \\!EMORANDUM AND ORDER OF THE ATOMIC SAFETY AND LICENSING BO/1RD DATED FEBRUARY 14. 1977 On March 1,1977, the Environmental Coalition on Nuclear Power (" Petitioners")
noticed their appeal in this proceeding, pursuant to 10 CFR 2.714a, from the February 14, 1977 Memorandurr. and Order of the presiding Atomic Safety and r
Licensing Board (' Licensing Board") regarciing certain conten' ions raised in their Petition for Intervention (" Petition") filed on August 16, 1976. Petitioners contend that, contrary to the Memorandum and Order, all of their contentions should be accepted as issues in controversy. The NRC Staff (" Staff") opposes the appeal and urges that the Atomic Safety and Licensing Appeal Board (" Appeal Board") affirm that portion of the Licensing Board's Memorandum and Order which rejected Petitioner's contentions.
I. INTRODUCTION The relevant background with respect to this procceding has pres icusly been outlined in the Staff's Answer to Petition for Intervention Filed by the Environmental 74 OfR g;
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( Coalition on Nuclear Power (" Answer"), dated September 20, 1976. The Staff's Answer neted that, although Petitioners had established their interest, the requisite good cause for late filing had not been shown, except with respect to contention dealing with the Applicanta' rate structurc and its effect on one energy conservation. The Staff's posit:.o that good cause had been shown for a late filing of that contention was subsequently reversed after Petitioners elaborated on their position during oral argument on the question of good cause at the January 28, 1977 prehearing conference. (Prehearing Conference Transcript at pages76-113). Following the prehearing conference, the Licens-ing Board issued a Memorandum and Order on February 14, 1977, admitting Petitioners as parties to the proceeding with respect to the one ' rate structure -
energy conservation" contention. The Applicants noticed their appeal from that ruling on February 24, 1977. The Staff's response was filed on March 3, 1977.
II. ARGUMENT lt should first be noted that Petitioners' appeal is an interlocutor'f appeal pro-hibited by S 2.730(f) of the Commission's regulations. An exception to that prohibition is found in 10 CFR S 2.714a. However, Petitioners do not fall within that exception since an order of a' licensing board which, inter alia, grants intervention but rejects certain contentions advanced by a petitioner is not appealable. Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-2S6, 2 IIRC 213 (August 26, 1975)
In addition,
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the appeal is well outside the five days prescribed by 10 CFR S 2.714a(a) for
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2 the filing of such appeals.1 However, the Applicants correctly note / that should the Appeal Board decide in Applicants' favor with respect to their February 24, 1977 appeal (urging that Petitioners' intervention in the pro-cceding below be vzholly denied), then an appeal by Petitioners would be permissible pursuant to 10 CFR $ 2.714a(b). Under these circumstances, we agree with Applicants that the Appeal Board should accept for decision on its merits Petitioners' Notice of Appeal and Brief in Support of Appeal ("Brief")
rather than requiring the filing of new appeal papers. The Staff believes that the best interests of all the parties will be served, and that the commence-3/
ment of the hearing will avoid being unnecessarily delayed by this procedure.-
1 A.
Contentions Not Briefed on Aeneal Tr their Notice of Appeal, Petitioners maintain that "all the contentions should be allowed'. >iowever, only Contentions 4, 6 and 8 are mentioned in Petitioners' l
11 The Licensing Board's Memorandum and Order, although dated February 14, 1977, was docketed by the Office of the Secretary on February 16, 1977. Petitioners' Notice of Appeal, although dated February 28, 1977, was served through the mail on March 1, 1977.
Applicants' Brief in Opposition to Petitioner's Notice of Appeal, dated March 4,1977, at page 2.
1/ The Licensing Board has indicated that it will commence the hearing the first part of April 1977. (Prehearing Conference Transcript at page 153).
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I t Brief. The Staff believes the Appeal Board should decline consideration of those contentions not briefed on appeal. See Commonwealth Edison Comoany (Zion f
Station, Units 1 and 2), ALAB-226, 8 AEC 381, 3S2 (September 5,1974); Long Island Lichtinc Co. (Shoreham Nuclear Power Station). ALAB-156, 6 AEC 831, 832 (October 26, 1973). Should the Appeal Board elect to consider all the con-tentions, however, the Staff relics on the argument presented in its September 20, 1976 Answer to Petition for Intervention with respect to those contentions not briefed on appeal.
B.
Good Cause for Late Filing Petitioners' intervention petition in this proceeding was filed more than two years after the filing deadline set by the Notice of Opportunity for Hearing.
Thus,10 CFR S 2.714(a) provides the standard by which the Petition must be judged. That section provides that an untimely intervention petition "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 As justification for the lateness of their Petition, Petitioners rely on recent decis-4/
ions of the United States Court of Appeals for the District of Columbia Circuit,-
(See, Petition for referred to here as the NRDC and Aeschliman decisions.
d/ Natural Resources Defense Council v NRC, F.2d
, 9 ERC 1149 (D.C. Cir., filed July 21, 1976) and Aeschliman v. NRC, Nos.
73-1776 and 73-1867 (D.C. Cir., filed July 21, 1976.)
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.. Intervention at pages 1 and 2: January 28, 1977 Prehearing Conference Trans-The cript at pages 76-83; Petitioners' Brief in Support of Appeal at page 1.).
Licensing Board correctly concluded that there is nothing in either of those s/
recent decisions which provides a justification for Contentions 4 and 6."
With respect to Contention 4, Petitioners have elaborated on their allegation that Table S-3 has inadequatel'f considered uranium supply. (Brief at 3),
But the fact remains that neither NRDC nor Aeschliman found any inadequacy in the Commission's survey, summari:cd in Table S-3, regarding mining and milling of uranium ore.
Petitioners' Brief presents no new reasons why Contention 6 should be admitted t
to the proceeding. The Staff renews its observation that, as the contention is wirtten, it raises an issue of economic costs. However, it was environmental costs, not economic ones, which formed the basis of the NRDC and Aeschliman decisions and the Commission's August 13, 1976 Statement of Policy in response to those decisions.
Thus, the Staff maintains that those decisions do not pro-vide the requisite good cause to raise at this late date the issues set forth in Contention 6 M Contention 4 deals with the price and supply of " yellow cake"; Con-tention 6 with the economic costs involved in solidification and storace of radioactive wastes; and Contention S is a requent that the construction permit (CP) be rescinded and construction halted.
M 41 F.R, 34707 (August 16, 1976),
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-6 Similarly, Petitioners have pres.cnted ro new argument :.) support Contention 8 that the CP be rescinded and construction halted. The Staff agrees with the Licensing Board that the Comi..ission's Movember 5,1976 Memorandum and Order is dispositive of this contention. (February 14, 1977 Memorandum and Order at pages 3 and 4).
C.
New Issues Not Raised Below In addition to Contentions 4, 6 and 8 referred to in their Brief, Petitioners have also raised two new issues not presented in their Petition or raised at any other The first appears on page 3 of their Brief and alleges that Table S-3 time.
assigns a value to the use of fossil fuel during enrichment which does not reflect the " irretrievable thermodynamic losses incurred in generating the electricity' The second appears on page 4 and alleges that the Staff has not adequately con-sidered " decommissioning" in its NEPA review. Again, the Staff believes that consistent with prior Appeal Board decisions, these issues, not having been Nuclear presented below, should not be heard for the first time on appeal.
Fuel Services. Inc., et al. (West Valley Reprocessing Plant), ALAB-263, 1 NRCI 208, 213 (March 28,1975); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 339 (May 18,1973). The Staff urges that the appeal be dismissed with respect to these issues.
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D.
Reauest for Financial Assistance On November 12, Finally, Petitionecs have requested financial assistance.
1976, the Commission issued a Statement of Considerations Ter:ninating Rule-making with respect to financial assistance to participants in Commission pro-ccedings, in which it determined that it would not,. as a general proposition, provide financial assistance to intervenors in any of its proceedings without That determination precludes the furnishing of such Congressional action.
Detroit Edison Comoany (Greenwood Energy assistance at public expense.
([ enter, Units 2 and 3), ALAB-376, Dkt. Nos. 50-452 and 50-453, slip op. at p.3 (February 22, 1977),
III. CONCLUSION For the reasons discussed above, the Staff urges that:
(1)
Those contentions not briefed on appeal be denied; (2)
The Licensing Board's ruling with respect to Contentions 4, 6 and 8 be affirmed; (3)
Those contentions raised for the first time on appeal be denied; and 1/
41 F.R. 50829 (November 18, 1976).
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(4)
Petitioners' request for financial assistance be denied.
Respectfully submitted, YO'<2 2 Y v k.&
Gregory Fess Counsel for NRC Str.ff Dated at Bethesda, Maryland this 11th day of March,1977 "g t} ~ ~ (
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TiiE ATOMIC S sFETY AND LICENS?NG APPEAL BOARD 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)
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CERTIFICATE OF SERVICE I hereby certify that cooies of "NRC STAFF'S RESPONSE TO PETITIONERS' NOTICE OF APPEAL FROM NEMORANDUM AND ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD DATED FEBRUARY 14, 1977" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or air mail, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system this lith day of March, 1977:
Alan S. Rosenthal, Esq., Chairman
- Mr. Gustave A. Linenberger*
Atomic Safets and Licensing Appeal Atomic Safety and Licensing Board U.S. Nuclee r Regulatory Commission Panel U.S. Nuclear Regulatory Commission Washingtor., D. C. 20555 Washington, D. C. 20555 George F. Trowbridge, Esq.
Dr. W. Reed Johnson, Member
- Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing Appeal 1800 M Street, N. W.
Panel Washington, D. C. 20036 U.S. Nuclear Regulator,f Commis sion Washington, D. C.
20555 Dr. Ernest O. Salo Professor, Fisheries 13esearch 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, D. C.
20555 Mr. Chauncey R. Kepford Edward Luton, Esq., Chairman
- Citizens for a Safe Environment Atomic Safety and Licensing Board 2586 Broad Street U.S. Nuclear Regulatory Commission York, Pennsylvania 17404 Washington, D. C. 20555
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, I Karin W. Carter, Assistant Attoi ncy Atomic Safety and Licensing Appeal Panel
- General U.S. Nuclear Regulator f Commission Office of Enforcement Washington, D. C. 20555 Department of Environmental Resources Docketing and Service Section 709 IIcalth and Welfare Building Harrisburg, Pennsylvania 17120 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Ms. Judith H. Johnsrud 433 Orlar.do Avenue State College, Pennsylvania 16801 Atomic Safety and Licensing Board Panel
- U.S. Nuclear Regulatory Commission Washi: gton, D. C. 20555 9M fvd W0 Gregory)Fes s '
Counsel for NRC Staff 74 C71
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