ML19326A934

Reply of Toledo Edison Co & Cleveland Electric Illuminating Co to Coalition for Safe Nuclear Power 720509 Motion Should Be Denied.Certificate of Svc Encl

ML19326A934
Person / Time
Site:	Davis Besse
Issue date:	05/15/1972
From:	Charnoff G CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19326A932	List: ML19326A931 ML19326A934
References
NUDOCS 8003050835
Download: ML19326A934 (7)

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e UNITED STATES OF ALERICA ATOMIC EIiERGY COMMISSION Before Atomic Safety and Licensing Board In the Matter of THE TOLEDO EDISON COMPANY and Docket No. 50-346 THE CLEVELAND ELECTRIC ILLUMINATING COMPANY (Davis-Eesse Nuclear Power Station)

REPLY OF THE TOLEDO EDISON COMPANY AND THE CLEVELAND ELECTRIC ILLUMINATING COMPANY TO COALITION'S MOTION TO REOPEN SUSPENSION HEARINGS

1. At the conference of counsel in Cleveland on April 20, 1972, and at the public hearing, the Licensing Board' directed each party to the proceeding to file pro-posed findings of fact and conclusions of law by the close of business on May 10, 1972 (Tr. 27-28,502). The Toledo Edison Company and The Cleveland Electric Illuminating Company ("Permittees") and the Regulatory Staff duly complied with the Licensing Eoard's request. Coalition for Safe' Nuclear Power (" Coalition"), the sole remaining Intervenor herein, by its filing mailed on May 9, 1972,

' expressly declined to file any such proposed findings and  :

conclusions. On the same date, Coalition moved the Licensing Board to reopen the suspension hearing.

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2. The public hearing record contains sub-stantial evidence relating to:

la) the environmental effects of continued construction of the_ Davis-Besse facility during the ongoing NEPA review, demon-i strating that there will be little, if any, environmental effect and that any i such effects are redressable; b) the alternatives to the Davis-Eesse facility and the design alternatives to each of the environmentally signifi-cant aspects of the design of the Davis-Eesse plant demonstrating that continued construction will' not foreclose subsequent , adoption of any of such alternative design features; the record shows there are a-e large number of possible augments to the thermal and radioactivity effluent systems

                        'and to the nuclear safety systems. The 1-

_ record also shows that the present plant design satisfies applicable water quality , criteria and AEC's proposed "as low as practicable" radiological release criteria; c) the cost of abandonment of the Davis-Eesse project demonstrating that if construction i- [ i l

were suspended now the cost of abandon-ment to the Permittees and to the public would be very substantial; the incremental investment to -be made during the NEPA review period could not alter that con-clusion and, relatively speaking, is not significant;

                           -d)    the. incremental investment in the cooling tower and the radwaste treatment facilities during the NEPA review period is not i

significant; and

e) the cost of a suspension of construction pending completion of the NEPA review

.. demonstrating that both the Permittees and the public would incur substantial-i costs from any such suspension and that the reliability of the power supply in the areas served by the Permittees would

<                                 be seriously jeopardized by any such suspension.

Intervenors' failure to. submit any proposed findings with respect to the record in the proceeding is a significant default by_the Coalition and in effect waives Coalition's-i right:to comment or.take' exception to the matters in the record. Section 2.754(a) of 10 CFR Part 2, " Rules of i n 1 --n , , e - -- ,..- ,w r- - ~

Practice" provides : Failure to file proposed findings of fact, conclusions of law or briefs.when directed to do so may be deemed a default, and an order or initial decision may be entered accordingly. 3 The Licensing Board, as asserted by Inter-venors, indeed, ruled as inadmissible much evidence with

respect to the environmental effects of operation of the Davis-Besse facility. The Licensing Eoard correctly noted' that such matters, were appropriate to the NEPA review itself and that this hearing was not convened to conduct a full NEPA review. The Licensing Board, accordingly, accepted evidence with respect to the

         . environmental effects of continued construction but refused to accept evidence with respect to operation of the plant.      The Licensing Board, however, accepted, indeed it encouraged the production of, testimony relating to the full range of alternatives to the Davis-Besse plant and to each of the design features of the plant which may be of environmental significance.               As a result, there is a full and complete record ~ showing that:

a) the economic and social cost of abandon-ment is already substantial and cannot be rendered nonsubstantial by a sus-4 pension of construction;

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b) there is a large number of design alterna-tives to augment the present design to further protect the environment which may be considered in the full NEPA re-view and the availability of such alternatives will not be physically or economically foreclosed by continued construction; and c) the availability of such a large number of possible augments to the present design, and the uncontradicted testi-mony showing that the thermal and t radiological releases will meet appli-cable criteria, make it most unlikely that the possibility of environmental harm could outweigh the cost of abandon-4 ment. Furthermore, Permittees, on the record, waived any consideration by the Commission in the final NEPA review of i the incremental investment to be made during the NEPA review period. With respect to radiological accidents, in addition'to the identification on the record of design alternatives all of which would not be foreclosed by continued construction, the Licensing Board should take notice that the Supreme b o

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Court has specifically rejected the argument that the Commission cannot be counted on, when the time comes to make a definitive safety finding, wholly to exclude the consideration that PRDC will have made an enormous investment.

                 .       Power Reactor Development Co. v.

International Union 307 U.S.' 396 (1901)

4. The Permittees were prepared, and indeed offered, to introduce testimony which would have demon-strated that operation of the plant would have no signifi-cant adverse effect on the environment. This information would have provided still another basis in the record for concluding that the environmental harm would be minimal and that abandonment is neither a likely prospect nor could it possibly outweigh the cost of abandonment.

5 Based on the record in the proceeding, the Licensing Board did not err, however, in limiting the testimony in the proceeding. It simply approached the issues in the proceeding in a manner which facilitated their consideration in a timely manner consistent with _the time _ limitations imposed by the remand order of the Court'of Appeals. This was clearly within the discretion of-the Licensing Board and within the broad mandate of NE PA. As ~ recently as April 14, 1972, the House Committee

on Merchant Marine and Fisheries, which has legislative

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4 oversight of NEPA and its implementation, said, NEPA is not adamant in stating just how such considerations [ environmental considera-tions involved in licensing a nuclear plant] are to be developed. UEFA is not a procrustean bed against which agency programs must be measured and performance rigidly judged; it is rather a flexible tool designed to assist agency decision makers . . . (H. Rep. No. 92-991, p. 6) The approach taken by the Licensing Board permitted the development of a sufficient record with which the Licens-ing Board could adequately consider the central issues in the proceeding.

6. Intervenors' Motion to reopen the hearings should be denied.

Respectfully submitted, 1 erald Charnoff Counsel for The Toledo Edison Company and~The Cleveland Electric Illuminating Company Dated: May 15, 1972 i

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before Atomic Safety and Licensing Boar'd 1 In the Matter of THE TOLEDO EDISON COMPANY and Docket No. 50-346 THE CLEVELAND ELECTRIC ILLUMINATING COMPANY

       -(Davis-Besse Nuclear Power Station)

CERTIFICATE OF SERVICE I hereby certify that copies of the " Reply of The Toledo Edison Company and The Cleveland Electric Illuminating Company to Coalition's Motion to Reopen Suspension Hearings" were served on the following, by deposit in the U. S. mail, on May 15, 1972: Jerome Garfinkel, Esq. , Chairman Secretary (20) Atomic Safety and Licensing Board U. S. Atomic Energy Commission U. S. Atomic Energy Commission Washington, D. C. 20545 Washington, D. C. 20545 Attn: Chief, Public Proceedings Branch Dr. John R. Lyman Department of Environmental Martin Malsch, Esc. .(6) Sciences Office of General Counsel The University of North Carolina U. S. Atomic Energy Commission Chapel Hill, North Carolina 27514 Washington, D. C. 20545 Dr. Emmeth A. Luebke Jerome S. Kalur, Esq. 610 Foxen Drive Jamison, Ulrich, Burkhalter Santa Barbara, California 93105 & Hesser 1425 National City Bank Building Algie A. Wells, Esq. Cleveland, Ohio 44114 Atomic Safety and Licensing Appeal ' Board Atomic Safety and Licensing Board U. S. Atomic Energy Cor. mission Panel Washington, D. C. 205h5 U. S. Atomic Energy Commission Washington, D. C. 205h5 SHAW, PITTFAN, P O T T S 6: TROWBRIDGE By , , \fLNw Gerald Gnarnorr }}