ML19326A871
| ML19326A871 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 04/21/1971 |
| From: | Wallig P US ATOMIC ENERGY COMMISSION (AEC) |
| To: | |
| References | |
| NUDOCS 8003050772 | |
| Download: ML19326A871 (7) | |
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UNITED STATES OF AMERICA APR 2 2197I ".9 2
ATOMIC ENERGY COMMISSION MD g.r., e e.: sme:'a' fr.:nM5 4
_BEFORE THE ATOMIC SAFETY AND_ LICENSING APPEAL BOARD p Ner q
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THE TOLEDO EDISON COMPAhT
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Docket No. 50-346 THE CLEVELAND ELECTRIC ILLUMINATING
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COMPAh7
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(Davis-Besse Nuclear Power Station)
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AEC RECULATORY STAFF'S REPLY BRIEF TO INTERVENOR COALITION FOR SAFE NUCLEAR PobT.R'S EXCEPTIONS TO THE INITIAL DECISION The intervenors Coalition for Safe Nuclear Power (Coalition) filed exceptions by a letter postmarked April 8,1971, to the Initial Decision of the presiding Atonic Safety and Licensing Board, dated March 23, 1971. Exceptions Nos.1 through 5 concern the Commission's imple=entation of the National Environmental Policy Act of 1969 (SEPA).
Exception No. 6 is concerned with the presiding Board's ruling that paragraph 32 of the Coalition's a:nended petition to intervene, which dealt virh the transportation of radioactive r.aterials from *:he
- rgcaed plan
- , :s irrelevant to this hearing.
Exceptions Nos. 1 and 3-5 are basically an attack on Appendix D to 10 CFR Part 50 of the Co==1ssion's rules and regulations.
Upon briefs submitted af ter the hearing, the presiding Board determined g
2 there was no substantial question rained by intervenor LIFE 1/ as to the validity of Appendix D, which should be certified to the Commission in accordance with the Co==ission's Memorandum Decision in Calvert Cliffs. 2/ The Coalition, in its exceptions, relies on the brief filed by LIFE with the presiding Board.
The staff opposes these exceptions for the reasons contained in its brief filed today in reply to the exceptions filed by LIFE in this matter.
1/ Intervenor Living in a Finer Environment and William E. Reany (LIFE), in its motion to reconsider its amended petition to intervene, limited itself to two contentions:
first, Part 20 was invalid; and second, Appendix D was invalid.
The presiding Board ruled that evidence could be offered as to Part 20 but that the validity of Appendix D was not an evidentiary matter and hence would be handled by briefs at the close of the hearing.
The Board ruled that any party that desired to do so could file a brief arguing either for or against the validity of Appendix D (Tr. 618-619, 630).
The only parties to file briefs on Appendix D vere LIFE, the applicants, and the regulatory staff.
These parties and intervenor Glenn Lau also filed proposed findings of fact and conclusions of law as to the validity of Appendix D.
The Coalition's failure to file either a brief or proposed findings of fact and conclusions of law concerning the validity of Appendix D is in the nature of a default with respect to that catter and in any event the staff urges that the Coali-tion's exceptions on that point should net be perr.itted at this stage.
2/ In the Matter of the Baltimore Gas and Electric Company (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), Eocket Nos. 50-317 and 50-318, August 8,1971.
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Exception No. 2 centends that the presiding Board did not require the applicant to ec= ply with the requirenents of NEPA and to require the AEC to implement the provisions of NEPA.
The Commission's imple=entation of NEPA fully complies with all of the requireecnts of that statute.
To icplement the provisions of NEPA, the Cotsission first published Appendix D to 10 CFR Part 50 of its regulations on April 2, 1970. 3/ On June 3,1970, the Commission published for comment proposed scendments to Appendix D which provided interin guidance. 4/ Subsequently, on December 4, 1970, the Co= mission published a revised Appendix D which became effective January 3, 1971. 5/
Under the June 3 proposed amendments to Appendix D, which werc followed in this proceeding, the Cotsission required applicants for licenses to submit an envircncental repcre which was then circulated to the appropriate Federal, State and local agencies. 6/
Upon receipt of the comments of these agencies, the designee of the Director of Regulation prepared the detailed environmental statement.
In this proceeding, this detailed statenant and the 3/ 35 F.R. 5463.
4/ 35 F.R. 8594.
5/ 35 F.R. 18469 6/ In any event, in the June 3 proposed scendments to Appendix D the Co=miccion recogni:cd that some period of time =cy be re-quired before full compliance with the procedures themselvea can be achieved.
applicants'<anvironmental report covered those areas enumerated in NEPA.
Both of these documents were offered as an exhibit in this hearing by the AEC regulatory staff on December 10, 1970. 7/
New Appendix D, effective January 3,1971, does not require any different procedure for proceedings pending at the time that the amended Appendix D was published.
A review of the record in this proceeding clearly indicates that both the applicants and the regulatory staff complied with the provisions of NEPA as implemented by the Commission in Appendix D.
The procedures specified in the interi= guidance were fc11 owed by both the applicants and the AEC regulatory staff as can be noted in the record, 8/ Neither the effective Appendix D published on
- f April 2,1970, nor the proposed revision published on June 3,1970, which were applicable to this proposed licensing action, required that the detailed statement of environmental considerations be cade a part of the evidentiary record.
The only requirement in this regard is that the detailed statement accompany the application through the review process. 9/ Offering the detailed statement in 7/ Transcript page 495.
f[/ Transcript pages 495-498.
9/ 10 CFR Part 50, Appendix D, paragraph 2, as published on April 2, 1970, and paragraph 7 as published for comment on June 3,1970.
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evidence, as was done in this proceeding, for the limited purpose of showing compliance with Appendix D is an appropriate means to identify the statement for the record and assure that it accorpanies the application through the review process.
Exception No. 6 claims the presiding Board erred by ruling as irrelevant to this hearing the consideration of the transportation of radioactive waste from the proposed plant.
Neither the construction permit nor an operating license for this plant would, if issued, of itself authorize the shipment of radio-active material, including spent fuel, from the plant.
Requirements applicable to shipment and transportation of radioactive anterials are provided for in 10 CFR Part 71 of the Commission's rules and regulations. Part 71 and Parts 30, 40 and 70 list the requirements for shipment and transportation of radioactive caterial which include compliance with the applicable regulations of the Department of Transportation 10/ These regulations also provide for the issuance of the appropriate licenses, license amendment, or other authoriza-tions necessary to transport radioactive =aterial.
The construction permit which was the subject of this proceeding carries with it no right to receive, ship or transport source, specici nuclear, or 10/ 49 CFR Parts 170-189, 14 CFR Part 103 and 46 CFR Part 146.
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. s byp:oduct materials. Such authorization is a catter of separate licensing in accordance with 10 CFR Parts 30, 40 and 70.
Although no exception is taken, on page 2 of the Coalition's brief, the following statement is found:
"10 CFR Sec. 50.34(a), effectiva January 2,1971, should have been made applicable to the hearings.
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Bureaucratic efficiency is not an elecent Congress chooses to f
weigh against the public health and safety."
l We believe that the Coalition is referring to 10 CFR 50.34 a., which j
is part of the " low as practicable" atendments publiched in the l
5 Federal Register on December 3,1970. As the staff testified at I
the hea-applicants provided the information required by 550.34 a. during the review of the application by the regulatory staff 11/ Furthermore, the Coalition did not raise this issue until January 21, 1971, even though it had filed its petition to intervene on Novecber 18, 1970, amended the petition on Dececher 5, 1970, and rested its case on January 7, 1971. 12/
11/ Transcript pages 1219-122:.
12/ Transcript pages 917-918.
For the above reasons, the AEC regulatory staff believes that the exceptions of the Coalition should be denied and that the initial decision of the licensing board should be affirmed.
Respectfully subnitted,
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Paul W. Wallig Counsel for AEC Regulatory Staff Dated at Bethesda, Maryland, i
this 21st day of April,1971.
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