ML19256E271
| ML19256E271 | |
| Person / Time | |
|---|---|
| Site: | Byron, Braidwood  |
| Issue date: | 09/13/1979 |
| From: | Bielawski A, Mark Miller, Murphy P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19256E266 | List: |
| References | |
| NUDOCS 7911020038 | |
| Download: ML19256E271 (10) | |
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY ANS LICENSING BOARD In the Matter of
)
Docket Nos.
Commonwealth Edison Company
)
50-454 (Braidwood Station, Units 1 and 2
)
50-455 APPLICANT'S SUPPLEMENTAL BRIEF ON CONTENTION _4 Commonwealth Edison Company
(" Applicant"), pur-suant to the Licensing Board's request, submits the fol-lowing supplemental brief regarding Intervenor's, Bob Neiner Farms, Inc., et al. ("Neiner Farms") Contention 4.
ARGUMENT Contention 4 states:
Intervenors contend that the proximity of the Illinois Central Railroad to the plant site and the use of the rail system to trans-port explosive materials from the Joliet, Illinois arsenal and other plants, or de-positories creates an unacceptably hazardous condition not considered by the Atomic Safety and Licensing Board, which issued the partial initial decision on environmental and site suitability matters for the Braidwood Station (CBP-75-1, 8 AEC 1197 (January, 1975).
At the construction permit stage the analysis of the probability of an explosion was in-adequate in that:
(a) the six month period during 1974 for which the traffic from the Joliet arsenal was-analyzed is not representative of the traffic to be expected in the future.
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(b) the analysis of the traffic was based on peacetime traffic only.
(c) only the probability of accidental or inadvertent explosions were assessed and the probability of sabotage or purposefully caused explosions were not explored.
Intervenors believe that adequate protection to the facility requires relocation of the railroad line, redesign of the features of the Braidwood Station to mitigate the con-sequences of an explosion of a magnitude that could develop if greater traffic loads of ex-plosive materials were considered or the develop-ment of procedures by the railroad to reduce the probability of explosion.
In Alabama Power Company (Joseph M.
Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974), the Com-mission held that the judicial doctrines of res judicata and collateral estoppel are applicable to proceedingu before the Commission so long as they are applied with a sensitive regard for any supported assertion of changed circumstances or the existence of some special public interest factors in the particular case.
These doctrines are intended to pro-mote judicial and administrative economy and to avoid need-less duplication of evidentiary hearings and the heavy additional burden in time and expense required to bring litigation to an end.
See United States v. Utah Construction Co.,
394 U.S.
395 at 420-422 (1966); Safir v.
Gibson, 432 F.2d 137, 143 (2nd Cir. 1979) cert. denied 400 U.S. 850 (1970).
Moreover, the Appeal Board has ruled that the application of the doctrine of collateral estoppel "does not hinge upon a demonstration that the decision of the first 4,E6. 208
tribunal.
[was]
trrect; it is enough that that tri-bunal had jurisdiction to render uhe decision. "
The, Toledo Edison Company, The Cleveland Elactric Illuminatir.J Company (Davis-Besse Nuclear Pow w Station, Units 1, 2 and 3), The Cleveland Electric Company, et al (Perry Nuclear Power Plant, Units 1 ar.d 2), ALAB-378, i1R a57, 563 (1977).
Absent a showing of overriding competing public policy considerations, the Licensing Board is not free to withhold the application of collateral esstoppel as a discretionary matter.
Id. at 5 NRC 563-564 n.7.
When considered in light of the principals set forth above, Intervenor's Contention is clearly objection-able.
The Contention unambiguously asserts that the Con-struction Permit Licensing Board erred in its " analysis of the probability of an explosion" from railroad cars carrying explosive materials.
This is precisely the type of conten-tion which the doctrines of adminie.trative repose prohibits.
Intervenor does not assert the existence of newly discovered facts or changed circumstances regarding railway explosives hazards; it simply asserts that the construction permit record does not adequately support the previous Board's decision.
The Contention amounts to a request that this Board exercise appellate review over the Construction Permit Licensing Board's decision as well as the '.ppeal Board's affirmance of that decision.
T!is is precisely the situation in which the Commission's instruction that "an 1'"5 209
_4-operating license proceeding should not be utilized to rehash issues already ventilated and resolved at the con-struction permit stage" is most singularly applicable.
Farley, supra at 7 AEC 203.
A decision which would autho-rize the relitigation of these issues on the groundo that the construction permit Board incorrectly analyzed accident probabilities would abolish the requirements, established in the Farley decision, for reexamining matters which have been previously considered.
Given that the Contention is inappropriate on its face as a collateral attack on the decision of the Construc-tion Permit Licensing Board, Applicant believes that it would be inappropriate for the Board to go behind the decision of the Construction Permit Licensing Board to determine whether the record supported the Board's decision.
However, in compliance with this Board's request, a discussion of the relevant construction permit proceedings follows.*
The Construction Permit Licensing Board concluded that the probability of unacceptable damage to the Braidwood Station due to explosives traffic on the adjacent railroad
-6 is significantly less that 10 per year.
Commonwealth Edison Company (Braidwood Station, Units 1 and 2) LBP-75-1, 8 AEC 1197, 1227 88.
As indicated in its decision, the In " Answer of Commonwealth Edison Company to The Con-tentions of Bob Neiner Farms", dated August 22, 1978, Appli-cant cited, at p.
5, the portion of the Licensing Board's Decision which discusses railway explosives h=zards.
Con-sequently, Applicant will identify the evidence in the re-cord upon which the Board presumably relied in reaching its 1,756 210 decision.
evidence relied upon by the Board for its conclusion was as follows:
(a) the Braidwood Station can withstand at least the explosive force of the detonation of an boxcar load of TNT without exceeding design overpressure (Tr. p.
612); (b) a discussion of the types and quantities of materials which may pass the site
(" Report of the AEC Regulatory Staff on Site Suitability", following Tr. p.
583 at p.
4); (c) a detailed reconstruction of U.S. explosives traffic over the past 60 years (Klopp Ex.2, Ch. 2, App.A*); (d) a survey of actual shipments of TNT from the Joliet Arsenal during the first six months of 1974 (;[d. ) ; (e) an estimation of the explosive accident rate experienced by military munitions traffic
(][ i. ) ; (f) a detailed discussion of the comparative j
int ensitivity to detonation of the explosives which may pass the site (j[d. ) ; (g) the quality of the track which passes the site, absence of curves, roadcrossings, switching yards and sidings near the plant (AEC Site Suitability Report, supra, at p.7); and an extensive examination by the Board of the Applicant's and Staff's expert witnesses on the subject of explosions near the site (Tr. 594-615).
Obviously, it is impossible to guess what weight the Board gave the various pieces of evidence identified above.
Suffice it to say that the Board considered this Klopp Ex.2 is the Braidwood Station Preliminary Safety Analysis Report.
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issue in depth, and its final decision is well supported by the evidentiary record.*
In subpart (a), Intervenor asserts that the six month period of time for which each shipment of explosives to and from the arsenal was analyzed was not representative of future traffic.
However the 60 year railway explosives study, the sensitivity studies, and most of the other evi-dence identified above are independant evidentiary bases for the Board's final decision regarding explosives hazards probabilities.
More importantly, Intervenor has failed to allege any facts which might reasonably lead to the con-clusion that future traffic past the site will increase the probability of explosions.
The issue would obviously not warrant reconsideration if circumstances have changed so as to decrease the probability of explosion.
The assertion in subpart (b) regarding railroad traffic in war years is similarly unpersuasive.
First, the assertion that the wartime traffic was not considered is simply wrong.
There was evidence before the Board which expressly considered production rates and exposure to the plant during war years (AEC Site Suitability Report, supra at p.5).
Furthermore, the 60 year reconstruction study clearly encompasses wartime production activity.
Second, at the time of the construction permit review, as now, this
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.v The Board did recognize that some types of changed circumstance might warrant reanalyzing the explosion hazard (Tr. 615).
This is, of course, consistent with the NRC's general responsibilities and with the doctrine of repose enunciated in Farley, supra.
country was at peace.
There has therefore not been a show-ing of change in factual circumstances which would warrant reexamining these issues at this time.
Finally, subpart (c) attempts to raise questions concerning the probability of purposefully caused explosions.
Again, Intervenor's assertion is factually incorrect.
The 60 year reconstruction survey considered all TNT deton tions regardless of causation.
(See AEC Site Suitability Report, supra, at p.5)
Accordingly, there was reliable and pro-bative evidence before the Board relating to the proba-bilities of TNT detonations caused by accident or otherwise.
Furthermore, the evidence concerning insensitivity to detona-tion, building design, etc. is also relevant to purposefully, as well as inadvertantly caused explosions.
Subpart (c) does not identify changed circumstances or other factors which would warrant the relitigation of these issues at this time.
What Intervenor has attempted to do by this Contention is isolate certain portions of the evidence re-lied on by the Licensing Board in reaching its conclusion that the potential for railroad explosions is not such as to render the Braidwood site unsuitable for the proposed reactors.
However, the Board's decision was based on the totality of the evidence before it, and an argument that any particular piece of evidence is not totally despositive of the issue hardly warrants reopening this matter.
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\\
. WHEREFORE, for the reasons stated above, Applicant urges the Licensing Board to dismiss Intervenor's Contention 4.
Respectfully submitted,
- 1. /
6Ih ic Michael I. Miller f*
l c) tw 9
Paul M. Murphp 6 /
Alan T. Bielawski Attorneys for Applicant ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 558-7500 DATED:
September 13, 1979 4,75 214
UNITED STATES OF AMERICA NUCLEAR REGULATORY COhMISSION
)
In the Matter of
)
)
COMMONWEALTH EDISON COMPANY
)
Docket Nos. 50-456
)
50-457 (Braidwood Nuclear Power Station,
)
Units 1 and 2)
)
)
CERTIFICATE OF SERVICE I, Alan P.
Bielawski, one of the attorneys for Commonwealth Sdison Company, certify that copies of "APPLICAi??'S SUPPLEMENTAL BRIEF ON CONTENTION 4" in the above-captioned matter have been served on the following by Onited States mail, postage prepaid, this 14 day of September, 1979:
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,a
Marshall E. Miller, Esq., Chairman Dr.
A.
Dixon Callihan Atomic Safety and Licensing Board Union Carbide Corporation Panel P.O.
Box Y U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C.
20555 Dr. Richard F. Cole Myron Karmen, Esq.
Atomic Safety and Licensing Board Office of the Executive Legal Panel Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Richard J. Goddard, Esq.
Atomic Safety and Licensing Appeal Office of the Executive Legal Board Panel Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Atomic Safety and Licensing Board Secretary Pm. 31 Attn:
Chief, Docketing and U.S. Nuclear Regulatory Commission Service Section Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Chief Hearing Counsel C. Allen Bock, Esq.
Office of the Executive Legal P.O.
Box 342 Director Urbana, Illinois 61801 U.S. Nuclear Regulattry Commission Washington, D.C.
20555 Thomas J. Gordon, Esq.
Ms. Bridget Little Rorem Waaler, Evans & Gordon 117 North Linden Street 2503 South Neil Essex, Illinois 60935 Champaign, Illinois 61820 L-s
,w
/
Alan P.
Bielawski
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