ML20005A436
| ML20005A436 | |
| Person / Time | |
|---|---|
| Site: | 05000471 |
| Issue date: | 06/17/1981 |
| From: | Dignan T, Gad R, Lewald G, Stowe W BOSTON EDISON CO., ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| LBP-81-3, NUDOCS 8106300326 | |
| Download: ML20005A436 (22) | |
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before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of )
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BOSTON EDISON COMPANY, e_t al.
) Docket No. 50-471
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(Pilgrim Nuclear Generating )
Station Unit 2) )
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JUN 2 9198W q BRIEF OF APPLICANTS IN uusa8m"'uesus -
OPPOSITION TO EXCEPTIONS 9 W-TAKEN BY INTERVENORS /
g to GEORGE H. LEWALD THOMAS G. DIGNAN, JR.
R. K. GAD III Ropes & Gray 225 Franklin Screet Boston, MA 02110 WILLIAM S. STOWE I
Boston Edison Company 800 Boylston Street Boston, MA 02199 Counsel for the Applicants pg/%
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t TABLE OF CONTENTS .
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Introduction . . . . .. . . . . . . . . . . . . . . .1 PART ONE - EXCEPTIONS OF MWF . . . .. . . . . . . . . . .2 PART TWO - EXCEPTIONS OF THE COMMONWEALTH . . . . . . . . 3 Introduction . . . . . . . . . . . . . . . . . . . . 3 Argument . . . . . . . . . . . . . . . . . . . . . .4 I. IT WAS NOT ERROR FOR THE LICENSING BOARD NOT TO REQUIRE CLASS 9 ANALYSES OF THE VARIOUS SITES . . . . . . . . . . . . 4 A. It was not Error not co Require Class 9 Analysis Because no Final Cost / Benefit Analysis had Been Done . . . . . . . . . . . . . . . . . 4 S. No "Jpecial Circumstances" of the Type Contemplated by the IPS are Presented by This Case . . : ... . 4
- II. THE LICENSING BOARD COMMITTED NO ERROR BY REACHING CONCLUSIONS AS TO SITE SUITABILITY AND THE COST / BENEFIT ANALYSIS PRIOR TO THE HEARING ON EMERGENCY PLANNING; AND, IF ERROR WAS COMMITTED, IT WAS HARMLESS . . . . . . . . . . . . . . . . . .7 PART THREE - THE CLEETONS' EXCEPTIONS . . . . . . . . . .8 EXCEPTION NO. 1 . . . . . . . . . . . . . . . . . . .8 EXCEPTION NO. 2 . . . . . . . . . . . . . . . . . . .8 EXCEPTION NO. 3 . . . . . . . . . . . . . . . . . . .9 EXCEPTION NO. , . . . . . . . . . . . . . . . . . . . 10 EXCEPTION NO. 5 . . . . . . . . . . . . . . . . . . 10 EXCEPTION NO. 6 . . . . . . . . . . . . . . . . . . . 11 EXCEPTION NO. 7 . . . . . . . . . . . . . . . . . . . 11 EXCEPTION NO. 8 . . . . . . . . . . . . . . . . . . 12 c -
m a
Pagg EXCEPTION NO. 9 . . . . . . . . . . . . . . . . . .
12 EXCEPTION NO. 10 .. . . . . . . . . . . . . . . . . 13 - .
EXCEPTION NO. 11 . . . . .. . . . . . . . . . . ' . . 14 EXCEPTION NO. 12 . . . . . . . . . . . . . . . . . . 15 EXCEPTION NO. 13 . . . . . . . . . . . . . . . . . . 16 EXCEPTION NO.'14 . . . . . . .. . . . . . . . . . . 16 EXCEPTION NO. 15 . . . . . . . . . .. . . . . . . . 17 EXCEPTION NO. 16 . . . . . . . . . . . . . . . . . . 18 EXCEPTION NO. 17 . . . . . . . . . . . . . . . . . . 18 Other Matters . . . . . . . . . . . . . . . . . . . . 19 20
-CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . .
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TABLE OF AUTHORITIES Page(s)
Cases Consolidated Edison Co. of New York (Indian Point Station, Unit 2),
ALAB-159, 6 AEC 1001 (1973) . . . . . . . . . . . . 15 Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-270, 1 NRC 473 (1975) . . . . . 2 Gulf States Utility Company (River Bend Station, Units 1 & 2),
ALAB-444, 6 NRC 760 (1977) . . . . . . . . . . . . 9 Illinois Power Co. (Clinton Power Station, Units 1 & 2), ALAB-340, 4 NRC 27 (1976) . . . . . . . . . . . . . . . . . . 2, 3 N.E. Coalition on Nuclear Pollution v.
NRc, 562 F.2d 67 (1st Cir. 1978) . . . . . . . . . 19 Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB'459, 7 NRC 179 (1978) . . . . . 2 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977) . . . . . . . . . . . . . . . 19 Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-349, 4 NRC 235, vacated, CLI-76-17, 4 NRC 451 (1976) . . . . . . . . . . . . . . . . . 4 Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-587, 11 NRC 474 (1980) . . . . . . . . . . . 6 Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-573, 10 NRC 775 (1979), vacated in part, CLI-80-8, 'l NRC 433 (1980) . . . . . . . 15 Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B and 2B),
ALAB-409, 5 NRC 1391, reconsid. denied, ALAB-418, 6 NRC 1 (1977). . . . . . . . . . . . . . 5 (iii)
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Vermont Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Power Station),
ALAB-229,'8 AEC 425, reversed, CLI . 40, 8 AEC 809 (1974) . . . . . . . . , . ...... . Ju2 Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense-Council, 435 U.S. 519 (1976) . . . ......... .. . 13 Regulations.
2 10 CFR S 2.758 . . . . . . . . . ..........
10 CFR S 2.762(b) . . . . ....... .... . 15 10 CFR 50, App. I, 5 II-D ........... .. 2 Miscellaneous Interim Policy Statement, issued June 13, 1980, 45 F.R. 40101 . . . ...... .. .... . 3, 4, 6 e
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4 UNITED STATES OF AMERICA NUCLEAR. REGULATORY COMMISSION l be fore - the ATOMIC SAFETY AND LICENSING APPEAL BOARD
) i In the Matter of )
)
BOSTON EDISON COMPANY, et al. ) Docket No. 50-471
) .
(Pilgrim Nuclear Generating )
Station Unit 2) )
-)
BRIEF OF APPLICANTS IN .
OPPOSITION TO EXCEPTIONS TAKEN BY,INTERVENORS .
Introduction Herein is the brief of the applicants with respect to the exceptions taken "" the intervenors in this matter to the Partial Initial Decision (PID) rendered on February 2, 1981, by the Atomic Safety and Licensing Board. LBP-81-3, 13 NRC The PID purports to dispose of all issues before the
. Licensing Board with exception of the so-called " emergency planning" and "TMI-2" issues. Exceptions were taken to the PID by the Massachusetts Wildlife Federation (MWF); the Commonwealth of Massachusetts (Commonwealth) and Alan R. and
- Marion W.LCleeton (the Cleetons).
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As required this brief is' directed to each of the appel-lant's briefs, as opposed to che exceptions. See Illinois Power Co. ~(Clinton Power: Station, Units Nos.1 & 2), AI AB-340, 4 NRC 27, 52 at n.39 (1976). Exceptions to the extent not e
briefed, if any, have been disregarded. E.g., Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-270, 1 NRC 473 (1975);
Public Service Company of Indiana (Marble Hill Nuclear Generat-ing Station, Units 1.& 2), ALAB-459, 7 NRC 179, 203 at n.66 (1978).
PART ONE - EXCEPTIONS'0F MWF The brief of MWF apparently raises but a single issue, to wit, the validity of 10 CFR 50, App. I, 5 II-D. It is argued that this regulation is unconstitutional, in violation of the Administrative Procedure Act and the Atomic Energy Act, and ultra virem the NRC. MWF Brief at 9. The short, complete and definitive response to MWF's contention is that this ground of.
appea,1 to this Appeal Board is not open to MWF given the pro-visions of 10 CFR $ 2.758.
1 On Page 15 of its brief MWF raises the issue of whether the Board erred by not making findings under the " man-thyroid rem" critecion of the cited regulation. However, no substan-tive error requiring reversal is claimed; indeed, the exist-ence of such error is expressly disavowed. MWF Brief at 15-16.
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PART TWO - EXCEPTIONS OF THE COMMONWEALTH Introduction The brief of the Commonwealth, as stated therein, Comm.
Br. at 6-7, makes two contentions of error.2 First, it is argued that as part of its MEPA review, the-Staff should have performed a Class 9 accident analysis for.the Pilgrim 2 and the various alternate sites. It is argued in support of this contention'that there exist special circumstances in this case which require the issue to be gone into under the rules set out in the Interim Policy Statement issued by the Commission on June 13, 1980, 45 F.R. 40101. (Hereinafter referred to as "the IPS".) The specific special circumstances alleged are (1) a superficial treat-ment of' demographic considerations ut the primary site by the Staff and (2) "high population densities, irregular population distri-butions and other unique site characteristics" of the primary site.
It is further argued that when an FES has been prepared but the final cost / benefit balance has not yet been struck consideration of Class 9 accident consequences srould not be precluded. The Commonwealth's second contention is that, absent resolution of the Commonwealth's concerns pertaining to emergency planning feasi-bility "it waJ premature and erroneous for the [ Licensing] Board both to conclude that the [ Pilgrim 2] site was suitable for the construction and operation of a nuclear reactor and to strike the cost / benefit balance mandated by NEPA." Comm. Br. at 7 The Commonvaalth's contentions do nc*. track the exceptions with any degree of exactitude. However, as directed in ALAB-340, sapra, we direct -the arguments herein to '.he argument made in the brief which we treat as the definitive cxplication of what was intended to be raised by the exceptions.
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9 Argument I. IT WAS NOT ERROR FOR THE LICENSING BOARD NOT TO REQUIRE CLASS 9 ANALYSES OF THE s VARIOUS SITES A. It was not Error not to Require Class 9 Analysis Because no Final Cost / Benefit Analysis had Been Done Because it is. subject to more rapid analysis, we deal with the Commonwealth's second argument in support of a requirement of Class 9 analyses first. At Pages 38-45, the Commonwealth argues at length that the NRC should have extended the provisions of the IPS to Pilgrim 2 and all other plants which, on the date the IPS issued, had had issued an FES but were still awaiting
' Initial Decisions (and, thus, cost / benefit analyses) of the Licensing Board 4 Prescinding from the, question of the wisdom or unwisdom of the Commission's decision in this respect, the IPS is binding on this Board, see, e.g. , Public Service Company of New' Hampshire (Seabrook Staclon, Units 1 and 2), ALAB-349, 4 NRC 235, vacated other grounds, CLI-76-17, 4 NRC 451 (1976), and is disposi-tive of the issue.
B. No "Special Circumstances" of the Type Contemplated by the IPS are Presented by This Case In its brief, the Commonwealth, through the artful use of ellipsis, states that the IPS directs that in cases such as that at bar, the change in policy announced in the IPS "should not be considered sufficient grounds for onening, reopening or expand-ing any previous or ongoing proceeding, ' absent a snowing of.-. . special~ circumstances'." Comm. Br,. at 17 (Ellipsis
I in original of Commonwealth's Brief.) The Commonwealth then makes a number -of a'guments to the effect ' that "special cir-cumstances" exist so-that the "special circumstances test" under the IPS is met. The word artfully excised is "similar".
NRC authorized reopening or expansion when "similar special cir-cumstances" were extant. 'The word "similar" refers back to "special circumstances where Class 9 risks have been considered by the Staff, as described above". (Emphasis added.) " Described-above" were these cases: (1) The Clinch River Breeder Reactor Plant, "a liquid metal cooled fast breeder reactor very differ-ent from the more conventional light water reactor plants for which the safety experience base is much broader"; (2) Perryman, a case where the Staff's demographic guideline values were ex-ce'eded; and '(3) the OPS floating plant , with the potential of serious consequences associated with water pathways if the core were to melt into the water body in which the plant was floating.
Pilgrim 2 does not involve a new kind of plant like the LMFBR or new siting concept like the floater. Unlike Perryman, the site did not " trip" the Staff's guideline values. Nor are any of the "special circumstances" or allegedly " unique" site features described by the Commonwealth "similar" to these three truly special cases. Further, the IPS did nothing to vitiate the rule 3 Compare Tennessae Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 15 and 2B), ALAB-409, 5 NRC 1391, 1395, recons 3d.
denied, ALAB-418, 6 NRC 1 (1977). "[W]e should be free to as-sume that, in a brief or other submission, nothing will be excised from a . quoted-passage unless its lack of relevance to the1 question'under discussion is beyond substantial dispute."
. Also note that on ~page 6 of_ its brief ~, the Commonwealth " quotes"
'the IPS without bothering with the ellipsis.
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(at.least:as to. plants where-the FES has issued) that the ques-tion of whether Class 9' events should be taken~up in individual cases is, in the first instance, a matter of discretion lodged in' thel: Staff. Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-587,11 NRC 474, 475 (1980) .
In short,.the Commonwealth's argument is wholly unsound both as a matter of. interpretation of the IPS and with respect
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to the primary jurisdiction over the basic issue.
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II. THE LICENSING' BOARD COMMITTED NO ERROR BY REACHING CONCLUSIONS AS TO SITE SUITABILITY AND THE COST / BENEFIT ANALYSIS PRIOR TO THE HEARING ON EMERGENCY PLANNING; AND, IF ERROR WAS COMMITTED, IT WAS HARMLESS At Pages 45-46-of.its Brief, the~ Commonwealth complains of the Licensing Board's making two findings. These findings, as stated by the Commonwealth are:
"From geographic and population view-points the proposed Unit 2 site is suitable for the location of a nuclear plant of the general type and size proposed by-the applicants." [ Citing PID 1 397.]
and:
"The benefits to be derived from Unit 2 outweigh its costs." [ Citing PID 1 418(5).]
It is argued that these findings-should not have been made until after resolution of the emergency planning and TMI-2
. issues which remain to be resolved. This argument wholly ig-nores 1 384 of the PID which states:
"The costs and benefits of emergency planning and TMI-related issues have not been factored into this cost-benefit analysis. After evidentiary hearings
- on those issues are completed the Board will. reassess its cost-benefit balance."
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It also ignores 1 420 which states:
"A construction permit to build Pilgrim Unit 2 should be issued subject to the above conditions and subject to the favorable completion of hearings on emergency planning and Three Mile Island 2 related issues." (Emphasis supplied.)
i We are at a loss as to what the Commonwealth's complaint is. . -
Had-the Board concluded that, even absent resolution of the emergency planning issues, the costs already outweighed the benefits or that the site was unsuitable, would the Common-wealth have demanded silence so a useless further hearing could be held? All the Board was saying was_"no problem so far." It was permissible, if not obligatory, for it to do'so.
PART THREE - THE CLEETONS' EXCEPTIOMS The Cleetons urge 17 exceptions. We deal with them seriatim. ,
EXCEPTION NO. 1 The Cleetons' first exception is that the Licensing Board '
1 erred in doing a cost / benefit analysis before the " emergency planning" and "TMI-2 issues" hearings were held.
i Set forth above in response to the contentions of the Commonwealth is our analysis as to why this action of the Board, if error, which we believe it is not, was harmless error.
EXCEPTION NO. 2 The Cleetons' second exception is described as "The Board erred in not determining the effect ~ of unsolved generic matters on the issuing of a construction permit." The entire argument in support of this exception is the following: -
" Human, health and safety considerations
- demand 'the elimination of the numerous uncertainties before further construction is allowed. It is unconscionable to go ahead, with generic questions unanswered."
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L We are uninformed as to what, specific generic issues the Cleetons have in mind. The Board did fin'd that the Staff had
' cited the existence of 133 generic issues of which 28 were
' judged by the Staff to be related to plant safety and applicable to Pilgrim 2. The Board fou.'id that the Staff had described each of these issues and concluded that none of the 28 issues was cause for denying the construction permit. PID 11 97-98.
The Cleetons apparently did not quarrel with these findings and in light of that it is difficult to see what error is being urged.
EXCEPTION NO. 3 Exception No. 3 of the Cleetons appears to be a more detailed exception with respect to the general area of " unsolved generic issues". As we read Exception No. 3, the C1e'etens are upset with the fact that the Licensing Board has not investi-gated or made a finding to the effect that all of the unresolved generic issues are in fact solved. The short answer to this contention is that the law simply does not require at the con-
.atruction permit stage that the Staff demonstrate or that the Board find that every generic issue in the field of nuclear licensing that might be applicable to the plant in question is resolved or indeed is certain of resolution. See, Gulf States Utility Company (River Bend Stntion, Units 1 f 2), ALAB-444, t
6 NRC 760, 774-75 (1977). The Staff has cercainly complied with the requirements of ALAB-444 in this proceeding. See,
.SER, Supp. No. 3 post _Tr. 8921, App. C; SER, Supp. No. 4 post Tr.~9944, App. B.- More than this is'not required by applica'ble
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law..
EXCEPTION NO. 4 By their fourth exception, the Cleetons seek reversal of the PID on the basis that the Governor of the Commonwealth of Massachusetts should not have been permitted to participate in the proceedings. In particular, the exception is directed to 1 205 of the PID wherein the Board finds that the Governor's Office of Energy presented certain witnesses. The source of a witness is irrelevant in a proceeding. There was no error.
EXCEPTION NO. 5 -
The fifth exception is "Tr' Board erred in stating that the testimony proffered by Martha Drake was ruled inadmissible on the grounds of relevance." As we understand the complaint of the Cleetons by Exception No. 5, it is that irrelevance was not the reason given at the time of the rejection of Ms. Drake's
- report, but rather "that she did not have the sophisticated equipment which would be necessary to reach thoroughly reliable conclusions from the statistics she gathered." This is followed by a complaint that the government should have carried out the kind of s*.udy which Ms. Drake would like to have carried cut had she had the equipment. We do not understand the exception to quarrel wi:h the ruling that the testimony should be rejected.
l Therefore, there is no reversible error.
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EXCEPTION NO. 6 Exception No. 6 quarrels with the finding of the Board
. that "no evidence was presented to show that the Cleetons would be at any Freater risk'from the doses of radiation resulting from .the routine operation of Unit 2 than are other similarly situat.d members of the public". The Cleetons complain that there was evidence that Mrs. Cleeton is highly at risk from any additional radiation due to her past exposure to many X-rays and the fact that cancer is prevalent on both sides of her family. That may be. The finding in question (PID, 1 267) was that she is at no greater risk than other persons similarly situated, i.e., she is at no greater risk than anyone else who
. has had the same number of X-rays and allegedly has had cancer prevalent on both sides of their family. The findinC is correct and should be sustained. See also PID, 11 266-73 which further supports the finding in 1 267 EXCEPTION NO. 7 The Cleetons describe their seventh exception as one to the effect that "the Board erred in accepting as fact the projections of Staff witness Gotchy on the risk of death from cancer which an individual living on the site boundary for thirty (30) years would incur (Par. 278)." A reading of Par.
278 will indicate that what the Board accepted was witness Gotchy's calculations as to the dose that would be received by a child making certain assumptions with respect to the distance r
from the site boundary and further assumptions as to the source of the1 child's food' and use of an adjacent beach. This is a standard method for making conservative assumptions as to the doses that will be received by members of the..public. There is no basis for saying that the Gotchy calculations were not done correctly or in a conservative manner or that the Board's findings with respect thereto were improper.
EXCEPTION NO. 8 The Cleetons describe their eighth' exception as "the Board erred in allowing unsubstantiated data from the BEIR Report to be admitted into evidence in attempting to establish risks associated with various levels of radiation. (Par. 279)."
It is argued that nowhere in the BEIR Report is there anything having to do with the effect on populations of the exposure to low levels of ionizing radiation from an 1150 megawatt reactor over a thirty-year period. That may be so, but the fact of the matter is that the BEIR Report is used simply to provide a method of analysis and its use is labeled as such in the PID.
It is not error to use calculational methods from learned docu-ments in NRC practice. See Vermont Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Peder Station), ALAB-229, 8 AEC 425, 437, reversed other grounds, CLI-74-40, 8 AEC 809 (1974).
i EXCEPTION NO. 9 Exception No. 9 is described as "the Board erred in allow-ing comparison statistics describing common lifetime risks, all of which, with the exception of cancer, have known avoidance characteristics. (Par. 280)." The argument that follows this exception is essentially one that nuclear power should not be l allowed. -This~ issue has been settled by the Longress. Vermont
' Yankee Nuclear Power Corp.ar. Natural Resources Defense Council, 435 U.S. 519, 557-58 (1978).
EXCEPTION NO. 10 Exception No. 10 attacks the finding that there is a need
-for additional power. The argument is not based on anything in the record,.but is based on the fact that since the closing of the evidentiary record in this matter, Boston Edison Company has indicated that it is continuing to review the feasibility of the Pilgrim 2 project on an ongoing basis. It is also neced that Boston Etison is forming a holding company "in order to diversify into the fields of coal extraction and use and oil and
. gas exploration." In addition, it is noted that in other countries, such as Canada, they live as well as we do on less energy. The Cleetons then argue "if we stop wasting power, there will be no need for additional power." With regard to this last statement, it may well be that there will be a reduc-tion in the need for additional power if people stop wasting power. However, Boston Edison Company and its fellow utilities can only urge and persuade; they have no control over whether people waste power or not. Indeed we doubt very much we would like to live in a society where a " czar" decided how much power everybody should use. If there is anything that is clear in this area, it is that one man's " luxury" is another man's "neces-sity" when it comes to the utilization of energy.
With-respect to the fact that the company is prudently
'looking at the feasibility of Pilgrim 2 on an ongoing basis, no criticism can be leveled at the Company on this basis.
The Company.would be remiss- in its obligations to its stock-holders if it was not constantly reviewing the situation, especially in light of the delay that has encumbered this project- for some time. As to the merits of the contention, the Board found that the need for power had been demonstrated not only on-the basis of an absolute need, but also on the basis of the substitution theory, so-called. PID, 1 387. The Cleetons apparently make no quarrel with the substitution theory
- other than saying that Edison's announced decision to form a holding company allegedly "in order to diversify into fields of .
coal extraction and use and oil and' gas =xploration" indicates that nuclear fission is not the only viable alternative to the Company. The substitution findings in this case were based on the fact that the nuclear option was the cheapest option to oil in New England that was on the shelf ready to go. Nothing Edison is doing at the present time with_ respect to a holding company contravenes or contradicts the conclusion that New England must end its dependency on oil-fired generation.
EXCEPTION NO. 11 The eleventh exception claims error in the conclusion that the applicants are financially qualified. Thers is a bald as-sertion that "there has been no demonstration that BECO is, in
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the current financial climate, able to finance their share of
. Pilgrim.2." 'We are provided with no cites for that proposition, and in the absence of factual citations, it is essentially im-possible to respond to this t/pe of an. argument. See, 10 CFR
$ 2.762(b); Consolidated Edison Co. of New York (Indian Point Station, Unit 2), ALAB-159, 6 AEC 1001 (1973); Public Service Company'of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573,
~10 NRC 775, 786-87 (1979), vacated in part on other grounds, CLI-80-8, 11 NRC 433 (1980). It is next argued that the Massa-chusetts DPU has not made any determination of BECO's capability in this regard. The short answer to this is it is not necessary for the Massachusetts DPU to make such determination in order for this Commission to issue a permit.
EXCEPTION NO. 12 Exception No. 12 claims error in the finding "that 'there are at present no viable alternative energy sources' (Par. 395)."
Again, we are not favored with the raasons why the Cleetons believe this finding to have been in error beyond a reference back to Exception No. 10. It is also clear that the portion of the finding that is quoted is quoted somewhat out of context.
The Board did not conclude that coal, for example, was not viable.
The reference to " alternative energy sources" in the final sen-tence of PID, 1 395 clearly contemplates the more exotic energy sources that are discussed immediately above. The discussion of coal and the reasons for its rejection vis-a-vis Pilgrim #2 are stated earlier in that same paragraph. There was no error.
t EXCEPTION NO. 13 In Exception No. 13, the Cleetons take exception to the
. finding "'. . . from geographic and population viewpoints, the proposed Unit 2' site is suitable for the location of a nuclear plant of-the general type and. size. proposed by the applicants."
Die only_ argument maae in support of this exception 'is as follows:
"The population in this area has about doubled in the last five years and is continuing to increase rapidly. The summer population doubles that, and with thousands of day visitors makes this national seashore most unsuitable for
, another, or any, nuclear plant."
The Cleetons apparently do.not quarrel with the specific find-ings as to the population densities that now exist in the area of relevance and the findihgs with respect to the likely future population densities in the years of reactor operation. In fact the matter of population was fully considered by the Board, PID, 11 132-41, and was rejected as a basis for finding the site un-s uita' ale . This being the case, the exception simply is not well taken on this record.
EXCEPTION NO. 14 The Cleetons urge error in the finding that: "The site
[is] suitable from hydrologic, geologic and seismic viewpoints.
(Par. 397)" This is followed by an argument that consideration of the Cape Ann earthquake (presumably the 1755 Cape Ann earth-quake) and earthquakes which took place in South Carolina, Missouri, Portugal and elsewhere dictate that the plant should 4
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J not txe allowed to be built in Plymouth. Again, the Cleetons apparently do not quarrel with the' geological and seismological findings made in some detail beginning at 1 163 in the PID.
In particular, there is no exception taken to the findings that the proper SSE for Pilgrim 2 is MMI VII at the site producing a ground acceleration with a horizontal component of .2g. PID, 1 168. If there 13 no exception taken to these findings, it is clear that 10 CFR 100, Appendix A, has been complied with and f
that is all that is required by law and the regulations.
EXCEPTION NO. 15 The fifteenth exception by the Cleetons argues that the Board erred in concluding that the " probability of an (air-craft's)' impact on vulnerable portions 'of the site is so small as not to be credible." This is followed by an argument that essentially points out that things that were deemed incredible have occurred. It is then argued that since the incredible can happen, the Pilgrim plant shouldn't be built. Such a view is simply not the law. It is not necessary that the nuclear power plant be designed against the incredible. It is admitted that there is alw&ys a small probability of anything happening, but that is not a probability against which nuclear power plants are designed. There is no exception taken to the various find-ings as to the probabilities involved. Nor is there any excep-tion taken to the concept that the probabilities revealed are l low enough to be properly characterized as incredible. The finding is correct.
V EXCEPTION NO. 16 Exception No. 16 essentially is the same as Exception No. 6, except that instead of being directed specifically to the finding with respect to Mrs. Cleeton, this is taken.to'the finding with respect to the Cleeton family. Our response to Exception No. 6 fully covers the situation, and we are given no reason as to why any different analysis applies to the "Cleeton family" as opposed to Mrs. Cleeton personally.
EXCEPTION NO. 17 Exception No. 17 of the Clertons' states, "With respect to Cleeton Contention B, the Board erred in concluding '. . .
the transport of nuclear materials to and from Unit 2 does not constitute an unacceptable risk to the health and safety of'the public or the intervenors in excess of that engendered by the day-to-day commercial activity on the highways and railroads.'
(Par. 409)"
We are then told that in the midst of the hearings new, more stringent regulations with regard to transportation were promulgated by the NRC and that the Board did not reopen the hearings on this question. Finally, it is stated, "Now we have learned that nuclear materials are and will be traveling on Route 495, which goes right through our town of Franklin, near our home. Many transportation accidents have occurred and will continue to occur. No one knows when such an accident will
-be disastrous."
- u.
T Prescinding-from the question oi? whether it' is accurate to say that many transportation accidents with respect to 4 nuclear waste from commercial power plants have occurred and will continue to. occur, the fact remains that the Cleetons have given us no basis for saying.that there has not been or will not be full compliance with the regulations of this Com-mission and the Department of Transportation as are applicable at this construction permit stage. In the absence of such de-lineation, we are incapable, frankly, of responding to this exception. The exception should be denied as vague.
Other Matters In addition to the foregoing specific exceptions, the Cleetons bring up two other points at the end of their brief.
The first point is the change of administrative judges.
Apparently, the Cleetons do not feel that this was appropri-ate. The short answer to this is that the change of adminis-trative judges has been specifically approved by an appeal board and the U.S. Court of Appeals. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 101 (1977). aff'd. generally and as to this coint in carticular, N.E. Coalition on Nuclear Pollution v. NRC, 582 F.2d 87,99-100 (1st Cir. 1978). The second point apparently raised is that the Licensing Board decision which covered many issues was not a " reasoned decision". We are given no further guidance as to why this is so and, assuming the Cleetons still have standing
e to raise this point, the point is not well taken in light of their failure to give any further expositio1 of the basis for the argument made.
CONCLUSION The exceptions of tha three intervenors should be denied, and the PID should be affirmed.
Respectfully submitted, George H. Lewald Thomas G. Dignan, Jr.
R. K. Gad III George H. Lewald Thomas G. Dignan, Jr.
R. K. Gad III Ropes & Gray 225 vranklin Street B'oscon, MA 02110
. (617) 423-6100 William S. Stowe William S. Stowe Boston Edison Company 800 Boylston Street Boston, MA 02199 (617) 424-2544 Counsel for the Applicants Dated: June 17, 1981
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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the-ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
BOSTON EDISON COMPANY ) Docket No. 50-471
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(Pilgrim Nuclear Generating )
Station, Unit 2) )
)
CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys for the applicants herein, hereby certify that on June 17, 1981, I made service of the within document by mailing copies thereof, postage prepaid, first class or airmail, to:
Andrew C. Goodhope, Esquire - Henry Herrmann, Esqu' ire Room 1045 Chairman Atomic Safety and Licensing Board 50 Congress Street Boston, MA 02109 3320 Estelle Terrace Wheaton, Maryland 20906 Mr. and Mrs. Alan R. Cleeton Dr. A. Dixon Callihan 22 Mackintosh Street Union Carbide Corporation Franklin, MA 02038 P.O. Box Y William S. Abbott, Esquire Oak Ridge, Tennessee 37830 Suite 925 Dr. Richard G. Cole 50 Congress Street Atomic Safety and Licensing Board Boston, MA 02109 U.S. Nuclear Regulatory Commiscion Washington, D.C. 20555 Jo Ann Shotwell, Esquire Assistant Attorney General Patrick J. Kenny, Esquire Environmental Protection Division Edward L. Selgrade, Esquire Public Protection Bureau Deputy hirector Department of the Attorney General Mass, cifice of Energy Resources One Ashburton Place, 19th Floor Boston, MA 02108 73 Tremont Street Boston, MA 02108
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Atomic Safety and Licensing ~ Francis S. Wright, Esqaire Appeal Panel Berman & Lewenberg U.S. Nuclear Regulatory Commission 211 Congress Street Washington, D.C. 20555 Boston, MA 02110 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Chief Librarian Plymouth Public Library North Street Plymouth, MA 02360 Jack R. Goldberg, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard S. Salzman, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory. Commission .
Washington, D.C. 20555 Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- Christine N. Kohl, Esquire Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Thomas G. Dignan. Jr.
Thomas G. Dignan, Jr.
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