ML19220C780
| ML19220C780 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Peach Bottom, Harris, Wolf Creek, Saint Lucie, Hope Creek, Seabrook, North Anna, Sterling, 05000484, Washington Public Power Supply System, Cherokee, Marble Hill, Hartsville, Phipps Bend, Crane  |
| Issue date: | 04/25/1979 |
| From: | Dufio M, Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 7905140332 | |
| Download: ML19220C780 (13) | |
Text
,
NRC PUBLIC DOCU.uENT ROOM UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION a
ATOMIC SAFETY AND LICENSING APPEAL BOARDS
- 9q[ {
Alan S.
Rosenthal, Chairman Dr. John H.
Buck j[
9 bg% ((v'j-Michael C. Farrar s b
- .0. e)
Richard S.
Salzman
,8 Dr. W.
Reed Johnson Jerome E.
Sharfman S:livCD Lon 3 4
)
In the Matters of
)
)
PHILADELPHIA ELECTRIC COMPANY et al..
) Docket Nos~. 50-277
)
50-278
-~
(Peach Bottom Atomic Power Station,
)
Units 2 and 3)
)
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METROPOLITAN EDISON COMPANY _e_t a_l.
) Docket Nos. 50-320
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(Three Mile Island Nuclear Station,
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Unit No. 2)
)
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VIRGINIA ELECTRIC AND POWER COMPANY
) Docket Nos. 50-338
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50-339 (North Anna Power Station, Units 1 and 2) )
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PUBLIC SERVICE ELECTRIC AND GAS CO.
) Docket Nos. 50-354
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50-355 (Hope Creek Generating Station,
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Units 1 and 2)
)
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FLORIDA POWER AND LIGHT COMPANY
) Docket No. 50-389
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(S t.
Lucie Plant, Unit No. 2)
)
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CAROLINA POWER AND LIGHT COMPANY
) Do ct Nos. 50-400
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50-401 (Shearen Harris Nuclear Power Plant,
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50-402 Units 1, 2, 3 and 4)
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50-403
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PUBLIC SERVICE COMPANY OF NEW
) Docket Nos. 50-443 HAMP S HI RE.e_t _al.
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50-444 (Seabrook Station, Units 1 and 2)
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106 30c;
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-*/ Every Appeal Panel Member is on one or more of the Boards hearing these proceedings; their collective designation is simply a convenience in issuing this join t order.
19051403 Y
2-KANSAS GAS AND ELECTRIC COMPANY AND
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Docket No. STN 50-482 KANSAS CITY POWER AND LIGHT COMPANY
)
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(Wolf Creek Generating Station, Unit 1)
)
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NORTHERN STATES POWER COMPANY
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Docket No. STN 50-484 (MINNESOTA) AND NORTHERN STATES
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POWER COMPANY (WISCONSIN)
)
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(Tyrone Energy Park, Unit No. 1)
)
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ROCHESTER GAS AND ELECTP
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Docket No. STN 50-485 CORPORATION _et _al.
)
)
(Sterling Power Project, Nuclear it ')
)
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DUKE POWER COMPANY
)
Docket Nos. STN 50-491
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STN 50-492 (Cherokee Nuclear Station, Units 1,2 & 3)
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STN 50-493
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THE TOLEDO EDISON COMPANY et al.
)
Docket Nos. 50-500
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50-501 (Davis-Besse Nuclear Power Station,
)
Units 2 and 3)
)
)
WASHINGTON PUBLIC POWER SUPPLY SYSTEM
)
Docket No. 50-513
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(WPPSS Nuclear Project No. 4)
)
)
TENNESSEE VALLEY AUTHORITY
)
Docket Nos. STN 50-510
)
STN 50-519 (Hartsville Nuclear Plant, Units lA,
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STN 50-520 2A, 1B and 23)
)
STN 50-521
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PUBLIC SERVICE COMPANY OF INDIANA, INC.
)
Docket Nos. STN 50-546
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STN 50-547 (Marble Hill Nuclear Generating Station,
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Units 1 and 2)
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TENNESSE VALLEY AUTHORITY
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Docket Nos. 50-553
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50-554 (Phipps Bend Nuclear Plant, Units 1 and 2) )
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MEMORANDUM AND ORDER April 25, 1979
}06 30b
( ALAB-5 4 0 )
M
, 1/
1.
For reasons previously explained,--
we must determine the consequences of radioactive radon gas releases attributable to the mining and milling of uranium fuel and factor the result into the NEPA cost-benefit analysis for the nuclear power facilities in-volved in the captioned proceedings.
To recapitulate briefly, we resolved against ordering the issue tried separately in each of the cases.
We also decided not to consolidate them into a single proceedin' for that purpose.
Instead, we attempted a middle course.
A record on the radon issue had 7:.lready been made before a licensing board in a contested proceeding involving the Perkins facility and a decision by the Perkins board was imminent.
We therefore directed incorporation of the Perkins record on radon into these cases and asked the parties for comments on the adequacy of that record and, when rendered, on the soundness of the Perkins decision. -~2/
In due course that decision was handed down. --3/
The Perkins board found that the radon exposure generated by the uranium mining and milling processes, when compared 7]7
_1/
See ALAB-480, 7 NRC 796, 799 (1978).
/
100 J
2/
Id. at 805-06.
_3/
Duke Power Co. (Perkins Station, Units 1, 2 and 3),
LBP-78-25, 8 NRC 87 (July 14, 1978).
. to the fluctuating background of naturally occurring radon, was so low as to be de minimis end ruled that significant health or environmental consequences could not fairly be attributed to it.
After we reviewed that decision and the conments we had elicited, certain intervenors were asked to ela. borate on their objections by setting forth (1) not only the respects in which they believe the radon release data and concen-tration levels in Perkins are inaccurate or other-wise deficient, but also the basis for their assertions and the potential significance of the deficiencies (i.e.,
the degree of impact that any corrections might have upon the Perkins figures) ; (2) whether, and if so why they believe a hearing is necessary on those topics or whether some other procedure for considering the matter is appropriate; and (3) what evidence, either
,critten or oral as the case may ce, they are prepared to offer.
_4/
We then called upon the applicants and the staff to respond, instructing them to " focus, inter alia, on whether a hearing is necessary or whether sone other-pro-cedure is appropriate" to-resolve any di sagreement. -~5/
We also invited "any party in any of the pending proceedings who disagrees with the [Perkins] Licensing
'Do OU' d
U
_4/
ALAB-509, 8 NRC 679, 683-84 (1978).
5/
Id. at 684.
. Board's approach" to discuss the validity of the Perkins rationale on the health effects of the radon emissions, instructing them to assume the correctness of the board's emission level determinations for the purposes of their 6/
discussion.
Our reason for this approach, we explained in ALAB-509, was that if the Perkins figures were correct and the da minimis rationale sound, there would be no further need to explore thic question.--7/
We thereby sought to learn what (if any) contentions remained to be heard in light of Perkins.
In response to ALAB-509, the Sterljaa and Tyrone intervenors jointly filed a number of generalized aLa twenty-six specific objections to the adequacy of the Perkins record; they also criticited the validity of the de minimis rationale.
The Three Mile Island, Peach Bottom and Hope Creek inte': /enors also challenged the soundness of the de minimis rationale and urged its rejection.
The applicants in eleven of the captioned cases ~~8/
_6/
Ibid. (emphasis in original).
--7/
Ibid.
106
,;u9 n
_8/; We received no responses from applicants in the North Anna, Shearon Harris, Wolf Creek and Davis -
Besse proceedings.
The SecbrFok intervenors pre-viously indicated that they were not going to participate in this phase of the case and the Seabrook applicant also has not responded to ALAB-509.
. and the staff replied to those responses.
In general, they supported the adequacy of the Perkins record on the radon issue and approved the employment of the de minimis rationale to decide the issue before us.
2.
Our review of the papers has satisfied us that, except as to a few matters which we address shortly, issue is properly joined on the radon question and it is ripe for disposition either at trial or, possibly, summarily under 10 C.F.R. 52.749. --9/Before This section of the Commission's Rules of Practice, 9/
as amended a year ago (13 Fed. Reg. 17798, April 26, 1978), provides:
SUMMARY
DISPOSITION ON PLEADINGS. 52.749.
Authority of presiding officer to dispose of certain issues on_the pleadingc.
(a)
Any party to a proceeding may, at least forty-five (45) days before the time fixed for the hearing, move, with or without sup-porting affidavits, for a decision by the presiding officer in that party's favor as to all or any part of the matters involved in the proceeding.
There shall be annexed to the motion a separate, short and concise statement of the material facts as to which the moving party contends that there is no genuine issue to be heard.
Any other party may serve an answer opposing the motion, with or without affidavits, within twenty (20) days after service of the motion.
There shall be annexed to such answer a separate, short.and concise statement of the material facts as to which it is contended that there exists a genuine issue to be heard.
A 1 0 6 7 ', 0 material facts set forth in the statement required to be served by the moving party will (FOOTNOTE CONTINUED ON NEXT PAGE)
. we turn to this, however, we again address the question of consolidation.
_9/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
(b)
Affidavits shall set forth such fact; as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
The pre-siding officer may permit affidavits to be supple-mented or apposed by depositions, answers to interrogatories or further affidavits.
When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of his answer; his answer by affidavits or as otherwise provided.n this section must set forth specific facts showing that there is a genuine issue of fact.
If no such answer is filed, the decision sought, if appropriate, shall be rendered.
(c)
Should it appear from the affidavits of a party opposing the motion that he cr lot, for reasons stated, present by affidavit facts essen-tial to justify his opposition, the presiding officer may refuse the application for summary decision or may order a continuance to permit affidavits to be obtained or make such other order as is appropriate and a determination to that effect shall be made a matter of record.
(d) The presiding officer shall render the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.
However, in any proceeding involving a construction permit for a production or utiliza-tion facility, the procedure described in this section may be used only for the determiration of specific subordinate issues and may not be used to determine the ultimate issue as to whether the permit shall be issued.
106 s.-
3 i
. (a) One reason underlying our decision against consolidating all these cases into one proceeding was the belief that some intervenors were less concerned with the radon question than others.
Were this so, the possibility existed that we might be able mo avoid some of the problems of scheduling and expense inherent in cases with more than two dozen litigants.
This has proven true.
Only Sterling, Tyrone, Three Mile Island 2, Peach Bottom and Hope Creek intervenors took up the laboring oar.
Intervenor groups in the remaining cases, either expressly or by tneir inaction, have allowed the course of our radon proceedings to be charted without them. ~-10/ Accordingly, we have decided to consolidate and hear first the cases where inter-venors are actively participating and to hold the re-11/
mainder in abeyance for the time being.~-
Our decisien to proceed in this fashion rests on a balancing of many considerations, of which three are perhaps palamount.
First, the radon issues are largely 10/
See ALAB-509, supra, 8 NFr at 683 fn.
9.
11/
We note that o'
'ctober 3, 1978, ' e S terling inter-venors sought t<
consolidate their case with che Tyrone, Wolf Creek, Marble Hill and Seabrook pro -
ceedings.
As appears from tnis nemorandum and order, their motion is in effect granted in part.
106 312
generic; that is, they apply equal'y in all cases.
Nothing in the location of a nuclear power reactor affects the quantity of radon emissions generated in the course of mining and milling uranium fuel for it.
(Whether the environmental cor. sequences of those uranium fuel cycle activities, when added to other environmental costs of an individual facility, tip the balance against it will, of course, have to be decided separately.)
Second, consolidating only five cases leaves us with a manageable number of litigants.
Only three law firms are involved on the applicants' side and all are located in Washington, D. C.--12/The intervenors are also jointly represented, at least in part. ~-13/
Finally, moving along in the actively contested cases first will help insure against our overlooking relevant considerations when we came to review the remaining proceedings on our own initiative.
(b)
With certain exceptions, the issues have been sufficiently crystalized in the responses to 12/
Messrs. Shaw, Pittman, Potts & Trowbridge represent applicants in Tyrone and Three Mile Island; LeBoeuf, Lamb, Leiby & MacRae those in Sterling; and Conner, Moore & Corber the Peach Bottom and Hope Creek applicants.
Richard Ihrig represents both the Tvrone anP0 6
- . 7;a 7
--13/
Mr.
Sterling intervenors for purposes of the radon issues; Dr. Kepford speaks for those in Three Mile Island and Peach Bottom.
Mr. Caccia is active only in Hoce Creek.
. ALAB-509 to v. arrant their acceptance as litigable contentions.
The exceptions involve three contentions jointly raised by the Sterling and Tyrone intervenors:
numbers 8 and 19, -~14/ which go to the cost of nuclear fuel, and number 25,~~15/
concerning radon released from the fly ash of coal.
The instant proceedings, however, are limited to considering the consequences of radon emitted in the course of mining and milling uranium for nuclaar fuel.
ALAB-480, supra, 7 NRC at 799.
Because neither uranium fuel costs nor radon emitted by other fuels are material to those considerations, those contentions must be rejected as beyond the matters now before us.
(c)
The next step would normally be fixing a time and place for the commencement of hearings. --16/
The responses of the staff and the Tyrone applicants to ALAB-509, however, raise the suggestion that issues respecting not only the level but also the consequences 14/
At pp. 11 and 15 of the joint Response of Ecology Action and Northern Thunder to ALAB-509, 15/
_I d. a t pp. 16-17.
16/
We dealt with the need for formal discovery in ALAB-509, 8 NRC at 683 fn, 6.
We have received no specific requests for discovery in the interim.
9 b
1 06 a*to
11 -
of the radon emissions may be amenable to summary dis-17/
position. --
We agree that it is appropriate first to eliminate the need for a hearing on any question not involving a genuine issue of material fact.
Accordingly, before fixing a trial date, we shall allow the parties thirty days for the filing of motions for summary disposition.--18/
In this regard, however, applicants other than those in Tyrone may also be contemplating filing such a motion.
We direct all applicants to do so jointly--19/
We are confident that counsel can formulate one set of pleadings and supporting documents.
Doing so will relieve the ir.t rvenors (and ourselves) of the burden of analyzing repetitious papers.--20/
In a similar vein, we encourage intervenors to respond jointly co any filing by applicants, and to act 17/
See fn, 8,
supra, and Cleveland Electric Illuminating Co. (Perry Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 752-57, and ALAB-449, 6 NRC 884 (1977).
18/
See 10 C.F.R. 22.711(a).
19/
See 10 C.F.R. 52.715a.
20/
See Tyrone Applicants' Memorandum in response to ALAB-509, pp. 10-69, and Sterling Applicants' Response to the,,same pp. 6-65, both dated April 9, 196V.
3c HOD d'
t l
l together if they move for summary disposition them-selves.
In recogn.ttion, however, that intervenors are not all represented by counsel and are geographically dispersed, we do not insist on joint filings on their part.
The staff r:ay file its own motion, join in the motions of either side, or otherwise respond as it deems apprcpriate.
Finally, we remind all parties that the Perkins record is now a part of each case and we have a copy in hand.
Consequertly, there is no need to reproduce that record in order to rely upon it as support for a motion for summary disposition.
Any party electing to do so, however, will be expected to give explicit references to the precise portions of the Perkins record it is relying upon.
[
For purposes of hearing and deciding the radon issues:
(1) the proceedings in Docket Nos. 50-277 and 278 (Peach Bottom) ; 50-320 (Three Mile Island);
106 3i6
- 50-354 and 355 (Hope Creek) ; STN 50-484 (Tyrone);
and STN 50-435 (Sterling) are c_onsolidated; (2) parties in the consolidated cases have until May 25, 1979, to file motions for summary disposition under Rule 2.749; if such motions are filed, opposing parties may have thirty days to respond; (3) proceedings in the remaining cases are held in abeyance pending our further order.
It is so ORDERED, FOR THE APPEAL BOARDS
/&2dbjv]
4s Margapat E.
Du Flo Secretary to the Appea2 Boards
,17
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)