ML19269C682
| ML19269C682 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 01/26/1979 |
| From: | Cutchin J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML17138A498 | List: |
| References | |
| NUDOCS 7902120077 | |
| Download: ML19269C682 (10) | |
Text
I '-
DC PUry ~
,i'
, -3Y January 26, 1979 p
ct p
- 1 [ 1 yys UNITED STATES OF Af1 ERICA d#
NUCLEAR REGULATORY COMMISSION f.
BEFORE THE ATOMIC SAFETY Afl0 LICEtiSING BOARD f
In the Matter of
)
es G
)
PENflSYLVANIA POWER AND LIGHT CO.
)
Docket Nos. 50-387 -
ALLEGHENY ELECTRIC COOPERATIVE, INC.
)
50-388
)
(Susquehanna Steam Electric Station,
)
Units 1 and 2)
)
NRC STAFF ANSWER TO AMENDED PETITION FOR LEAVE TO INTERVEf4E OF COLLEEN fiARSH, ET AL.
The NRC Staff believes that the petition of Colleen Marsh, et al.,
(Marsh Petitionere) should be granted because these Petitioners have listed at least one admissible conMntion and set forth the bases for that contention with reasonable specificity.
I.
BACKGROUND On August 9,1978, the Nuclear Regulatory Commission (Commission or NRC) published a notice of opportunity for hearing in the captioned matter (43 Fed. Reg. 35406). The Marsh Petitioners submitted a timely request for hearing and petition for leave to intervene.
In its Memorandum and Order dated October 26, 1978, this Licensing Board concluded that the Marsh Petitioners had demonstrated standing to intervene.
Because the 79021200T7
s Marsh Petitioners had not submitted contentions and had an unqualified right to do so at any time up to 15 days prior to the holding of the first prehearing conference, the Board withheld a ruling on their con,-
tentions.
Furthermore, the Board stated its intention to schedule the first prehearing conference during January 1979 and urged the Applicant and Staff to meet with the various Petitioners prior to that time to attempt to agree on contentions, if any, suitable for litigation in this proceeding.
Both the Staff and the Appl icant attempted without success to arrange such a meeting with all the Petitioners.
By order dated December 14, 1978, this Licensing Board scheduled a prehearing conference to be held on January 29, 1979, and stated that petitions for leave to intervene could be amended or supplemented by no later than January 15, 1979.
The Marsh Petitioners filed a timely supplement to their petition for leave to intervene. The supplemented petition lists six " contentions."
Each contention is addressed below.
II.
CONTENTIONS As a general rule, contentions to be admissible in an NRC licensing proceeding (except an antitrust proceeding) must deal with matters
I 0 arising under the Atomic Energy Act or the flational Environmental Policy Act.
Not only must the contentions sought to be litigated be listed, but also the bases for the contentions must be set forth with reasonable specificity in accordance with the requirements of 10 CFR 52.714(b).
A specific basis for each contention is required:
(1) to help assure that the hearing process is not improperly invoked, (2) to help assure that other parties are sufficiently put on notice of what they will have to defend against or oppose, and (3) to ensure that the hearing process is invoked solely for the resolution of concrete issues.S Because a hearing is not mandatory in an operating license proceeding, a Licensing Board, before granting an intervention petition and thus triggering a hearing, should take the utmost care to satisfy itself fully that there is at least one contention advanced in the petition which on its face raises an issue clearly open to adjudication in the proceeding. 2/
Furthermore, a Licensing Board has no duty to recast contentions offered by a petitioner to make those cortentions acceptable. I The task of drafting an admissible contention is the responsibility of the petitioner alone.
Y
- Philadelphia Electric Coroany (Peach Bottom, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974).
1 ncinnati Gas and Electric Company (William H. Zimmer Nuclear Power Ci Station), ALAB-305, 3 NRC 8,12 (1976).
- Commonwealth Edison Comoany (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 406 (1974).
, As the Commission has stressed.?n several occasions:
A cardinal prehearing objective of the presiding Atomic Safety and Licensing Board will be to establish, on as timely a basis as possible, a clear and particularized identification of those matters related to the issues in this proceeding which are in controversy. As a first step in this prehearing process, we expect the Board to obtain from petitioners a detailed specification of the matters which they seak to have considered in the ensuing hearing.
In the Commission's view, the course outlined above is central to the proper focus and orderly conduct of the prehearing process, including the scope of appropriate discovery and of the later hearing itself. _4/
Contentions'1 and 2 These contentions state that the proposed project creates an unreasonable risk of hara to the health and safety of... the public" and to private property.
They are too general.
However, four particular bases are set out for the contentions, and each must be looked at to see if the requirement of 10 CFR 2.714(b) that the " basis for each contention [is]
. set forth with reasonable specificity" is met.
S/ sconsin Electric Power Comoany_ (Point Beach Nuclear Plant, Unit 2),
Wi Memorandum and Order, 4 AEC 635, 636 (1971); Boston Edison Comoany (Pilgrim Nuclear Power Station), Memorantun and Order, 4 AEC 666, 667 (1971); !!aine Yankee Atonic Power Company, Memorandum and Order, 4 AEC 728, 730 (1971); Florida Power and Liant Company (Turkey Point, Units 3 and 4), Memorandum and Order, 4 AEC 787, 789 (1972).
a w
o,
. w - #
=-,m.,
e M
5-Basis A.
Herein Petitioner indicates that the risk to health and safety and property will be caused by coolant pump flywheel missiles resulting from overspeed of the pump, and the insufficiency of the electrical breaking system on this pump. Although this basis does not specify how the missiles will be generated, or the nexus between such missiles and health, safety, or property, sufficient infomation is given to fom the general basis of a contention. Greater specificity of bases will be sought in discovery.
Basis A provides a valid basis for a contention, and the
" pump flywheel missile" contention is admissible.
Basis B.
The Petitioner here wishes to litigate the ultimate stort. - 'f high-level and low-level radioactive wastes.
Such contentions are not appropriate for an individual licensing proceeding. The Commission has ruled that it believes there will be sufficient waste disposal and storage facilities available when needed, and that these matters should not be considered in individual licensing proceedings.
42 Fed. Reg. 34391, 34393 (July 5,1977); aff'd National Resources Defense Council v.
NRC,11 ERC 1945 (2d Cir.1978).1 Basis B is not a valid basis for an admissible contention.
Basis C.
This basis deals with the plans for the safe transportation of radioactive materials.
No indication is given why the plans are not S ee also Northern States Power Co. (Prairie Island Nuclear Generating S
Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 48-51 (1978).
f_
adequate. There is no " reasonable specificity." No indication or allegation is made that 10 CFR 71.5 or any regulation of the Department of Transportation is or will be violated. Those regulations are controlling.
10 CFR 2.758.
This is not a valid basis for an admissible contention.
J Basis D.
Herein Petitioner alleges that Applicant has failed "to solve the problem of.70w induced vibration in the core, thereby creating "in-vessel sparger effects." These contentions do not allege that the vibrations -
will arise, how they will be generated, how they create "sparger failure,"
or their nexus to public health and safety.
It is not reasonably specific within the meaning of 10 CFR 2.714(b). This is not a valid basis for an admissible contention.
Contention 3 The Marsh Petitioners state that the public is " exposed to unreasonable risk of harm to personal safety and property due to protection of the Company under the Federal Price-Anderson Act which limits its liability."
The Petitioners appear to be attacking the extent of the Applicant's liability as set by Congress in the Price-Anderson Act.
Clearly, this proceeding does not provide a forum for such a challenge 5/ and the contention is inadmissible.
-5/ Florida Power and Licht Comcany (Turkey Point Units 3 and 4), Commission Memorandum and Order, 4 AEC 787, 788 (1972).
=eea wem ge4.wwg gw m 9
. Contention 4 The Marsh Petitioners state that the " proposed facilities violate this Commission's Standards [ sic] for protection against radiation set down in
'10 CFR 620.1, et seq., and 10 CFR 620.105(a) which provides for pemissible levels in unrestricted areas and the environment around the Facilities [ sic]."
They cite the so-called bases set forth in support of Contention 1 as support for Contention 4.
The bases do not identify how the standards of 10 CFR 20 would be violated.
The contention is inadmissible.
Contention 5 This contention alleges that the largely completed facilities here are
" unreasonably costly and unecommic." Even if true these allegations do not have the " reasonable specificity" necessary for a contention.
No allegation is made that if would be contrary to the Atomic Energy Act or the National Environmental Policy Act to issue operating licenses for this facility.
No allegation is made that the cost-benefit balance considering sunk costs is so tilted that the plant should not be operated.
Nor do Petitioners allege that facts are so changed from the time of issuance of a construction permit that they need be dealt with in the operating license proceeding.
See 10 CFR 51.21.
The contention as a whole
~
. is inadmissible.
Dealing with the alleged bases provided by the Petitioner we also find no " reasonable specificity."
Basis SA. Why the incremental costs of energy from this completed facility will be more than that of electric energy generated from other sources is not specified. A less expensive source of energy is not even specified.
The Staff does not know what issue to meet. Thus, no basis for an admis-sible contention is provided.
Basis SB.
Petitioner fails to indicate where these costs should be included.
No allegation is made that the requirements of 10 CFR 50.33(f) were not met.
No particular methods of decommissioning need be addressed at this time.
See 10 CFR 50.82.
No " reasonable specificity" is provided for allegations concerning the future costs.
No basis for an admissible contention is provided.
Basis SC.
It is alleged that the facility is unneeded and wasteful because the Applicant has sufficient operating capacity.
The allegation does not provide the basis for an admissible contention because it does not recognize that the costs have already been invested in the subject facility and that the facility is largely complete.
These costs have been incurred from a societal cost-benefit prospective, regardless of costs to particular owe s
m
c s
g-rate-payers. Thus, a contention on this basis is inadmissible because the Petitioner has not specified why in the legal and factual context of this proceeding the matters claimed should prevent the licenses from issuing.2/
Basis SD. This basis alleges that the Pennsylvania Utility Commission allows the subject plant in the rate base. This is a matter for that Commission and outside the jurisdiction of the NRC.
It is not a proper basis for a contention for this proceeding.
Contention 6 The Marsh Petitioners state that the " Applicants fail to adequately provide plans for informing the public as to evacuation procedures including drills and warnings in the event of radiation leakage." The contentior as stated does not allege a failure to meet regulatory requirements for emergency plars. Appendix E to 10 CFR Part 50 sets forth those requirements.
No bases are provided which v;ould tend to support an allegation of failure to meet those regulatory requirements.
Thus, the contention is inadmissible.
-2/ff.. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 530-536 (1977); aff'd New England Coalition on Nuclear Pollution v. NRC, F.2d (August 28,1978, No. 77-1219, pp. 14-15).
~
- D*
m..
.e..
- --
e,=e
===aw-
=
ye
. III. CONCLUSICN The Marsh Petitioners have advanced at least one admissible contention and set forth the bases for that contention with reasonable specificity.
Therefore, the request for hearing and petition for leave to intervene of the Marsh Petitioners should be granted.
Respectfully submitted,
- ze James M. Cutchin, IV Counsel for NRC Staff Dated at Bethesda, Maryland this 26th day of January, 1979.
--