ML19254F221

Memorandum in Opposition to Dismissal of Commonwealth of Ma Emergency Planning Contention Addressed During 790910 Conference Telcon.Urges ASLB Defer Next Hearings Until New Regulations Issued.Certificate of Svc Encl

ML19254F221
Person / Time
Site:	05000471
Issue date:	09/25/1979
From:	Bellotti F, Wright F MASSACHUSETTS, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7911070389
Download: ML19254F221 (12)

Text

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1. UNITED STATES OF* AMERICA p ,

72 - 4' # NUCLEAR REGULATORY COMMISSION 1 & Y ',Q) 5 4glV mEFORE THE ATOMIC SAFETY AND LICENSING EOARJ s 34w In the Matter of )

)

BOSTON EDISON COMPANY, et al. )

) Docket No. S0-471 (Pilgrim Nuclear Generating Station, )

Unit 2) )

1 MEMORANDUM OF THE COMMONEALTH OF MASSACHUSETTS IN OPPOSITION TO DISMISSAL OF ITS CONTENTION ON EMERGENCY PLANNING In the course of a conference call on September 10, 1979 the parties were asked to brief the following question: in light of the consideration now being given by the NRC to the issue of emergency planning, should the Licensing Soard dismiss the Commonwealth's emergency planning contention as a matta.:

presently the subject of a generic rulemaking proceeding? For the folicwing reasons, the Commonwealth opposes dismissal of the contention, but does renew its request that the evidentiary hearings on emergency hearings not be reconvened until further guidance on emergency planning has been issued by the NRC, guidance which can reasonably be expected to be f0::hcoming in the next few months.

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Although a licensing board is not required to consider the details of a proposed emergency plan in reaching a decision on an application for a construction permit, it must at the very least determine whether surrounding popclation densities, transportation routes, land use and other unique site characteristics might combine to render any emergency plan ineffective. Southern California Edison Commanv, et al (San Onofre Nuclear Generating Station, Units 2 and 3) , ALA3-248,,8 AEC 957, 962-63 (1974); Consumers Power Commanv (Midland Plant Units 1 and 2) , ALAS-121, 6 AIC 331, 342-43 (1973); 10 CFR Part 50, Appendix E, Sections I-III. The issue, therefore, is one of emergency planning feasibility, and as such is a site-specific marter that must be resolved by censideration of the demographic, meteorological and topciogical peculiarities of the area surrouncing the proposed reactor. Emergency planning

. feasibility, in turn,is a necessary ccmponent of the larger -

issues of site suitability (see 10 CFR S100.10), reacec: safety (see 10 CIR 550.34 (a] [lC] and Appendix E to 10 CIR Part 50) and the NEPA alternative sites cost-benefit analysis (see Supplementary Information to the proposed amendmenc to Appendix E, 43 Fed. Reg. 37473, 74 (August 20, 1973), all of which must be resolved prior to the issuance of a construction permit. In short, if the feasibility issue is to be considered at all, it must be at scme time prict to the start of construction; to deal with it =t any time thereafter is both illogical and runs the considerable risk that the applicant's ongoing investment in the pecjecc will impermissibly affect the decision-making prcCess.

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Based on these considerations, the Staff supported and this Board granted the Commonwealth's motion that the feasibility of emergency planning for the Pilgrim 2 reactor site be tak:n up during the construction permit phase of these proceedings. Because the accident at Three Mile Island has obliged the NRC to reassess its policies with respect to emergency planning, however, the question has now arisen whether the Commonwealth's contentions should not be dismissed under those cases holding that licensing boards should not accept contentions which are the subject of pending or imminent generic rulemaking proceedings. See Potomac Electric Power Comcany (Douglas Point Nuclear Generacing Stations, Units 1 and 2), ALAB-218, 8 AIC 79, 84-85 (1974); Lonc Island Lichtine Comcanv (Shoreham Nuclear Power S tation) , ALA3-99, 6 AIC 53, 55-56 (1973) ; Vermont Yankee Nuclear Power Corcoration (Vermont Yankee Nuclear Pcwer Station) , ALA3-179, 7 AIC 15 9 , 16 3 -6 4

-(1974). In each of these proceedings, intervenors sought to litigate the enviror. mental consequences of the uranium fuel cycle at a time when the Ccmmission itself was considering the matter generically, and in each instance the Appeal Board held that the pending rulemaking action at least tempcrarily precluded consideration of the issue by individual licensing boards.

In order to determine the impact of the fuel cycle cases on the instant proceedings, it is necessary to understand the factual context in whi'ch they arose. Between November of 1972

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and April of 1974, the NRC conducted a detailed study of the production, transportation, consumption and disposal of uranium fuel, and ultimately promulgated a definitive regulation that quantified the environmental effects of tne entire fuel cycle by providing numerical values that could then be factored into to the cost-benefit analysis that must be performed under NEPA for each individual proposed reactor. Generic rulemaking in this instance was particularly appropriate, for as was noted in Ecolccv Action v. United States Atemic Enerev Commission, 492 F.2d 998, 1002 (2nd Cir. 1974) , "it would be absurd that the issue of the environmental effect of uranium mining in Wyoming should have to be separately considered on every application to construct nuclear plants from Maine to California." A similar rational:was provided by the Appeal Board in Deuclas Point:

The proper evaluation of the environmental consequences of the uranium fuel cycle, initially raised in the Vermon: Yankee adjudication, was not a matter capable of simple resolution. It necessarily encompassed censiderations far transcending the operation of a single nuclear power generator in New England. It resciution required knowledgeable examination into industry-wide and nation-wide proclems and pclicies relating to mining, processing, storing, transporting and ultimately disposing of uranium fuel. Indeed, as noted in Vermon: Yankee, full information respecting seme of

ncse questions had not at that time been developed, much less explored. 4 AIC at 938. The uranium fuel cycle issue was thus particularly appropriate for resolution by the Ccemission in a rulemaking preceeding. In context, our observations in Ver=cnt Yankee about the availabiliry of that procedure (e.g., 4 AEC at 937) must be understcod as anticipative, although notice that the Commission was about to embark on rulemaking to consider the environmental e'fects of the uranium fuel cycle was

,nc t announced fermally until a few =cnths thereafter. 37 F.R. 24131. Our censideration in l2 131

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adjudicatory proceedings of issues presently to be taken up by the Commission in rulemaking would be, to say the least, a wasteful duplication of effort.

Id. at 85.

There are a number of aspectg of the fuel cycle cases that bear emphasis. First, as was noted by the Appeal Board in Shoreham, the NRC's pending rulemaking proceeding precluded consideration of the environmental effect of the fuel cycle by individual licensing boards, but'only to the extent _that the issue sought to be raised was 'not unique to any given reactor." Id. at 55. Accordingly, individual licensing proceedings could still be expected to reach such

" site-dependent" issues as the transportation of fuel elements to the plant itself and the removal of i :idated fuel f:cm the plant to a reprocessing facility. Id. at 54, 56. See also Vermont Yankee, suora at 164, fn. 12.

Second, the Ccmmission's comprehensive rulemaking proceeding involved what amounts to final findings of f act with respect to all phases of the uranium fuel cycle as it takes place throughout the natica and throughout the industry. It was not a matter of issuing guidelines or standards that were then to be applied by lic_ensing boards in relitigating the macter; the fuel cycle itself was considered on the merits, and a quantative and irrebuttable judgment made that then became applicable to all individual proceedings. Because the nation-wide character of this issue lent itself to generic rulemaking, in other words, individual licensing boards were relieved of = #=ct-finding respcnsibility with respect to it.

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Finally, although the fuel cycle contentions in Douclas Point were initially excluded because of the NRC's pending generic consideration of the issue, its rulemaking process was concluded well before issuance of the Douglas Point construc-tion permit, so that the intervenors were then free to once again raise their fuel cycle contentions, at least to the extent that certain purely local aspects of the issue were not foreclosed by the NRC's new regulation. The Appeal Board in Douclas Point, therefore, had no occasion to consider whether pending rulemaking could operate to foreciose consideration of an issue altogether, or to foreclose it at that stage of the proceedings where it appropriately belonged. Indeed, in the face of a interpretation of the new regulation by the applicant and the staff which would have prevented its application in the ongoing Douglas Point licensing proceeding, the Board insisted on a contrary interpretation that would avoid leaving "a gap through which some pending applications might pass free of all consideration of the environmental effects of the uranium fuel cycle." Id. at 37.

In contrast to the fuel cycle cases, the issue of emergency planning currently before this Board is generic only in the sense that it can be reasonably anticipated hat the NRC will socn issue note elaborate guidelines and standards to aid individt'?.1 licensing boards in reaching the required site-specific determination as to whether effective emergency neasures can be :aken.to protect the public in the area 19'2 133 O m MW h h

.. -f-surrounding a proposed reactor. In short, there is nothing currently being contemplated by the NRC that will relieve this Board of its responsibility under existing regulations to make findings of fact on the emergency planning feasibility issue, and in accordance with San Onofre and Midland that determination must be made prior to issuance of the construction permit.

The issue, therefore, is not one of preclusion but one of timing: at some point prior to the close of the record on 3ECo's application for a construction permit, this Board must consider the question of' emergency planning feasibility, as required by 10 CFR 550.34 (a) (10) , Appendix E to 10 CFR Part 50 the " interim guifance" provided by the propcsed amendment to Appendix I and 10 CFR 5100.10. If this issue is reached after the NRC issues its new guidelines, then all parties and the Board will have the benefit of the work done by the Staff in reassessing NRC emergency planning policy in the lignt of Three Mile Irland; if it is reached before the NRC acts, then we must rely en present guidance, as well as whatever can be gleaned frcm the engcing Staff effort.

The Co=nenwealth welecmes the Staff's motion that it be granted additional time to carry out further studies in the Plymouth area, for it was this lack of data and thoroughgoing analysis that originally prompted the Commonwealth's emergency planning contention. In addition to citing its need for more site-specific inf ormation, hcwever, the S taf f in its action i? 2 134

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also noted that the NRC has a number of emergency planning projects in various stages of completion, and the Ccamonwealth continues to urge this Board not to rush into hearings without first determining what further guidance might be forthecming from the NRC in the near future.

Some of the deliberations now going on within the NRC cannot reasonably be expected to be concluded within the next year, and we would not progese to wait that long. On the other hand, certain decisions, reports and new regulations are due to be issued shortly, and they can be expected to provide this Board and the parties wi'th further insights into the issue of emergency planning. In making its decision when to commence the hearings, this Board should be mindful of the folicwing:

1. In June of 1979 the NRC's Task Force of Emergency Planning was established in respense to the accident at Three Mile Island. It submitted its final report en August 9, 1979, and its reccmmendations are currently under consideration by the Commission. See SECY-79-499.

2. Expedited rulemaking en emergency planning is currently in progress, with the final rule new expected to be published en January 15, 1980.

3. The report of the joint EPA /NRC Task Force on Emergency Planning, NUREG-0396, was submitted for Commission approval on July 25, 1979 and is currently under consideration. See SECY-79-461.

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4. Thereportofthe'S[tingPolicyTaskForce, NUREG-0625, has been issued and is presently under consideration by the Commission.

5. On October 25, 1979 the final report of the President's Commission on Three Mile Island is due, and emergency planning is one of the areas that it will be addressing.

Of particular interest to the Commonwealth are the new emergency planning regulations, due to be promulgated on January 15, 1980. Since the Staff has said that it will require seven weeks af ter its site visit to analyze the data it gathers, the delay necessitated by the staff's site visit will bring the earliest date for reconvening of the hearings quite close to January. Under these circumstances, and with a briefing schedule already in place for all other cutstanding issues, the Commonwealth urges this Board to defer the next round of hearings until af ter issuance of the new emergency planning regulations.

Respectfully submitted, FRANCIS X. 3ELLOTTI Attorney General r i s

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f s. f FRANCIS S. WRIGET ..

Assistant Attorney General Environmental Protection Division Public Protection Bureau One Ashbur:cn Place, 19th Flec:

3cston, Massachusetts 02108 (617) 727-2265 17"2 136

UNITED STATES OF AMERICA .

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NUCI2AR REGULATORY COMMISSION t

BEFORE THE ATOMIC SAFETY AND LICENSING SOARD

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In the Matter of )

) 8/ b BOS"'ON EDISON COMPANY et al. )'

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[- -5 (Pilgrim Nuclear Generating ) Docket No. 50-471 (5'

- 4b 0 Station, Unit 2) ) 4 6

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CERTIFICATE OF SERVICE I, FRANK S. WRIGHT,'ereby h certify that the foregoing

" Memorandum of the Ccmonwealth of Massachusetts in Opposition to Dismissal of the Contention en Emergency Planning" submitted by the Com=onwealth of Massachusetts, Intervenor, has been served en the folicwing by depositing copies thereof in the United States Mail, first class postage prepaid, this 25th day of Septerter, 1979:

ANDREW C. GCCDEOPE, ESQ. 3ARRY E. SMITE, ESQ.

Chairman, Atomic Safety and MARCIA E. MULEEY, ESQ.

Licensing Scard Office of the Executive 0.S. Nuclear Regulatory Cc= mission Legal Director Washington, D.C. U.S. Nuclear Regulatory Cc==ission Washington, D.C. 20555 OR. A. DIXON CAILIEAN Union Carbide Corpora:ica ATOMIC SAFE"'Y AND LICENSING

?.O. Scx Y SOARD PANEL Ca% Ridge, Tennessee 37830 U.S. Nuclear Regula: Cry Cc==ission Washington, D.C. 20555 IR. RICEARD F. CCLE Accmic Safety and Licensing Scard WILLIMi S . A33CTT, ESQ.

C.S. Nuclear Regulatory Commission 50 Congress Street, Suite 925 Washington, D.C. 20555 Scsten, Massachusetts 02109 ATOMIC SAFETY AND LICENSING OFFICE OF IEE SECRETARY .

APPEAL SCARD Occketing and Serzice Section U.S. Nuclear Regulatorf Comissicn U.S. Nuclear Regulatc y Cc==ission Washington, D.C. 20555 Washington, D.C. 20555 MR. DANI.E F. FORD MR. AND MRS. ALAN R. CLIETCN

'208 Massachusetts Avenue

. 22 Mackin csh Stree Ca.rtridge , Massachusetis 02133 Franklin, Massachusetts 32038

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J DALE G. STOODLEY, ESQ.

HENRY HERRMANN, ESQ.

151 Tremont Street Boston Edison Company Boston, .%ssachusetts 02111 800 Boylston Street Boston, Massachusetts 02199 CHIEF LIBRARIAN Plymouth Public Library GEORGE H. LEWALD, ESQ.

North Street Ropes and Gray Plymouth, Massachusetts 02360 225 Franklin Street Boston, Massachusetts 02110 EDWARD L. SELGRADE Deputy Director Governor's Office of Energy Resources '

73 Trement Street Soston, Massachusetts 02108

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