ML19269C689
| ML19269C689 | |
| 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 7902120086 | |
| Download: ML19269C689 (13) | |
Text
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January 26, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE AT0ftIC SAFETY AND LICENSING BOARD In the Matter of
)
PENNSYLVANIA 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 INTERVENE OF ENVIRONMENTAL C0ALITION ON NUCLEAR POWER The NRC Staff believes that the petition of the Environmental Coalition en Nuclear Power (ECNP) should be granted and that a hearing should be ordered because ECNP has listed at least one admissible contention and set forth the bases for that contention with reasonable specificity.
I.
BACKGROUND On August 9,1978, the Nuclear Regulatory Commission (Comission or NRC) published a notice of opportunity for hearing in the captioned mattor (43 Fed. Reg. 35406).
ECNP 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 ECNP 99021%
2-had demonstrated standing to intervene, subject to the Board's receipt of information that certain individuals who had submitted affidavits were members of ECNP.
Because ECNP 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 contentions.
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 Applicant 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.
ECMP filed a timely amendment to its petition for leave to intervene. The amended petition lists twelve contentior.s.
Each contention is addres;ad below.
. II.
CONTENTIONS As a general rule, contentions to be admissible in an NRC licensing,
proceeding (except an antitrust proceeding) must deal with matters arising under the Atomic Energy Act or the National 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 2.714(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.
Because a hearing is not mandatory in an operating license proceeding, a ticensing 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.
Furthermore, a Licensing Board has no duty to recast contentions offered S iladelphia Electric Comoany (Peach Bottom, Units 2 and 3), ALAB-216, Ph 8 AEC 13, 20 (1974).
S ncinnati Gas and Electric Company (William H. Zimmer Nuclear Power Ci Station), ALAB-305, 3 URC 8, 12 (1976).
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. by a petitioner to make those contentions acceptable.S The task of draf ting an admissible contention is the responsibility of the petitioner alone.
As the Comission has stressed on several occasions:
A cardinal prehearing objective of the presiding Atomic Safety and Licensing Board will be to establ,sh, 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 seek 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. 3 3f ommonwealth Edison Comoany (Zion Station, Units 1 and 2), ALAB-226, C
8 AEC 381, 406 (1974).
S sconsin Electric Power Comoany (Point Beach Nuclear Plant, Unit 2),
Wi Memorandum and Order, 4 AEC 635, 636 (1971); _B_oston Edison Comoany (Pilgrim Nuclear Power Station), Memorandum and Order, 4 AEC 666, 667 (1971); Maine Yankee Atomic Power Comoany, Memorandum and Order, 4 AEC 728, 730 (1971); Florida Power and Lignt Comoany (Turkey Point, Units 3 and 4), Memorandum and Order, 4 AEC 787, 789 (1972).
. Contention 1 ECNP contends that the analysis of the human health effects of the uranium fuel cycle have been seriously misrepresented and underestimated.
It is not clear from the bases set forth for the contention whether that is a general allegation or specific to the Susquehanna proceeding since the Environmental Impact Statement on issuance of operating licenses has not yet been issued by the Staff. At best the contention is premature and speculative.
But because it raises concerns about the health effects of the uranium fuel cycle, it should be admitted to the extent that ECNP contends that these health effects tip the balance against issuing operating licenses for the Susquehanna units-5/
and provided ECNP identifies specifically what health effects it refers to and what those effects are caused by.
Contention 2 ECNP appears to contend that the cost-benefit analysis for the Susquehanna units is incorrect because it compares environmental impacts related to operation of the nuclear plant with impacts attributable to background S ee Potomac Electric Power Comoany (Douglas Point Nuclear Generating S
Station, Units 1 and 2), ALAB-218, 8 AEC 79, 88 (1974).
. radiation and because it does not consider health effects of all long-lived radioactive isotopes released or caused to be released by operation of the Susquehanna units. Again, the bases for the contention are t
unreasonably general.
ECNP has not specified exactly which long'-lived radioactive isotopes have not been considered. However, a contention may be admitted dealing with whether the cost-benefit balance for the facility is rendered of no worth: 1) by a consideration of the incremental radiation to be caused by the facility compared with background radiation, and 2) by a failure to consider all radioactive isotopes released or caused to be released by operation of the facility.
Further, ECNP must identify all isotopes which it contends were not considered.
Contention 3 ECNP asserts that known and assured reserves'of uranium are insufficient to supply the lifetime fuel requirements for the Susquehanna units and offers this assertion as a basis for its contention that full environ-mental effects of fuel supply and mill tailings have not been properly considered.
The contention is vague.
There is no indication whether ECNP is here concerned with the availability of fuel, the costs of fuel, the general problems of disposal of mine waste or the radiological effects of such waste. To the extent that ECNP seeks a ~urther discussion of the
% environmental impacts of the uranium fuel cycle than is presented in Table S-3 to 10 CFR 51.20(e), other than health effects (which are raised in Contentions 1 and 2) and estimated releases of Radon-222 (which are not raised), the contention is inadmissible.
Thus, this contention fails to indicate whether the hearing process is properly invoked, fails to alert the parties to what they must litigate, and does not present a concrete issue.
It is inadmissible.
Contention 4 ECNP contends that there is no need for the power produced by the Susquehanna units, in that strict energy conservation has not been realistically con-sidered.
It further states the effect of the use of electricity on reducing employment has not been considered As a basis for its contention, it cites information presented and allegedly omitted by thc Applicant in its Environ-mental Report (ER).
Even if true, such bases do not support the ECNP contention. The ER provides information for use by the Staff in preparing an Environmental Impact Statement (EIS).
It is the EIS and not the ER which must be adequate and provide a basis for Commission action. E/ ECNP has 5/ ee Public Service Comoany of New Hampshire (Seabrook Station, Units 1 S
and 2), CLI-77-8, 5 URC 503, 525 (1977); Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2, ALAB-479, 7 NRC 774, 792 (1978).
See also New Enaland Power Company (NEP, Units 1 and 2 ), LBP-78-9, 7 NRC 271, 279 (1978).
4
% not alleged that the facts regarding need for power are so changed from the time of issuance of construction permits they must be redealt with in the operating license proceeding.
See 10 CFR 51.21.
Further, the Appeal Board has held that social value of the end uses of electricity is "beyond the pale" of what is required by NEPA.
Thus, ECNP has provided no valid bases for its contention and the contention is inadmissible.
Contention 5 ECNP contends that "the models used to calculate individual and population doses" are inaccurate and obsolete and that radiation doses are thus under-estimated. Although it is not clear what impact ECNP alleges that this fact should have on the issuance of the operating license, it appears that ECNP is challenging the bases for the Commission's regulations on effluent limits in 10 CFR 20.
To the extent that ECNP seeks to do so such a challenge is impermissible.
10 CFR 2.758. floreover, "the models used to calculate individual and population doses" is too general and thus not reasonably specific enough to inform the parties of the issues sought to be litigated. The contention is inadmissible.
Q nsumers Power Co. (flidland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 351-352 (1973); Public Service Co. of Oklahoma (Black Fox Station, Units I and 2), LBP-76-38, 4 NRC 435, 438 (1976).
. Contention 6 ECNP contends that the analysis of alternatives is incomplete.
It is not clear how ECNP can make such an allegation before the EIS is issued.
Also, portions of this contention appear to be repetitious of other contentions.
Furthermore, ECNP does not appear to recognize that the plant will have been constructed. As the Supreme Court has said:
Common sense also teaches us that the " detailed statement of alternatives" cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how unconnon or unknown that alternative may have been at the time the project was approved.
9/
ECNP has provided absolutely no basis for raising such a contention in the operating license proceeding. The contention is not admissible for lack of reasonable specificity of bases to support such a contention.
0/
-- The allegations concerning health costs are so unspecific as to be incapable of answer.
7urther, see Staff reply to contentions.
See Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, 98 S.Ct. 1197 (1978).
. Contention 7 ECNP contends that emergency response planning by the Applicant and State agencies for notification and evacuation of the public beyond the site boundary is not complete and sufficient.
Current Commission regulations (Appendix E to 10 CFR 50) do not require that consideration be given to the feasibility of devising an emergency plan for the protection in the event of an accident of persons located outside the low-population zone for theparticularfacility.b Apparently it is these areas outside the low-population zone to which ECNP has reference. Although the Commission has issued notice of proposed rulemaking to consider changes to Appendix E to 10 CFR 50 which would modify the requirements for emergency planning (43 Fed. Reg. 37343), the ECNP contention is an impermissible challenge to current regulations.
To the extent that the contention deals with matters in the low-population zone, there is no allegation or detail 11/
on how the plans do not meet the requirements of Appendix E.
The contention is inadmissible.
Contention 8 ECNP alleges that use of certain herbicides to maintain clearance of trans-mission line rights-of-way is a threat to the health and safety of persons living near or traversing these areas. Without more ECNP has not raised an admissible contention.
It has not identified the specific herbicides or alleged that the Applicant plans to use them to clear rights-of-way.
$ ew England Power Comoany (NEP, Units 1 and 2), ALAB-390, 5 NRC 775 N
(1977).
b ere has been no change in Commission direction in the treatment of Th Class 9 accidents.
. Contention 9 ECNP alleges that archeological investigation of the site was inadequate and incomplete prior to start of construction of the Susquehanna' units and asks this Board to require completion of these investigations before further construction.
ECNP has provided no basis for such a contention.
No sites are identified.
ECNP does not specify what should have been done that was not done.
Furthermore, whether construction should proceed is not before this Board.
In addition, it is not even contended that any further work at this stage of construction could have any effect on the archeology of the area.
ECNP has not raised an admissible contention.
Contention 10 ECNP asserts that the Susquehanna units contain numerous design deficiencies which may never be resolvable and that the Susquehanna units may never be safe enough to operate.
ECNP provides a number of general and speculative bases to support its speculative contention.
Such bases do not provide the reasonable specificity and concrete issues required.
Moreover, ECNP makes general reference to a number of documents. A petitioner is not permitted to incorporate massive documents by reference as a basis for, or statement of, contentions.12/ The contention is too general, lacks adequately reasonable bases and is inadmissible.
33/ ennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 and 2),
T LBP-76-10, 3 NRC 209, 216 (1976).
.. Contention 11 ECilP " contends" that excessive reliance on single failure events leads to a false sense of security and certainty.
ECitP does not allege that a regulatory requirement is, at complied with. As a basis for its contention Petitioner makes a general reference to testimony of Dr. David Okrent of the ACRS and hearings before the Joint Committee on Atomic Energy. A petitioner is not permitted to incorporate massive documents by reference as a basis 14 for, or statement of, contentions.
/ ECt1P has not stated a valid contention or reasonably specified its bases.
Such a contention is inadmissible.
Contention 12 ECi1P contends that no operating licenses should issue for Susquehanna Units 1 and 2 "[a]bsent national policy determinations, federal legislation, and administrative agency regulation" of certain issues. As a basis for this contention ECt1P alleges that " plant decommissioning and ultimate dismantling and site decontaoination,... spent fuel storage and...
disposal, radioactive waste management and disposal..., and health costs will render the Susquehanna " facility economically non-competitive with virtually any of the many alternative sources of energy or with conservation."
3 ee Appendix A to 10 CFR 50, Definitions and Explanations.
S NLBP-76-10, suora.
. Such a contention is too general and lacks reasonably specific bases.
Petitioner appears to be leveling an attack on the entire scheme of regulation of nuclear plant licensing including current national policy, federal laws and agency regulations. Such a general challenge is impermissible in a licensing proceeding and the contention is inadmissible.
III.
CONCLUSION ECMP has 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 ECNP should be granted.
Respectfully submitted, mr
%CE James M. Cutchin, IV Counsel for NRC Staff Dated at Bethesda, Maryland this 26th day of January,1979 e
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY A!!D LICEllSIt:G BOARD In the Matter of
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PENNSYLVANIA POWER AND LIGHT CO.
)
Docket tios. 50-387 ALLEGHEtiY ELECTRIC COOPERATIVE, IriC.
)
50-388
)
(Susquehanna Steam Electric Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF At1SWER TO AMENDED PETITION FOR LEAVE TO INTERVENE OF COLLEEil MARSH, ET AL.," "NRC STAFF AtiSWER TO AMENDED PETITION FOR LEAVE TO INTERVENE OF THE CITIZENS AGAltiST tlUCLEAR DAtlGERS,"
"NRC STAFF ANSWER TO AMENDED PETITION FOR LEAVE TO INTERVENE OF SUSQUEHANiiA ENVIRONMENTAL ADVOCATES," and "NRC STAFF ANSWER TO AMENDED PETITION FOR LEAVE TO INTERVEllE OF ENVIRONMENTAL COALITION ON NUCLEAR POWER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission internal mail system, this 26th day of January,1979:
Charles Bechhoefer, Esq., Chairman
- Dr. Judit'h H. Johnsrud Co-Director Atomic Safety and Licensing Environmental Coalition on Board Panel U.S. Nuclear Regulatory Commission fluclear Power Washington, D.C.
20555 433 Orlando Avenue State College, PA 16801 Mr. Glenn 0. Bright
- Atomic Safety and Licensing Mr. Thomas M. Gerusky, Director Board Panel Bureau of Radiation Protection U.S. Nuclear Regulatory Commission Department of Environmental Washington, D.C.
20555 Resources Commonwealth of Pennsylvania Dr. Oscar H. Paris
- P.O. Box 2063 Atomic Safety and Licensing Harrisburg, PA 17120 Board Panel U.S. Nuclear Regulatory Commission Ms. Colleen Marsh Washington, D.C.
20555 Box 538A, RDi4 Mountain Top, PA 18707 Jay Silberg, Esq.
Shaw, Pittman, Potts and Mrs. Irene Lemanowicz, Chairperson Trowbridge The Citizens Against Nuclear 1800 M Street, N.W.
Dangers Washington, D.C.
20036
.P.O. Box 377 RD#1 Berwick, PA 18503
-: 2-
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Susquehanna Environmental Atomic Safety and Licensing Advoca tes Board Panel
- c/o Gerald Schultz, Esq.
U.S. Nuclear Regulatory Connission Washington, D.C.
20555 500 South River Street Wilkes-Barre, PA 18702 Docketing and Service Sectign*
Atomic Safety and Licensing Office of the Secretary Appeal Board Panel
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Q.
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xm-James M. Cutchin, IV Counsel for NRC, Staff 9
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