ML19337A191

Response in Opposition to Citizens Against Nuclear Power,J J Runyon & E Gogol Petition for Review of Aslab 800729 Order Affirming ASLB 800530 Dismissal of Contentions.Const Will Not Be Allowed Prior to Environ Review.W/Certificate of Svc

ML19337A191
Person / Time
Site:	05000599, 05000600, 05000559
Issue date:	08/29/1980
From:	Bielawski A, Mark Miller COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE
To:	NRC COMMISSION (OCM)
References
NUDOCS 8009090233
Download: ML19337A191 (12)

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9-8 UNITED STATES OF AMERICA ^O 79 2 NUCLEAR REGULATORY COMMISSION { Gy[%(.tC 4D p,, g A b blE; g3,,/zy "diC* ,

, A3 BEFORE THE NUCLEAR REGULATORY COMMISSION g '\

In the Matter of: )

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 550-559 et al., ) and 550-600 (CARROLL COUNTY SITE) )

APPLICANTS' RESPONSE TO APPELLANTS' PETITION FOR NRC REVIEW' Submitted on Behalf of:

COMMONWEALTH EDISON COMPANY INTERSTATE POWER COMPANY IOWA-ILLINOIS GAS AND ELECTRIC COMPANY By:

Michael I. Miller Alan P. Bielawski Their Attorneys ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 558-7500 DATED: August 29, 1980.

80090002 33 0 . . . - - . . - - - .

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of: )

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 550-559 et al., ) and 550-600 (CARROLL COUNTY SITE) )

APPLICANTS' RESPONSE TO APPELLANTS' PETITION FOR NRC REVIEW I. Procedural History Relevant to Appellants' Petition on April 5, 1979, Commonwealth Edison Company, Interstate Power Company and Iowa-Illinois Gas and Electric Ccmpany (" Applicants") initiated an application for construc-tion permits for.the Carroll County Station, Units 1 and 2, and requested that the Nuclear Regulatory Commission (" Commission" or "NRC") conduct an early site review and hearing and_ reach an early partial decision on issues of site suitability.

On May 4, 1979, the Commission published a notice announcing that a hearing would be held in respect of Appli-cants' request for an early site review, and authorized the filing of petitions for leave to intervene in this proceeding by any person whose interest may be affected thereby. (44 Fed. Reg. 26229). Citizens Against Nuclear Power ("CANP") ,

James Runyon and Edward Gogol (jointly referred to as " Appellants") ,

filed a " Petition for Intervention" in this proceeding. In its Order entered July 30,.1979, the Atomic Safety and

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Licensing Board (" Licensing Board") scheduled a Special Prehearing Conference to be held September 19, 1979. Prior to the Special Prehearing Conference, Petitioners submitted an Amended Petition For Leave to Intervene, which set forth the fifteen contentions Appellants desired to introduce in the proceedings.

In general, Appellants' contentions relate to the following subject matters: (1) need for power (Contention 1); (2) alternative sources of energy (Contention 2, 6, 12);

(3) Applicants' financial qualifications (Contention 3); (4) overall cost / benefit balance (Contentions 4,11); (5) the cost to rate payers of nuclear power (Contentions 5 and 11);

(6) plant decommissioning (Contantion 10); (7) general con-cerns regarding the ability to design and operate nuclear plants without undue risk to the public health (Contention 13); (8) inadequacy of insurance coverage (Contention 14);

i and (9) general inability to provide emergency evacuation I (Contention 15) . l l

On September 19, a Special Prehearing Conference was held. Thereafter, on October 10, 1970, the Licensing Board entered its " Memorandum of Special Prehearing Con- l l

ference and Order" in which it tentatively diumissed 14 of the 15 contentions submitted by Appellcnts and held in abeyance the determination of the acceptibility of Appellants' final contention. The Licensing Board also granted Applicants F

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and Appellants leave to file briefs in support of contentions previously rejected or tentatively accepted. These briefs were timely filed.

On May 30, 1980, the Licensing Board entered its

' " Memorandum And Order Re: Contentions," wherein it dismissed all of the contentions submitted by Appellants for failure to raise issues which are appropriate in early site suita-bility proceedings. On June 13, 1980, Appellants filed their " Notice of Appeal and Brief in Support of Appeal" with the Atomic Safety and Licensing Appeal Board (" Appeal Board"), urging that the Licensing Board's decision be re-versed. Both Applicants and the NRC Staff filed briefs in support of the Licensing Board's decision.

On July 29, 1980, the Appeal Board affirmed the decision of the Licensing Board.* Appellants have filed a

" Petition For NRC Review" of this decision on the grounds that NEPA, the Counsel on Environmental Quality Regulations, Nuclear Regulatory Commission Regulations and existing case law require a contrary decision. Pursuant to 10 CFR S2.786 (b) (3) ,

Applicants file this response and respectfully request, for the reasons set forth below, that Appellants' Petition For Review be denied.

• Commonwealth Edison Company et al., (Carroll County Site), ALAB-601, Slip Op., July 29, 1980.

e II. Summary of Decision of Which Appellants' Seek Review In their brief to the Appeal Board, Appellants argued that ten of their fifteen contentions raised environmental issues which under the National Environmental Policy Act (42 U.S.C. SS4321 et seq.) ("NEPA") were required to be con-sidered at the early site review proceeding. Appellants' underlying thesis for this argument is that an early site review proceeding constitutes a " major Federal action signi-ficantly affecting the quality of the human environment" and accordingly, the Commission cannot limit the environmental issues consi'ared during the course of these proceedings.

The Appeal Board rejected this argument. It found that early site review proceedings do not constitute " major federal action" and consequently that the environmental issues raised in such proceedings may be limited to fewer than all of the environmental issues needed to be considered under NEPA. And, since none of Appellants' contentions fell within the scope of the limited environmental issues included in the Commission's Notice of Hearing, the Appeal Board concluded that Appellants' petition was properly denied.*

Appellants implicitly agree that their contentions fall beyond the scope of the issues noticed for hearing.

They neither_ challenged this finding before the Appeal

' Board nor do they address the issue in their pending  ;

" Petition for NRC Review."

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III. The Appeal Board's Decision Is Correct In their " Petition For NRC Review" Appellants only assert that the Appeal Board incorrectly concluded that an early site suitability proceeding is not a " major federal action" requiring a full NEPA environmental review.

The Appeal Board's conclusion was entirely proper.

As the Appeal Board aptly stated: "An early site review does not, of itself, amount to ' major Federal action significantly affectinglthe quality of the human environment.' It neither does nor can authorize any work on the site which might pro-duce environmental effects. In order for such work to commence,'the applicant must have in hand either a construction permit or a limited work authorization. Neither of those documents can issue unless and until a full environmental review has been undertaken and completed by both the Staff and the Licer. sing Board." ALAB-601, supra at 13. The Appeal Board s. decision is entirely consistent with both the NRC regulaticns and the Commission's statement of policy issued in connection with the promulgation of the early site review regulations.

The early_ site suitability proceedings as presently

. designed further the goals of NEPA by eliminating " wasteful expenditures of both time and money...by alerting the ap-plicant promptly to the need to find a better location for

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4 its' plant."* Appellants would have this Commission require premature findings.on issues whose resolution, in all like-lihood, may not remain viable for any significant period of time, and which have no specific bearing upon the suitability of a particular site. Yet the early site review regulations, j

and the commission's Notice of Hearing in this proceeding, were carefully drafted so as to limit the adjudication of issues which are directly related to the site and which are not likely to change significantly with the passage of time. Appellants' failure to submit contentions which fall

within the scope of those issues mandates the denial of their Petition.

IV. The Commission Should Not Grant Appellants' Petition Appellants assert that the Commission should exercise its discretion and grant review on the grounds that the Petition involves "an important matter that could signi-L ficantly effect the environment, public health and safety l and involves an extremely important procedural' issue". To 5 the contrary, no aseful purpose would be served by granting l~ Appellants' request. .The issues raised in this Petition were addressed and settled at the time the Commission adopted the regulations governing early site review proceedings.

. The'Appehl Board's interpretation that the Commission is

ALAB-601, supra at 14. (Quoting language from Potomac Electric Power Co.~(Douglas Point Nuclear Station, p Units 1 and 2), ALAB-277, 1 NRC 539, 546 (1975) which decision was specifically alluded to by the Commission iH' in. connection ~with-its promulgation in 1977 of early

site; suitability-review regulations. See 42 Fed. Reg.

22882- (May. 5, 1977) ) .

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t authorized to specify and limit issues to be considered during the course of an early site review is entirely con-sistent with the Commission's regulations and with NEPA. A contrary interpretation would effectively render the early site review' regulacions useless.

The thrust of Appellants' position is simply that they do.not agree with the purposes for which the Commission promulgated the early site review regulations. Appellants seek, by way of this Petition For Review, to have the regulations interpreted in a manner which is totally inconsistent with these purposes and the clear language of the regulations.

Yet, they have provided no basis in law or policy for the adoption of such an interpretreion.

WHEREFORE, for the reasons stated above Applicants i

respectfully request that the Commission deny Appellants'

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Petition For Review.

DATED: August 29, 1980.

Respectfully submitted, HLh pKL(ka )

Michael-L. Mi)ler V~ '

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• ks m Alad P. Bielawski Attorneys for Applicants

ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 558-7500

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of: )

)

COMMONWEALTH EDISON CO. ) Docket Nos. 550-559 et al., ) and 550-600 (CARROLL COUNTY SITE) )

CERTIFICATE OF SERVICE I, Alan P. Bielawski, one of the attorneys for Commonwealth Edison Company, et al., certify that copies of

" Applicants' Response To Appellants' Petition For NRC Review" have been served in the above-captioned matter on all parties on the attached service list by United States mail, postage prepaid, this 29th day of August, 1980.

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Alah-P. Bielawski DATED: August 29, 1980.

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, Alan S. Rosenthal, Chairman Dr. John H. Buck Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board -Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

-Thomas S. Moore John F. Wolf, Esq., Chairman Atomic Safety & Licensing 3409 Shepherd Street Appeal Board Chevy Chase, Maryland 20015 Washington, D.C. 20555 Mr. Glenn O. Bright Mr. James C. Schwab Atomic Safety and Licensing Board State Coordinator U.S. Nuclear Regulatory Commission Iowa Public Interest Research Washington, D.C. 20555 Group, Inc.

36 Memorial Union Iowa State University Ames, Iowa 50010 Dr. Robert L. Holton Nancy J. Bennett School of Oceanography Assistant Attorney General Oregon State University Environmental Control Division Corvallis, Oregon 97331 188 West Randolph, Suite 2315 Chicago, Illinois 60601 Thomas J. Miller Mr. Jim Dubert <

Attorney General of Iowa c/o Iowa Socialist Party I State Capitol Complex 2801-1/2 West Stre'et Des Moines, Iowa 50319 Ames, Iowa 50010 l

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Mr. John W. Cox, Jr. Atomic Safety and Licensing Jo Daviess County'Ad Hoc Committee Board Panel on Nuclear Energy Information U.S. Nuclear Regulatory Commission 906 Campbell Street Washington, D.c. 20555 Galena, Illinois 61036 Atomic Safety & Licensing Appeal' Paul A. Fuerst Board Panel Dubuque Fellowship of Reconciliatic U.S. Nuclear Regulatory Commission 809 Dodge Street Washington, D.C. 20555 Dubuque, Iowa 52001 Docketing and Service Section Richard horm, President Office of the Secretary j Environmental Coordinating U.S. Nuclear Regulatory Commission Organization, Inc.

Washington, D.C.' 20555 Dubuque, Iowa 52001 l

Ms. Nettie Post Thomas J. Sorg, Director The Catholic Worker Carroll County Environmental 382 East 21st Street Coalition Dubuque, Iowa 52001 305 West Cole Mount Carroll, Illinois 61053 l

Mr.-Richard Goddard Edward Gogol Mr. Steven Goldberg 6105 West Winthrop Office of the Executive Legal- Chicago, Illinois 60660 Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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.. Mr. J. Larry Priske James L. Runyon 503 Division 1316 - Second Avenue Galena, Illinois 61036 P.O. Box 307 Rock Island, Illinois 61201 Mr. Jan L. Kodner Comm. John F. Ahearne, Chairman 230 West Monroe Street U.S. Nuclear Regulatory Commission Chicago, Illinois 60606 Washington, D.C.. 20055 Commissioner Victor Gilinsky Commissioner Peter A. Bradford U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Commissioner Joseph M. Hendrie U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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