ML20010D661

Nuclear Regulatory Commission Issuances.April 1981

ML20010D661
Person / Time
Issue date:	04/30/1981
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V13-N04, NUREG-750, NUREG-750-V13-N4, NUDOCS 8108280444
Download: ML20010D661 (88)

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T NU R EG-0750 Vol.13, No. 4

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NUCLEAR REGULATORY.

i COMMISSION ISSUANCES 1

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Available from NRC/GPO Sales Program Superintendent of Documents Government Printing Office Washington, D.C. 20402 A year's subniption consists of 12 issuet fnr this publication.

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Single copies of this publication j

I are available from National Technical Information Service, Springfield VA 22161 Microfiche nf *ngle copies are available from NRC/GPO Sales Program Washington, D.C. 20555 l

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l Errors in this publication may be reported to Vicki E. Yanez, Division of Technical Information and Docurnent Control, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (301/492-8925).

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NUREG4750 Vol.13, No. 4 Pages 361442 O

NUCLEAR REGULATORY COMMISSION ISSUANCES April 1981 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors Denial (DD), and the Denial of Petitions For Rulemaking (DPRM).

The summaries and headnotes preceding the opinions reported he.ein are not to be deemed a part of those opinions or to have any inde-pendent legal significance.

D epared by the Division of Technical Information and Document Control, Office of Administratio r

U. S. Nue+:ar Regulatory Commission, Washington, D. C. 20555

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CONTENTS Issuances of the Nuclear Regulatory Commission PACIFIC GAS AND ELECTRIC COMPANY G

(Diablo Canyon Nuclear Power Plant, Units I and 2),

Dockets 50-775 01, 50-323 OL

.. 361 ORDER, CLI-81-5, April I,1981 Issuances of the Atomic Saict3 and Ucensing Appeal Boards DAIRYLAND POWER COOPERATIVE (Lacrosse Poiling Water Reactor), Docket 50409 SFP MEMORANDUM AND ORDER, ALAB-638, Apnl 27,1981

.374 HOUSTON LIGHTING & POWER COMPANY, et al.

(South Texas Project, Units I and 2), Dockets 50498 01, 50499 OL MEMORANDUM AND ORDER, ALAB-637, Apnl 16,1981.

.367 issuances of Atomic Safety and Ucensing Boards CONSUMER POWER COMPAST (Big Rock Point Nuclear Plant), Docket 50-155 OLA, (Spent Fn-1 Pool Expansion)

MEMOF DUM, LBP-81-9, April 22,1981

. 377 GULF STATES UTILITIES COMPANT (Blue Hills Station, Units I and 2), Dockets SIN 50-510, STN 50-511 PARTIAL INITIAL DECISION, LBP-81-10, April 28,1981

.382 SOUTH CAROLINA ELECTRIC & GAS COMPAST, et al.

(Virgil C. Summer Nuclear Station, Unit 1), Docket 50395 PARTIAL ORDER FOLLOWING PREHEARING CONFERENCE,

... 420 LBP-81-II, April 30, 1981.

Issuances of the Denials of Petitions for Rulemaking CITIZENS ADVISORY BOARD OF Till METROPOLITAN AREA PLANNING COUNCIL FOR OMAllA, NEBRASKA, AND COUNCIL BLUFFS, IOWA Docket PRM-2-10 DENIAL OF PETITION FOR RULEMAKING, DPRM-81-1,

.... 429 Apnl 20,1981...

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I CONTENTS Issuances of the Nuclear Regulatory Commission 0

PACIFIC GAS AND ELECTR;C COMPAST (Diablo Canyon Nuclear Power Plant Units I and 2),

Dockets %275 OL, %323 OL

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. 361 ORDER. CLI-81-5, Apnl 1,1981 1ssuances o the Atomic Safety and Ucensing Appeal Boards r

DAIRYLAND POWER COOPERATIVE (lacrosse Bouing Water Reactor) Docket S409 SFP

.374 MEMORANDUM AND ORDER, AIAB438, Apnl 27,1981 HL USTON LIGHTING & POWER COMPANY, et al.

Uouth Texas Project, Units 1 and 2), Dockets 50-198 OL, 50-499 OL

. 367 MEMORANDUM AND ORDER, ALAB437, April 16,1981.

Issuances of Atomic Safety and Ucensing Boards CONSUMER POWER COMPANY (Big Rock Point Nuclear Plant), Docket 50-155 OLA, (Spent Fuel Pool Expan., ion)

.377 i

MEMORANDUM, LBP-81-9, April 22,1981.

GULF STATES UTILITIES QMPAST (Blue Hills Station, Units I and 2), Dockets STN 50 510, STN %511

. 382 1

PARTIAL INITIAL DECISION, LBP-81-10, April 28,1981 SOlJTH CAROLINA ELECTRIC & GAS COMPANY, et al (Virgil C. Sammer Nuclear Station, Unit 1), Docket %395 PARTIAL ORDER FOLLOWING PREHEARING CONFERENCE.

.... 420 LBP-81.ll, April 30, 1981 Issuances of the Dentals of Petitions for Rulemaking l

CITIZENS ADVISORY BOARD OF THE METROPOLITAN AREA PLANNING COUNCIL FOR OMAHA, NEBRASKA,

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AND COUNCIL BLUFFS, IOWA

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Docket PRM.2-10 DENIAL OF PETITION FOR RULEMAKING, DPRM-811,

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Cite as 13 NRC 361 (1981)

CLl-81-5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS Joseph M. Hendrie, Chairman Victor Gilinsky Peter A. Pradford John F. Ahearne lii the Matter of Docket Nos. 50-275 OL 50-323 OL PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2)

April 1,1981 Upon its review of a prehearing conference order by the Licensing Board in this proceeding. the Ccmmission issues additional guidance on the litigation of TMI-related issues in licensing procecoings in the following (1) motions for fuel loading and low power testing: (2) reopening ar:as:

evidentiary records (generally); (3) reopening records to address conten-tions alleging TMI-related violations of NRC regulations not addressed in previous Commission policy statements on litigation of TMI-related issues (NUREG-0737 and -0694); and (4) challenges under the Commission's DecewMr 18,1980 Revised Ste.tement of Policy (CLI-80-42,12 NRC 854) that there is insuflicient protection to the public despite compliance with either NRC regulations or TMI-related requirements of NUREG-0737 and

-0604.

NUCLEAR REGULATION COMMISSION: SUPERVISORY ALTIIORITY (ADJUDICAT10NS)

'The Commission has inherent supervisory authority over pc.3 ding adjudications. Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), CLI-77-8,5 NRC 503 (1977).

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ORDER ne Commission has reviewed the Atomic Safety and Licensing Board's Prehearing Conference Order dated February 17, 1981, as well as the underlying papers and oral argument, and determined that additional Commission guidance, consistent with its Revised Statement of Policy, CLI-80-42,12 NRC 854 (1980), needs to be provided on litigation of Three Mile Island (TMI) accident related issues in licensing proceedings. The e

Commission recognizes that this guidance could lead to reconsideration of some of the various rtings contained in the February 17,1981 Order. In providing this guidance the Commission is exercising its inherent supervisory authority over pending adjudications.' See Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), CLI-77-8. 5 NRC 503 (1977).

1. De Board Should Rule Promptly on Motions for Fuel laading ' nd Imw a

Power Testing Pursuant to 10 CFR 50.57(c), the filing of a motion for a partial initial decision on fuel loading and low pow.r testing requires an initial determination by the Licensing Board on whether the esidentiary record camoiled to that point is adequate for such a partial decision.10 CFR '457(c) does not generally contemplate that a new evidentiary reard, based on litigation of new contentions, would be compiled on the motion for fuel loading and low power testing. When the record has bee-dosed but motions to reopen have been filed, the Licensing Board 4 ould decide whether the record must be reopened for new evidsnce directly relevant to the fuel loading and low power licensing request. Decisions on full power issues associated with the motion to reopen could be postponed untillater.

2. He Record Should Not Be Reopened Ab ent a Showing that Significant New Evidence Which Would Affect the Decision is Available As we stated in the Revised Policy Statement, where the evidentiary record on safety issues has beca closed. the record should not be reopened on TMI-related issues relating to either low or full power absent a showing, by the moving prty, of"significant new evidence not included in the record, that materially affects the decision." This is

'The Comnussion is aware of the vanous participants' req 2sts for cerufication or directed l

certification to the Commission regarding the February 17,1981 Preheanng Conference Order.

These motions appeahng an interlocutory ader are not provided for in ts.e Commission's Rules of Practice and are according]y demed.10 CFR 2.730(f). In issumg this Order the l

Commission is exercising its authonty sua sporue. The Union of Concerned Scientists' Request to Participate as Amicus Cunae is similarly denied.

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in accord with longstanding Commission practice. E.g. Kansas Gas &

Electric Co., et al. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320,338 (1978). We emphasize that bare allegations or simple submission of new contentions is not suilicient. Only significant new 9

evidence requires reopening. Of course, in moving to reopen, a party need not supply written testimony ofindependent experts, but is free to g

rely on admissions and statements from applicant and NRC staff and official NRC documents or other documentary evidence.

3. Where A Party Can Adduce Significant New Eiidence Hat an NRC l

Regulation Would Be Violated by Plant Operation, that Contention Should Be Admitted Notwithstanding the Fact that this Matter is Not Addressed in NUREG-0737 and -06N Parties are generally free to raise issues of compliance with NRC regulations, subject to 10 CFR 2.714 specificity a'id lateness requi.s ments, where applicable, and standards for recpening records, where applicable. His holds true for TMI-related issues, and nothing in the Revised Policy Statement affects this. Thus, if a party comes fbrward on a timely basis with significant new TMI-related evidence indicating that an NRC safety regulation would be violated by plant operation, we believe that the record should be reopened notwithstanding that the noncompliance item is not discussed in NUREG-0737 and -0694.

However, the parties are required to make the initial case that significant new evidence is available, not merely make claims to that etrect.

4. Procedures for Arguing that there is Insumcient Protection to the Public Despite Compliance with All NRC Regulations Where the new evidence raises no issue of compliance but rather questions whether there is adequate protection despite compliance with all applicable regulations, a party has two procedural options under the Revised Statement of Policy. First, a party may challenge the sufficiency of an item in the NUREG documents. However, the scope of the inquiry under this option is limited to the particular safety concerns that prompted the specific " requirements" in NUREG-0694 and -0737. What we had in mind was allowing a party to focus on the same safety concern that formed the basis for the NUREG require-ment and litigate the issue of whether the NUREG " requirement" is a sufficient response to that concern.2 Contentions which address a

'For example, the item I.A.I.3 of NUREG-0737, which deals with shin mannmg and impoacs additional requirements above and beyond 10 CFR 50.54(k), deals with the safety concern that 363 r

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safety concern not considered in NUREG-0694 and -0737 shall not be entertained as challenges to the sufliciency of those requirements.

Second, where the contention or new evidence cannot be associated with a safety concern identified by NUREG-0694 or -0737,10 CFR O

2.758 may be used to bring the matter to the Comndssion's attention without prior litigation on the merits. In this situation, a party must first make a prima facie case to the Board that application of a givein rule in this particular proceeding would not serve the purpose for which that rule was adopted. If the party is able to make this case, the Commission will determine whether that rule will be waived or an I

exception made from its requirements in that case.

We note that quite apart from the procedures of 10 CFR 2.758, parties are always free to bring to the attention of the Commission any matter within itsjurisdiction. This course would be available to a p' arty e,en where a Board had ruled that the party had not made the prima facie case required by 10 CFR 2.758. i ruh cases, the Commission is under no obligation to respond to the matter.

In addition, of course, the specificity and lateness requirements of 10 CFR 2.714 must be satisfied, where applicable, and the standards for reopening records must be satisfied, where app'icable. Hus, to have a late filed contention admitted, the following factors must be considered:

(i) Good cause. if any, for failure to file on time.

(ii) He availability of other means whereby the petitioner's interest will be protected.

(iii) The extent to which the petitioner's participation may reason-ably be expected to assist in developing a sound record.

(iv) The extent to which the petitioner's interest will be reprewnted by existing parties.

(v) The extent to which the petitioner's participation will broaden the issue or delay the proceedmg.

In addition, the proponent of reopening the record must present significant new information, a requirement which could be satisfied by there must be adequate expertise in the control room at all times to cepe with any accident or unexpected event. The concern does not relate to the general design of the control room or to the need for specific control room equipment.'nus, a contention which purports to challenge the sufficiency of the shin manning requirement v ould have to be based on the argument that this requirement was inadequate to deal with control room staffing, and a challenge to Item I.A.I.3 which focused on control room design and equipment would not be permissible.

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reference to new information in NUREG4737. Finally, it must be shown that the new information would have caused a different result had it been considered originally.

It is so ORDERED.

For the Commission SAMUEL J. CHILK Secretary of the Commission Dated at Washington, D.C.

the 1st day of April,1981.

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Cite as 13 NRC 367 (1981)

ALAB-637 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICF.NSING APPEAL BOARD I1 Administrathe Judges-Richar i S. Salzman, Chairman

. r. John H. Buck Christine N. Kohl Docket Nos. 50-498 OL in 'ne Matter of 50-499 OL HOUSTON LIGHTING & POWER COMPANY, et al.

(South Texas Project, Units April 16,1981 1 and 2)

He Appeal Board dismisses intervenors' impermissible interlocutory appeals and, treating their filings as reques:s for directed certification, denies discretionary interlocutory review of the 1,icensing Board's sched-uling order and specification of issues to be considered at an expedited hearing on quality assurance and quality control matters in this operating licensing proceeding.

RULES OF PRACTICE: INTERLOCUTORY APPEALS De Commission's Rules of Practice prohibit appeals of interlocutory licensing board rulings.10 CFR 2.720(f).

i RULES OF PRACTICE: DISCRETIONARY IN~TERLOCUTORY REVIEW Requests for discretionary interlocutory review via directed certification pursuant to 10 CFR 2.718(i) and 2.785(bXI) are granted infrequently and then only when a licensing board's action either (a) threatens the party adversely afTected with immediate and serious irreparable harm whici could not be remedied by a later appeal, or (b) afTects the basic structure of the proceedir.g in a pervasive or un ual manner. Public Service Electric an /

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Gar Co. (Salem Station, Unit 1), ALAB-588,1I NRC 533,536 (1980), and cases cited there.

RULES OF PRACTICE: SCIIEDULING OF llEARINGS An appeal board generally will examine a licensing board's scheduling decision only if it F claimed that the licensing board abused its discretion by setting a hearing schedule that deprives a party ofits right to procedural due process. Public Service Co. ofIndiana. Inc. (Marble ? ' Station, Units I and 2), ALAB-459,7 NRC 179,188 (1978).

RULES OF PRACTICE: DISCRETIONARY INTERLOCUTORY REVIEW A li. ensing board's specification ofissues to be heard, IJ e its rejection of some (but not all) of a party's contentions, is a procedural matter not warrai ing interlocutory review absent exceptional circumstances.

RULES OF PRACTICE: APPELLATE REVIEW Partit: initial decisions that dispose of significant issues but do not yet authorize construction activity are appealable as of right. Houston Ughting and Power Co. (Allens Creek Station, Unit.,1 and 2), ALAB-301,2 NRC 853,854 (1975).

APPEARANCES Mr. Lanny Sinkin, Austin, Texas, for intervenors Citizens Concerned About Nuclear Power, Inc., and Citizens for Equitable Utilities.

Messrs. Jack R. Newman, Maurice Axelrad, and Ahin IL Gutterman, Washington, D. C., and Messrs. Finis E. Cowan and

'Ihomas B. Iludson, Jr., Houston, Texas, for applicants Houston Lighting & Power Company, et al.

l Mr. Jay M. Gutierrez for the Nuclear Regulatory Commission staff.

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MEMOHANDUM AND ORDER L

Intervenors Citi;.ns Conu.rned About Nuclear Power, Inc. (CCANP),

and Citizens for Equitable Utilities (CEU) havejointly f~ led two pleadings, each requesting interlocutory review of portions of the Licensing Board's April 1,1981, nird Prehearing Conference Order. He first, styled a

" Notice of Appeal," objects to the Licensing Board's denial ofintervenors' motions for a 90-day postponement of the scheduled hearing date in this case.' The second pleading is a " Notice of Appeal and Request for Directed Certification" of the Licensing Board's specification ofissues set forth in its Second Prehearing Conference Order (December 2,1980) and reaflirmed in its Hird Prehearing Conference Order.2 Intervenors argue that they established " good cause" to warrant a substantial delay in the start of the hearing. Specifically; they pdnt to (1) the extended illness of Mrs. Pergy Buchorn, daribed as "the only representative of [CEU) with the expertise and experience to serve as intervenor in these proceedings;" (2) the unexpected withdrawal af CCANP's legal counsel two weeks before the Hird Prehearing Conference; and (3) the unavailability during May of CCANP's representative (Mr.

Lanny Sinkin). Intervenors contend that the Licensing Board's refusal to delay the hearing in view of these factors " adversely impacts the goal of a complete record in the initial hearing by restricting the ability of intervenors to prepare for and participate in the hearing." Hey aso assert that the Board gase too much weight to hearing room availability and personal scheduling conflicts in devising the hearing schedule.

In their second pleading, intervenors argue that th. Board's delineation of the issues under consideration in the upcoming initial hearing denies them certain relief"specifically mandated" by the Commission in response to a prior request of intervenors. See CL1-80-32,12 NRC 281 (1980). In that proceeding, intervenors requested a hearing on an order issued by the Commission's Director of the Office of Inspection and Enforcement, directing applicants to show cause why safety-related construction activities at South Texas should not be halted pending modification of certain operations and procedures. He Commission denied intervenors' hearing l

'Intervenors later suggested a 30 day postponement as an alternative.Tr. 379,385. Th_ beanng is scheduled to commence May 12,1981.

3Although intervenors address this pleading to the Commission, under the Rules of Practice, requests of this nature fall within ourjunsdiction. See 10 CFR 2.718(i),2.785(bXI); Cauwners Power Ca (Midland Plant, Uruts I and 2), AIAB-382,5 NRC 603,604 n.1 (1977).

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request b'at granted them the alternative relief of litigating the " quality assurance / quality control" (QA/QC) issues they raised in this operating license adjudication. The Commission further ordered the Board assigned to the licensing proceeding te expedite the hearing on the quality control-related issues and to issue an early, separate decision on this matter. Id at 291-292. Pursuant to that order, the Licensing Board held a prehearing conference and formulated the QA/QC issues that would be the focus of the expedited hearing. Second Prehearing Conference Onder, Attachment; see also Third Prehearing Conference Order at 8-11. Intenenors contend that the issues as framed by the Licensing Board improperly deal with applicants' alleged remedial activities. They assert that the relief that the Commission granted them permits consideration in the separate, expedited hearing ofonly the applicants'part actions.

Both the NRC staff and the applicants oppose intervenors' requests, primarily on the ground that intervenors have failed to show the

" exceptional" circumstances necessary to warrant interlocutory resiew of either ruling.

IL The Commission's Rules of Practice prohibit appeals of interlocutory licensing board rulings such as those involved b:re.10 CFR 2.730(f). We will therefore treat both ofintervenors' filings as requests for discretionary interlocutory review sia directed certification. See 10 CFR 2.718(i) and 2.785(b)(1). Such regaests, however, are granted infrequently "and then only when a licensing ooard's action either (a) threatens the party adversely affected with immediate and serious irreparable harm which could not be remedied by a later appeal, or (b) affects the basic structure of the proceeding ia a pervasive or unusual manner." Public Senice Electric and Gas Co. (Salem Station, Unit 1), ALAB-588, II NRC 533,536 (1980), and cases cited. Intervenors have not satisfied these criteria as to either of their requests.

A.

Intervenors ask us to review and overturn the Licensing Board's denial of a postponement of the QA/QC hearing. But as we have stated previously, we enter the scheduling thicket cautiously. We are inclined to do so only to entertain a c~ im that a board abused its discretion by setting a m

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hearing schedule that deprives a party of its right to procedural due process.

Public Senice Ca of Indiana, Inc (Marble Ilill Station, Units 1 and 2),

ALAB-459, 7 NRC 179, ISS (19/8). See also Public Senice Ca of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-295,2 NRC 668,669-670 (1975). Moreover, we are particularly loath to interfere with a licensing board's denial of a request to delay a proceeding where, as here, the Commission has ordered an expedited hearing. In such a circumstance, there must be a compelling demonstration of a denial of due process or the threat of immediate and serious irreparable harm in order to invoke our discretionary review.

Intervenors' arguments do not rise to this level. They contend that, absent at least a 30-day extension of the hearing date,) their ability to prepare for and participate in the initial hearing will be " seriously restricted." As noted above, they attribute their need for additional time to the illness of CEU's representative, the withdrawal of CCANP's counsel, and the unavailability of CCANP's representative to prepare for the May hearing. Yet balanced against these considerations are the following facts:

(1) intervenors liave known since November 19,1980, that de hearing would commence in early May 1981 and that alterations to the schedule would be disfavored (Tr. 322-323; Second Prehearing Conference Order at 5-7); (2) intervenors have not provided any specific explanation as to wl y no other members of their organizations are available or able to participate in the upcoming hearing:* (3) the parties will have had almost two full months between the Board's oral ruling (at the Third Prehearing Confer-ence) denying the postponement and the first day of hearing; and (4) perhaps most important, the Commission ordered this hearing to be expedited almost seven months ago.

We cannot say that the Licensing Board abused its discretion or denied intervenors due process in weighing these competing interests and devising a schedule that necessarily takes account of other exigencies (such as hearing room andjudge availability).5 Intervenors have failed to show tliat 5See note I,.npra

'In this regard, we note that CCANP recently filed with us a pleading in another pending

" appeal" mvolving South Texar, signed by a representative other than Mr. Sinkin and shouwg an attorney "of counsel" (CCANP's " Opposition to NRC's

• Notice of Appeal and tist of Exceptions' and Cross-Appeal-March 24,198t"). In addition, Mrs. Buchorn of CEU stated at the T1urd Preheanng Conference that she would do "everything in (her] pomer to be ready by

[the May 12 heanng date)." Tr. 380.

FIbe Board also made numerous efTorts to accommodate intervermes* needs in setting the hearing schedule. Tr. 389, 391, 393-3 %. Moreover, while denymg a delay in the beanng, it granted intervenors' requests to file its witness hsts out of time.11urd Prebcanng Conference Order at 6.

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the Board's hearing schedule will either cause them "immediate and serious irreparable harm" or affect "the basic structure of the proceeding in a pervasive or unusual manner." Under these circumstances, our intervention in this scheduling dispute is r.otjustified.

B.

We must similarly deny ir.tervenors' request for review of the Licensing Board's specification of issues for consideration in the QA/QC hearing.*

This is yet another procedt.ral matter within the Licensing Board's discretion, not warranting out interference absent a showing of the exceptional circumstances specified in Salem, supra. And again, intervenors have failed to demonstrate such circumstances exist here.

As we understand intervenors' argument, their principal objection to the issues formulated by the Board is tlut they assertedly cover more (and new) quality control-related matters than the Commission intended in its September 1980 order. Intervenors contend that this action thus " denies

[them] relief specifically mandated by the Commission in said Memoran-dum and Order." Beyond this generalized assertion, however, intervenors fail to explain exac:ly how the Board's statement ofissues results in such a denial of relief and consequently "immediate and serious irreparable harm."

Assuming arguendo that the Board's issues do broaden the intended scope of the hearing ordered by the Commission,7 we do not see how this denies intervenors, either in fact or in effect, the separate, expedited hearing on their QA/QC issues. The Licensing Board has not issued any final ruling on applicants' QA/QC program, and intervenors will be free to pursue their related contentions and issues at the hearing. His is neither immediate nor serious irreparable harm. Moreover, we perceive no pervasive or unusual efTect on the basic structure of the hearing as a result of an alleged broadening of the QA/QC issues.

Intervenors' request for review of the Board's delineation ofissues in this special hearino, is analogous to a request for review of a licensing bo ird's rejection of some, but not all, of a party's contentions advanced in connection with its petition to intervene. As we pointed out in Texar Utilities Generating Co. (Comanche Peak Steam Electric Station, Units I and 2), ALAB-599,12 NRC 1,2 (1980), this type of appeal "is unauthorized l

by the Commission's Rules of Practice" since it does not dispose of the

• The Licensing Board expressly demed intervenors' motion to certify this question to us. Third Preheanng Conference Order at i 1.

'In view of our demal of the request for directed ceruficaton we express no judgment on whether the Board's ruhng is consistent with the Commissa

.'s Order.

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petition in its entirety. See 10 CFR 2.714a. But, as we also noted, a party aggrieved by such board action can raise the rejectior of these contentions on appeal from the board's initial decision.12 NRC at 2 n.l. The same is true in this cas.:. Ifindeed the Board's specification ofissues is at odds with the Commission's direction and ultimately causes harm to intervenors, they will have every opportunity to challenge the Board's partialinitial decision

- issued afler the hearing - on appeal.'

1 In sum, intervenors have failed to demonstrate - and we are unable to find - the exceptionai circumstance: that would warrant the exercise of discretionary review, via directed certification, of the two piocedural rulings challenged here. Accordingly, intervenors' appeals are disnissed and their request for directed certification is denied '

It is so ORDERED.

FOR THE APPEAL BOARD C. Jean Bishop Secretary to the Appeal Board 8 Houston Ughtmg d Peer Ca (Allens Creek Station. Units I and 2), ALAB-301,2 NRC 853, 854 (1975). See also lbrd Preheanng Conference Order at 11.

'Sull pendmg our consideration in this case are the stafTs " Notice of Appeal and tist of Excepuons" and " Motion for Directed CertIncation" which relate to a separate licensing Board ruhn6-373 r

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Cite as 13 NRC 374 (1981)

ALAB-638 UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION 7-ATOMIC SAFETY AND LICENSING APPEAL BOARD 4

Adminismthe Judges:

Alan S. Rosenthal, Chairman

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Dr. Lawrence R. Quarles Thomas S. Moore in the Matter of Docket No. SC-409 SFP DAIRYLAND POWER COOPERATIVE (Lacrosse Bolling Water Reactor)

April 27,1981 On mootness grounds, the Appeal Board (1) dismisses the referral by the Licensing Board of its ruling in Part til of LBP-80 2 (11 NRC 44,65-77);

(2) dismisses a related NRC staff exceptier.; and (3) vacates Part 111 under the doctrine of United States v. Mumingwear, 340 U S. 36 (1950).

MEMORANDUM AND ORDER ne D.iryland Power Cooperative holds a provisional operating license for its Lacrosse nuclear facility. In an initial decision rendered in January 1980, the Licensing Board acted favorably on Dairyland's application for an amendment to that license which would permit the expansion of the storage capacity of the facility's spent fuel pool. LBP-80-2,11 NRC 44.

Hat result was later afTirmed by us in ALAB-617,12 NRC 430 (1980).

As ALAB-617 reflects, a sharp controversy had arisen below respecting whether, in the course of passing upon the spent fuel pool expansion proposal, the Licensing Board should inquire into the continued need for the power generated by the 12 Crosse facility. Rejecting the insistence of both the applicant and the NRC staff that itlacked thejurisdiction to do so, the Board had conducted an evidentiary hearing on the need-for-power question and then,in the initial decision (lI NRC at 77 et seg. ), had found 374 f,f.

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that 12 Crosse-generated electricity would be needed et least until th (nd of 1982.

That finding bhich was not challenged before us by any party) obsiously stripped the Board's jurisdictional ruling of any significance e

insofar as this proceeding is concerned.' Nonetheless, at the end of its initial decision the Board fulfilled a prior oral commitment to refer the ruling to us under 10 CFR 2.730(f). II NRC at 104. In addition, the start filed an exception to the initial decision for the stated purpose of bringing into specific ci. estion one of the underpinnings of the ruling.

Given the fact that by then thejurisdictional ruling had become entirely academic (and the additional fact that the ru'ing had rested upon the particular and seemingly sui generis circumstances of this case), in ALAB-631 we might well nave simply dismissed both the referral and the exception on that ground. We chose, however, to follow a different course by reason of the pendency of a similar (albeit not identical) question which had been raised in another spent fuel pool expansion proceeding, decided by the Licensing Board and likewise referred to us. Conrumcrs Power Co. (Big Rock Point Nuclear Plant), LBP-80-25,12 NRC 355 (1980). That referral had been promptly accepted because "unlike the situation in Lacrosse, the Big Rock Point ruling had an immediate and significant practical efTect".

ALAB-617,12 NRC at 432. In the totality of circumstances, it seemM

" prudent" to hold the loCrosse referral and the related staff exception in abeyance to await our determination of the Big Rock Point controversy.

Ibid.

Big Rock Point has now been decided. ALAB-636,13 NRC 312,318 (March 31,1981)(petition for Commission review pending). In light of that decision, we have reexamined the matter of the warrant for undertaking a close examination of the merits of the L2 Crosse ruling in its current wholly academic setting. We find none. Stated otherwise, there simply is no need to spend time and resources on a moot inquiry presented in a context which appears most unlikely to recur.

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'The basis for the ruhng was developed in the initial decision,1I NRC at 65-77.

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For this reason, (1) the referral by the Licensing Board of the ruling contained in Part 111 of LBP-80-2, supra, i1 NRC at 65-77; and (2) the related exception of the NRC staff are dismissed on the groand of mootness.

On the same ground, Part III is vacated United States v. Afunsingwar,340 U.S. 36 (1950); Northern States Pour Co. (Prairie Island Nuclear q

I Generating Plant, Units 1 and 2), ALAB455,7 NRC 41,55 (1978).

It is so ORDERED.

FOR THE APPEAL BOARD C. Jean Bishop Secretary to the Appeal Board e

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O Atomic Safety and Licensing L

L Boards issuances ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paul Cotter,

• Chairman Robert M. Lazo,

• Vice Chairman (Executive)

. Frederick 3. Shon,

• Vice Chairman (Technical)

Members Dr. George C. Anderson Michael Glaser Dr. Emmeth A. Luebke*

r Charles Bechhoefer*

James P.Gleason Dr. Kenneth A. McCollum Peter B. Bloch*

Andrew C.Goodhope Dr.Wi!!iam E. Martin Elizabeth S. Bowers

• lierben Grossman*

Gary L Milhollin John 11. Brebbia Dr. Cadet II. Iland, Jr.

Marshall E. Miller

• Glenn O. Bright

• Dr. David L lietrick Peter A. Morris' U

Dr. A.Dixon Callihan Ernest E. Ilill Dr. Oscar 11. Paris

• louis J. Carter Dr. R >bert L llotton Dr. Ilugh C. Pas ton Dr. E. I2onard Cheatum Dr. Frank F. Ilooper Dr. Paul W. Purdom 11 ugh K. Clark Elizabeth B. Johnson Dr. Forrest J. Remick Dr. Richard F. Cole

• Dr. Walter l1. Johnson Dr. David R. Schink Dr. Frederick R. Cow an James L Kelley*

Frederick J. Shon*

Valentine B. Deale Jerry R. Kline*

Ivan W. Smith

• Ralph S. Decker John R. Lamarsh Dr. Martin J. Steindler y

Dr. Donald P. de Sylva Dr. James C. Lamb III Dr. Quentin J. Stober Dr. Michael A. Duggan Dr. J. Venn leeds, J r.

Joseph F. Tubridy Dr. George A. Ferguson Gustave A. Linenberger* Seymour Wenner Dr.11arry Foreman Dr. Linda W.13ttie John F. Wolf Richard F. Foster Dr. M. Stanley Livingston Sheldon J.Wolfe*

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• Permanent panel members.

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Cite as 13 NRC 377 (1981)

LBP-81-9 UNITED STATES OF AMERICA PUCLEAR REGULATORY COMMISSION 1

ATOMIC 5AFETY AND LICENSING BOARD Before Administrative Judges:

Herbert Grossman, Chairman Dr. Oscar H. Paris Frederick J. Shon in the Matter of Docket No. 50-155 OLA (3 pent Fuel Pool Expansion)

CONSUMER POWER COMPANY (Big Rock Point Nuclear Plant)

April 22,1981 The Licensing Board issues a memorandum in response to the Appeal Board's decision in ALAS-636,13 NRC 312 (1981), which reversed that Licensing Board's det.:rmination in LBP-80-25,12 NRC 355 (1980), that Section 102(2)(C) of NEPA requires the preparation of an EIS covering the impacts of a proposed spent fuel pool expansion for a plant that had been licensed before NEPA.

MEMORANDUM (Reassuring StafT Ot' Lack Of Prejudgment Of Emironmental Assessment Suggested By ALAB-636)

In its decision of March 31,1981, ALAB-636,13 NRC 312, the Appeal Board reversed this Licensing Board's September 12,1980 determination, LBP-80-25,12 NRC 355, that 6102(2)(C) of the National Emironmental Policy Act (NEPA),42 USC 4332(2)(C), requires the preparation of an emiror. mental impact statement (EIS) covering the impacts of a proposed spent fuel pool expansion Sr a plant that had been licensed before NEPA.'

'The EIS we had required would Fave been considerably more tunited than a wnstruction l

permit or operating hcense revi w since it would not have included as an environmental cost either the cost of constructing the facihty or the cost of operating the facihty to the extent the 3D

We had based our decision on the grounds that.ae expansion was for the sole purpose of permitting an additional ten-year term of reactor operation that had never been environmentally reviewed because the facility had been licensed before the passage of NEPA and had never had any ofits term of operation emironmentally reviewed. De Appeal Board held that NEPA does not require considering the environmental impacts resulting from a Federal action that merely permits continued reactor operation without any change in reactor operation.2 We cannot, of course, quarrel with the Appeal Board's reversal of our holding.

He Appeal Board also directed the Licensing Board to " rethink,"

ALAB-636,13 NRC 330 (1981), and " reconsider," id. 333, its purported further determinations that (1) the Staff would inevitably decline tot prepare an EIS and (2) the failure to issue an EIS would be erroneous also because the impacts from the physical expansion of the spent fuel pool (disregarding the continued plant operation that the expansion might afTord) themselves necessitate the preparation of an EIS. De Appeal Board discoursed at length about the " chilling efTect" our " unwise, if not improper" premature decision would have in " inhibit [ing]" the StafT from doing its job of determining whether an EIS is necessary in an " honest and objective fashion," and would result in compromising the " integrity of the hearing process." Id. 310, 331.

His Board has no little difTiculty in rethinking something that it had not thought in the first place and in reconsidering "an inappropriate prejudg-ment of the staf1's position," (id. 331), that is not evidenced in our decision.

Simply stated, we never decided that the Staff was unalterably committed to not preparing an EIS or that any efTect of the proposed spent fuel pool expansion other than the continuedplant operation it muld aford necessi-tated the preparation cf an EIS. We have carefully reexamined our Memorandum and Order, as well as the Appeal Board's decision, in order to locate the source of the confusion. On reflect; m, it appears to us to stem from our beginning assumption, apparently not shared by the Appeal Boardi, that a single Federal action such as the proposed amendment of the license to permit a spent fuel pool expansion, requires and permits the preparation of but a single environmental document encompassing all of the impacts of that action:

an environmental impact statement, if the l

action is major and has a significant efTect upon the human environment; l

operation would not be directly facilitated by the spent fuel pool expansion. LBP-80 25, sipra, 12 NRC 365.

rThe Appeal Board disclaimed any reliance upon the prolibition against a retroactive application of NEPA for its decision. ALAB436.13 NRC 329 (1981) fn. 32. Such rehance could have served to distinguish this situation from a hcense renewal appbcation.

'See ALAB-636, supra, p. 329-330.

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i an environmental impact appraisal (EIA), accompanied by a negative declaration, if otherwise. $102 of NEPA,42 USC 4332, supra,; 10 CFR 9

5551.5,51.7. We had never considered that a single major action having a number of environmental impacts would require or even peimit the preparation of separate emironmental reviewing documents covering separate impacts, some which may be minor and some major, with an EIS (or EISs) covering the major inapacts and an EIA (or EIAs) covering the minor ones. Hence, once we had determined that one of the effects of the licensing action, viz. the continued operation of the facility over a lengthy term, necessitated the preparation of an EIS, we ordered that the document also cover all other emironmental impaca of the licensing action, even though those impacts standing alone might not have required an EIS. It was this part of our order (12 NRC 366) which was the apparent source of confusion.

We did not believe that the continued plant operation efTect and other efTects of the expansion could be viewed as separate Federal actioru requiring the preparation of separate emironmental documents (e.g., 2 EISs,2 EIAs, or an EIS and EIA).' As we read 10 CFF 56:2.5 and 51.7, the action to be assessed was the amendment of the license to permit the spent fuel pool expansion. Thus, the emironmental review would have considered all of the impacts resulting from that action and,in our view, those impacts included continued plant operation.5 From the foregoing discussion, it is clear that the parties can be further reassured that our Memorandum and Order did not also postulate, as suggested by the Appeal Board, ALAB-636,13 NRC 331 (1981), fn. 36, that an action that otherwise does not have a significant effect on the emironment may be transformed into one that does by the absence of an a difTerent, prior action. The Appeal Board's environmental review or suggestion was in the context of our having distinguished the instant proposed spent fuel pw! expansion from other spent fuel pool expansions in which EISs were not required.' We noted that in those cases there had been prior emironmental reviews that need not be duplicated for the spent

%d.

SWe concede that if >ne were to beg;n with the assumption (as we did not) that the separate impacts of a smgle licensmg action may require the preparation of separate enviromental documents, one could easily misinterpret our decision as reqainng an EIS to cover continued vant operation and at least one other EIS to cov*r allother unpacts ansing from the spent fuel pool expansion. In fact, all that we determmed sas that the action facihtatmg contmued plant operation required the preparation of an EIS.

• Common ca/th Edison Company (Zson Station. Units I and 2), LDP-80-7, II NRC 245 (1980);

Portlarid General Electric Coryany (frojan Nwear Plant). LBP-78-32,8 NRC 413,449-50 (1978), affd, ALAB-531,9 NRC 263 (1979) Duquesne hght Company (Beaver Valley Power Stanon, Unit 1) LBP-7R-16,7 NRC 811,816 (1978); Northern States Power Coryany (Prairie i

Island Nuclear Generating Plant, Umts I and 2), LBP-77-$i,6 NRC 265,268 (1977), afd, 379 t

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fuel pool expansion. However, as we thought was apparent in our opinion, those prior environmental reviews were prepared

.t the operating license 9

stage and covered the i npacts from the operation of the reactor that we recognized should not have to be duplicated in the : pent fuel pool expansion proceeding. Since none of the other impacts of the spent fuel pool expansions in those cases could have been covered in the emironmen-T tal review at the operating hcense proceeding. the only portion of the resiew of the proposed spent fuel pool expansion that ccald have duplicated the prior emironmental review was that regarding the continued plant operntion. The impacts of the change in fuel pool itself have been deemed negligible in all cases ve have discovered. We do not disagree with the findings in those cases:

we thought we had carefully distinguished them from the case at bar.

In sum, we need not await th preparation of the StafL env'.ronmental analysis as suggested by the Appeal Board, id 330,333, to affirm to the parties that our September 12,1980 Memorandum and Order did not in any mearure prejudge the issue of whether the effects of expanding the spent fuel pool,per se, necessitate the preparation of an EIS.7 If one purpose of the Appeal Board's discussion is to facilitate the Staffs making its analysis in "an honest and objective fashion," we have concluded that we would be better advised to clarify our position before the Staff makes its assessment.

The Staff should be reassured, regardless of the outcome of Commission review, that it can proceed totally uninhibited by our September 12,1980 Order, which was directed solely towards the question of whether the l

additional term of operation that the expansion would permit necessitated the preparation of an EIS,8 a matter on which the Appeal Board has now spoken. Similarly, in view of the Appeal Board opinion, we take no position at thisjunc'ure on whether the other effects of the spent fuel pool expansion require the preparation of more than one emironmental document.

ALAB-455,7 NRC 4i (l978), remanded on other grounds, sub. non State ofhiknesora v. NRC, 602 F 2d 412 D.C. Cir.1979).

'ALAB-636 faulted us for purportedly prejudpng the question of stether an EIS is necessitated by the impacts that might result from the spent fuel pool expnsior., other than from continued plant operauon Ilosever, it decided the contmued plant operation issue on the merits, apparently accepung our view that this issue could be considered npe for deterrasation as a matter oflaw, notsathstanding that the environmental assessment had not yet issued. See LBP-80 25, supra,12 NRC 364, fn. 2. We concede that a strict adherence to NRC procedures might have reqaired our also delaying this question unal after the StafT had spoken. But we were aware that operanon of a nuclear plant for some years has heretofore l

always required an EIS, and we were reluctant to delay such a decision lest the delay result in a shutdown for lack of storage space.

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'That we had requested to assume only "arguendo" the S.afTs prospective issuance of sa EIA l

was recognized early in the Appeal Board's decision. ALAB-636,13 NRC 315 (1987' was apparently forgotten wuen we were later seen as promoting this assumption w.o "an inappropnate prejudgment of the staffs position.**Id 331.

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ITIS SO ORDERED.

FOR THE ATOMIC SAFE 1Y AND LICENSING BOARD

[l Herbed Grossman, Chauman ADMINISTRATIVE JUDGE Dr. Oscu H. Paris, Member ADMINISTRATIVE JUDGE Frederick J. Shon, Member ADM1NISTRATIVE JUDGE Dated at Bethesda, Maryland this 22nd de f of April 1981.

381 r

Cite as 13 NRC 382 (1981)

LBP-81-10 9

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Adminhtrathe Judges Marshall E. Miller, Chairrntri Gustave A. Linenberger l

Dr. Linda W. Little i

in the Matter of Docket Nos. STN 50-510 STN 50-511 GULF STATES UTILITIES COMPANY (Blue Hi!Is Station, Units 1 and 2)

April 28,1981 In response to applicant's request for an early site review in connection with this construction permit proceeding, the Licensing Board issues a partial initial decision on site suitability.

TECilNICAL ISSUES DISCUSSED:

Regional demography - exclusion area, low population zone, population center distance; Meteorology - design basis tornado, atmospheric dispersion of accidental and routine airborne releases of efiluents from nuclear plants; Ilydrology - Texas Water Plan, probable maximum flood, probable maximum precipitation; j

Seismology and Geology - tectonic province, safe shutdown earthquake, operating basis earthquake, design response spectra, seismic design criteria, soit liquefaction; ACRS Reviev ;

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310.

[4 1

Common Defense and Security:

NEPA Requirem:nts and the EIS - Closed cycle cooling system, senice water system, ducharge of chemical wastes, electrical transmission system, construction impacts, socioeconomic impacts, land use impacts, impacts on species populations, water quality, transportation of radioactive materials, alternate sites APPEARANCES OF COUNSEL Mark J. Wetterhahn, Esq., of Conner, Moore and Corber, Washington, D.C.

Stanley Plettman, Esq., of Orgain, Bell & Tucker, Beaumont, Texas, For the Applicant, Gulf States Utilities Company Richard Imerre, Esq, Assistant Attorney General, For the State of Texas Colleen P. Woodhead, Esq. and Imrence Brenner, Esq, Office of the Executive Legal Director, U.

S.

Nuclear Regulatory Commission, Washington, D.C. For the NRC Staff t

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TABLE OF CONTENTS Page I. INTRODUCTION 385 II. FINDINGS OF FACT ON SITE SUITABILITY AND SAFETY MATTERS 388 A. Regional Demography and Land and Water Use 389 B. Meteorology 391

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C. flydrology 394 D. Seismology and Geology 396 E. Resiew by the Advisory Committee on Reactor Safeguards 399 F. Common Defense and Security 399 G. National Enviromr. ental Policy Act Requirements and the EnvironmentalImpact Statement 400 III. CONCLUSIONS OF LAW 417 IV. ORDER 419 APPENDIX A t

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PARTIAL INITIAL DECISION (Early Site Reilew)

I. IfCRODUCTION This is a proceeding on the application of Gulf States Utilities Company

(" Applicant") for construction permits for the proposed Blue Ilills Station, Units I and 2 (the " facility") to be located in Newton County, Texas. His Par 1ial Initial Decision examines the Applicant's request for Early Site Review, in accordance with NRC's "Early Site Reviews and Limited Work Authorizations",42 Fed Reg. 22882 (May 5,1977), efTective June 6,1977.

1. He proposed facility would consist of two pressunzed water reactors (PWR), each designated for initial operation at approximately 957 MWe (gross).' He proposed site is the Applicant's 1221-ha (3016 acre) site on the lower basin of Toledo Bend Reservoir in eastern Texas (Newton County),

approximately 14.5 km (9 miles) west of the Texas-1.ouisiana border and 40.2 km (25 miles) east-northeast of the city of Jasper, Texas.2 It is 17 miles east of Sam Rayburn Reservoir. Farm-to-Market Road 255 runs east-west about two miles south of the site.

2.

On June 27, 1974, Applicant applied to the Atomic Energy Commission, predecessor to the Nuclear Regulatory Commission (NRC),

for c&truction permits for two pressurized light water reactors for its Blue 11 ills Station, Units 1 and 2, to be located in Newton County, Texas. He Commission issued a " Notice of Ilearing on Application for Construction Permits" on October 29, 1975 (40 Fed Reg. 52768, Nov.12,1975, as corrected, 40 Fed Reg. 54031, Nov. 20,1975). At that time, an Atomic Safety and Licensing Board (Board) was established. Since that time, the Board has been reconstituted on two occasions (41 Fed Reg. 37678, 1976; 43 Fed Reg. 8871,1978). No petitions for leave to intervene were received in response to the original notice. He State of Texas requested participa-tion in the proceeding as an " interested State" pursuant to 10 CFR Section 2.715(c). His proceeding is an uncontested proceeding as defined by 10 CFil Section 2.4(n).

3. Applicant subsequently amended its application for construction p rmits to include a request for a partial initial decision on early site resiew leading to construction permits and operating licenses, in accordance with

' Staffs Exhibits 7,7A. 7B, Fmal Site Environmental Statement (NUREG4889). Blue Ells Station. Unit Nos. I and 2, July 1978. U.S. Nuclear Regulatory Commission. OfTice of Nuclear Reactor Regulation. Washington. D.C. (hererJter FSES). received into evidence at Tr.169; j

Applicant's Exhibit 2. Appendix A, at 2).

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"Early Site Reviews and Limited Work Authorizations" (42 Fed Reg. 22882, afay 5,1977; effective June 6,1977). Reasons cited by Applicant for this amendment were changes in load forecasts, construction schedule, and G

a resulting slippage in dates for the proposed facility. On hiay 3,1978, the Commission issued a " Notice of IIcaring on Application for Early Site Review" (43 fed Reg. 20572, hiay 12,1978). Notices (display advertise-I ments) of the public hearing were published in the &c.nille (leuisiana)

Leader, the Jar;~ (Texas) News Boy, and the Newton (Texas) News. No timely petitions for leave to intervene were received in response to this Notica. The State of Texas reiterated its desire to participate as an interested state pursuant to 10 CFR Section 2.715(c), which request was granted by the Board. On November 1,1978, the Commission's Oflice of the Secretariat received an undated petition for leave to intervene from D.

hiichael hicCaughan, hiemhr, The Emironmental Task Force, 3131 Timmons Lane, Apt. 254, liouston, Texas 77027. Both Applicant and StafT oppod this untimely petition. On December 27,1978, the Board denied the ptition, based on a failure to demonstrate interest or standing to intervene, aad after consideration of factors required for late intervention

[10 CFR Section 2.714(a)(1)(i-v)].

4. The Board published a " Notice of licaring on Application for Early Site Review" on April 6,1979(44 fed Reg. 22231). The duly noticed prehearing conference and evidentiary hearing were held hiay 8-9,1979, in Jasper, Texas. During the course of tl:e hearing, a number of limited appearance statements were received, pursuant to 10 CFR Section 2.715(a)

(Tr. 31-41,126-59, 258-37). On hiay 8,1979, the technical members of the Board toured the prcposed site and viewed portions of Toledo Bend Reservoir and other points of interest related to the proposed Station.

including proposed intake and discharge sites.

5. Following completion of the evidentiary hearing on suitability of the site, the Commission issued certain siting-related documents which the Board considered potentially applicable to the Blue 11 ills proceeding. These were:

" Report of the Siting Policy Task Force," NUREG-0625 (August, l

1979) l

" Advance Notice of Rulemsking:

Revision of Reactor Siting Criteria"(July 23,1980)

Proposed amendments to emergency planning regulations for produc-l tion and utilization facilities (44 fed Reg. 54308, September 19, 1979; 44 fed Reg. 75167, Dec.19,1979)

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Final rule on emergency planning (45 Fed. Reg. 55402, August 19, 1980)

Statement of Interim Policy on " Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969"(June 9,1980)

[l, Upon further examination of that part of the evidentiary record (ER at

" Proposed Licensing Requirements for Pending Applications for Construction Permits and Manufacturing License", NUREG-0718 (August.1980) 2.2-49 Suppl.1: Tr. 259-2(0) relating to possible transfers of water from the Sabine River and its tributaries and reservoirs to other portions of the State of Texas, the Board sua sp9nte obtained and reviewed the " Texas Water Plan:

Summary" (Texas Water Development Board, November,1968).

On September 9,1980, the Board issued an " Order Requesting Briefs and Additional Information," requesting from Applicant and Staff state-ments of position and supplemental information on applicability or potential applicability to the instant early site review of the rules, proposed rules, ar.d other doca.;,ts descrited supra. Responses were provided by the StafT on October 15,19SO rnd by the Applicant on January 23,1981.

He " Order" and the " Responses" are hereby incorporated a? supplements to the record of this proceeding.

6.

He record of this proceeding consists of the transcript of the prehearing conference of May 8,1979 (Tr.129), the transcript of the evidentiary sessions of May 8-9,1979 (Tr.30-289), the Board order and responses (sunra ), and the exhibits which were receis ed in evidence listed in Appendix A, attached hereto.

He parties to this proceeding are the Applicant, the Nr.C Staff 7.

(Stafr), and the State of Teus (State). He State participated as an

" interested state" pursuant to 10 CFR Section 2.715(c). The State of Louisiana did not participate, although copies of the DES were submitted to the leuisiana Board of Nuclear Energy for notification and resiew (Tr.

251).

8.

Pursuant to the requirements of 10 CFR Section 2.101(a-1), the Applicant has submitted proposed fmdings on the issues on which it has requested review and a statement of the bases or reasons for those findings and has submitted a range of postulated facility design and operation parameters to enable the requested review of site suitability issues to be performed under the applicable provisions of Parts 50,51 and 100.

9.

He Applicant has also submitted information concerning the Applicant's site selection process and long range plans for ultimate 387 Im 1

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development of the site. With regard to the ultimate development of the site, the Applicant has stated that the Blue Hills site (which has also been i

referred to by the StafT as Site G) is ultimately capable of supporting four e

nuclear power facilities of the general size and type being licensed in the United States. However, the Applicant clearly indicated that such informa-tion was submitted to fulfill the requirements of Sections 2.101(a-1)(1) and 2.603, and no finding on the suitability of the Blue Hills site for four units was requested or made herein. He Applicant recogmzed that should it wish to site any more than two reactors at Blue Hills, it must submit a new spplication, including a new alternative site study, to the NRC (Tr.14).

10. Following the conclusion of the evidentiary hearing, the Applicant submitted its Proposed Findings of Fact and Conclusions oflaw on June 7, 1979. He Staffs proposed findings and conclusions adopted those proposed by the Applicant, with certain specified exceptions and modifica-tions filed July 5,1979. In response to the Board's Order Requesting Briefs and Additional Information entered September 9,1980, respanses were provided by the StafT on October 15, 1980, and by the Applicant on January 23,1981. In those instances in which the proposed findings were found by the Board to be complete, accurate and supported by the record, they have been substantially adopted by the Board. In all other cases, the Board made its own findings or substantially modified the proposed findings submitted by either the Applicant or the StafT, based upon the evidentiary record. Any proposed findings of fact and conclusions oflaw submitted by the parties which are not incorporated, directly or inferentially, into this PartialInitial Decision are herewith rejected as being unnecessary to the rendering of this decision.

II. FINDINGS OF FACT ON SITE SUITABILJrY AND SAFETY MA*ITERS I1. Applicant submitted an application (Applicant's Exhibit 2) and a Preliminary Safety Analysis Report (PSAR) (Applicant's Exhibit 4) contaming detailed technical information relative to site suitability and safety matters for which Applicant has requested early site review, as set forth in Attachment A to the License Application (Applicant's Exhibit 2).

He PSAR format adheres to Regulatory Guide 1.70, Standard Format and Content of Safety Analysis Reports for Nuclear Power Plants, Revision 1 (USAEC, C:tober,1972).

12. He Staff reviewed the PSAR and issued its Early Site Review for the Blue Hills Site ("ESR", NUREG-0131) in January,1977 (StafT Exhibit 8). Supplement I to the Early Site P.eview for the Blue Hills Site was issued in June,1977 (StafT Exhibit 9). Stafi Exhibits 8 and 9 summanze the results i

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4 of the StalTs technical r,4iuatie, of the suitability of the proposed Blue 11 ills site for a nuclear power plant, and delineate the scope of the technical matters relative to the radiological health and safety aspects of the proposed 9

facility.

13. Based on its evaluation, the StafT concluded that the Blue Ilills site is acceptable under the guidelines of 10 CFR Part 100 for the construction and operation of a nuclear power plant of the general type and size bemg proposed for other sites in the United States.

14. The Board finds that the Applicant has provided suflicient information relative to the radiological health and safety of the proposed site, and that the Staffs review and evaluation of that information is adequate.

A.

Regional Demography and land and Water Use

15. The exclusion area (radius of 0.86 mile or 1390 meters) is entirely within the site boundary. No public highways, waterways, or railroads traverse the exclusion area. Here are no residences within the exclusion area. He site is totally owned by the Applicant, which will have authority to determine all activities within the exclusion area, as required by 10 CFR Part 100 (PSAR Section 2.1.2 and response 31.22; ESR Section 2.1; Tr. 51).

He exclusion area can meet the applicable guidelines of 10 CFR Part 100 and is acceptable. He exclusion area also exceeds the value of 0.5 mile, cited in the Report of the Siting Policy Task Force (NUREG-0625, August, 1979) as a distance which "would provide reasonable assurance...that radiation doses beyond this distance would not result in consequences greater than the present guidelines values given in Part 100.11, assuming that the engineer.d safety features function as designed."

16. The 1970 population within 10 miles of the site was mimated by Applicant to be about 1500 people; within 50 miles,155,500 people. These populations are projected to approximately double by the year 2020.

Transient population resulting from recreational activities near the Toledo Bend Reservoir occurs between four and five miles and reached a total of 23,000 during 1973. De transient population has been estimated to reach 63,000 by the year 2(20 (PSAR Section 2.1.3; ESR Section 2.1). On a demographic basis (1970 data), the Blue Ilills site ranks very favorably with other sites licensed by the Commission (Applicant's Response to Board Order, 2-3, citing NUREG-0348, " Demographic Statistics Pertaining to Nuclear Power Reacter Sites"(October,1979)).

17. The Applicant has specified a low population zone of three miles radius. He population within that area is stated to be 10 for the 1970 i

census year, and the Applicant estimates no more than 22 by the year 2020.

No characteristics of the low population zone have been identified which would preclude formulation of an acceptable emergency plan for the residents within the zone as required by 10 CFR Part 100.3(b). No other e

finding was requested by Applicant at this stage. Full findings on emergency anning, including consideration of emergency planning zones of 10 a W iniles radii (45 Fed Reg. 55402), will be made at the construcuva pennit stage.

18. Here a.e no large communities in the vicinity of the site. The largest unirmrporated area within 50 miles is the Fort Polk military base with a

.aion of 24,000 and located 33 miles east of the site. Here are no communities within 50 miles with a 1970 population of 25,000 or more. The nearest ypulation center is properly identified and this satisfies the 10 CFR Part 100 requirement that a population center distance be at feast one and one-third times the distance from the reactor to the outer boundary of the low population zone (PSAR Section 2.1.3.5; ESR Section 2.1). The low population zone is acceptable.

19. A reactor system and engineered safeguards have not yet been defined for the Blue 11 ills site, and thus offsite doses from postulated design bases accidents cannot be compared to the guideline values of 10 CFR Part 100. Ilowever, based on experience at other licensed power plants and those currently tinder review, the parameters of the exclusion area and low population zone, and meteorological dispersion factors existing at the site, it can be concluded that the Blue liills site is acceptable under the guidelines of 10 CFR Part 100 for the construction and operation of a two unit nuclear power plant of the general type and size being proposed for other sites in the United States (ESR Section 2.1).

20. There are no significant industries, waterways, airports, mining activities, railroads, or military facilities within 10 miles of the Blue Ifills site. The nearest major roac'way is Sv.te liighway 87 which passes, at its closest approach, about two miles west of the site.He nearest pipeline is an eight-inch crude oil line passing about five miles mtheast of the site, and the nearest railroad is a line of the Sante Fe Railroad 18 miles west of the site. Federal Airway V212 passes about five miles north of the site (PSAR Section 2.2.1 and 2.2.2: ESR Section 2.2).

21. The nature and extent of activities at nearby industrial, military, and transportation facilities have been evaluated. There are no actisities in the i

vicinity currently going on or presently planned which have the potential l

for precluding use of this site for a nuclear power plant as outlined in the application (PSAR Section 2.2.3; ER Section 2.2).

1 5

I a

a B

1

l B. Meteorology i

22. As described below, a suflicient description of the regional O

meteorological conditions of importance to the safe design and sitmg of a nuclear power plant at the Blue Ilills site has been provided (ESR Section T

2.3; Tr.177-96).

23. Snowfall is a rarity in the region, averaging less than one inch per yw. Ilowever, occasional storms in the general vicinity accumulated up to l

10 inches of snow on the ground. One or two ice storms, some occasionally severe, may occur each year in the area. Similarly, the mean annual number of days of hail in the region is one or two. A design load for roofs of safety-related structures or 30 pounds per square foot as proposed by the Applicant, is acce) table for loads due to snow at the Blue iblls site (PSAR Section 2.3.1: iSL Section 2.3.1).

24. Between 1953 and 1974,116 tornadoes occurred within a 10,000 square mile area containing the site, resulting in a recurrence interval of 670 years for a tornado at the plant site. The design basis tornado proposed is similar to the design basis tornado parameters for Region I as described in Regula.uy Guide 1.76 " Design Basis Tornado for Nuclear Power Plants,"

and is acceptable for the site. Rese parameters include a maximum wind speed of 360 miles per hour consisting of a maximum rotational speed of 290 miles per hour and a maximum translational speed of 70 miles per hour; a minimum translational speed of five miles per hour; a radius of maximum rotational speed of 150 feet; a pressure drop of three pounds per square inch; ed a rate of pressure drop of two pounds per square inch per second.11urricar.:s and tropical storms also effect the site area. Because the site is 95 miles inland from the Gulf of Mexico the velocities of wind from hese storms are less at the site thn at the Gulf Coast. An operating basis wind speed (defined as the "fastes.

ile with speed at a height of 30 feet with a return of 100 years) of 90 n.iles per hour is acceptable (PSAR Sections 2.3.2.2.1-wind. and 3.3.2.1; ESR Section 2.3.1).

25. The meteorological data from the region has been examined to select appropriate meteorological conditions in considering the de.icn requirements for an ultimate heat sink as recommended in Regi.ory Guide 1.27, " Ultimate Ileat Sink for Nuclear Power Plants The meteorological data presented is acceptable for analysis of the ultimate heat sink design concept (i.e., mechanical draft cooling tower and basin) described in the Preliminary Safety Analysis Report (PSAF rection 9.2.5; ESR Section 2.3.1).

26. Suflicient information has been provided to m

. evaluation of the local meteorological conditions of in.; Trtanc~

le design and i

siting of t. nuclear power plant at the Blus Hill s

.., years of data M1

collected onsite is available to asses,11.- local meteorological characteristics of the Blue Hills site as well at climatological data from three other locations (ESR Section 23.2; Tr. 79).

O

27. He onsite meteorological measurements program conforms to the recommendations and intent of Regulatory Guide 1.23,"Onsite Meteoro-i logical Programs." He meteorological measurements program has pro-

[

duced data which, in turn, have been summanzed to provide sufficient meteorological description of the site and its vicinity and serves as an acceptable basis for making atnmspheric dispersion estimates for use in determining the radiological consequences of accidental and routine airborn releases of emuents from a nuclear power plant (ESR Section 233).

28. The Blue Hills site is located in a forested terrain. A meteorological model which considers the " sheltering" effect of the trees surrounding the meteorological tower in calculations of atmospheric dispersion factors (X/Q's) for the site was originally proposed (PSAR Section 23.4.2 and Appendix 2G) These X/Q's are smaller than those calculated which do not consider the " tree sheltering" effect. As a result of the Staff evaluation of the Applicant's meteorological model, the Staff found that the quantitative reduction of the X/Q's proposed by the Applicant due to the " tree sheltering" effect was not warranted based upon the information available on this phenomenon at this time. He Staff therefore did not utilize the sheltering effect in its development of acceptable X/Q estimates for the Blue Hills site (ESR Section 23.45. If further data become available, and if the Applicant at its election proposes it, the Staff will again consider the modifications of its meteorr.ogicM model to take into account this phenomenon.

29. In calculations of short-term dispersion estimates, a dispersion model modified from that described in Regulatory Guide 1.4, "Assump-l tions Used for Evaluating the Potential Radiological Consequences of a l

Ioss-of-Coolant Accident for Pressurized Water Reactors" was used by the l

Staff. His modified model has incorporated results from recent field I

experiments in atmospheric dispersion (ESR Section 23.4; Tr. 229-35).

30. Using the modified dispersion model, which considers directionally variable exclusion boundary distances and site specific directional frequen-cies of atmospheric dispersion conditions, conservative assessments of post-accident atmospheric dispersion conditions have been made for the P.lue l

Hills site by the Staff. In the model, meteorological data for two years of onsite data collection with wind direction and speed measured at the 33-l foot level were used (ESR Section 23.4; Tr. 230-34).

l

31. The relative concentration for the 0-2 hout time period which is l

exceeded no more than five percent of the time is 1.1 x 10 -) seconds per 392 m

l

cubic meter at an exchtsion distance of 1,369 meters measured from the outside edge of the containment buildings (ESR Section 2.3.4).

32. The relative concentration values for various time periods at the outer boundary of a Low Population Zone of 4,800 meters, calculated on a conservative basis, are a X/Q of 1.7 x 10 d sec/m2 for 0-8 hours, a X/Q cf 1.2 x10 4 sec/m5 8-24 hours,a X/Q of 4.8 x10 5 sec/m2 for 1-4 days, and a X/Q of 1.4 x 19 -5 sec/m2 4-30 days (ESR Section 2.3.4).

33. Average atmospheric dispersion conditions for the Blue Hills site were estimated using an atmospheric dispersion model for long-term releases based on the " Straight-Line Trajectory Model" described in Reguntory Guide 1.111," Methods for Estimating Atmospheric Transport and Dispersion of Gaseous Effluents in Routine Releases from Light-Water-Coded Reactors." The model assumed a ground-leve' release only and considered the effects of airflow recirculation and stagna-ion. Neglect-ing plume depletion and radioactive decay, the h@est affsite annual average relative concentration of 4.1x 10 -5 seconds per cubi: meter would occur at the east boundary 1,369 meters from the reactor complex (ESR Section 2.3.5).

34. Sufficient information concerning those meteorological conditions which are ofimportance to the safe design and siting of a nuc' ear power plant at the Blue Hills site has been provided. The design basis tornado parameters proposed for the site conform to the provisions of Regulatory Guide 1.76, " Design Basis Tornado for Nuclear Power Plants." The Applicant's onsite meteorological program conforms to the provisions of Regulatory Guide 1.23, "Onsite Meteorological Program," and has pro-duced two years (October 15, 1973 - October 14, 1975) of onsite meteorological data which provide an acceptable basis to determine site atmospheric dispersion conditions and which were used to make both conservative and realistic estimates of atmospheric dispersion characteris-tics for accidental and routine gaseous releases, respectively, for the Blue Ells site (ESR Section 2.3.6).

35. In response to a question raised at the hearing, the Board explored the meteorological dispersion characteristics at distances well beyond the low population zone. At a distance of 50 miles, the annual average X/Q is approximately two orders of magnitude lower than at the low population zone, i.e., the dispersion is two orders of magnitude higher (Tr. 86). The Board considers that the question was adequately addressed (Tr. 34-5,75-87.186,228-40). In any event,10 CFR Part 100 guidelines and other NRC requirements are met.

393 o

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4 C,

Ilydrology

36. The Blue Ilills site is located in the hidl Creek basin eight miles west 9

southwest of the Toledo Bend Dam. He lower portion of the Toledo Bend Reservoir is between the site and the dam. When the water level is at the top of the spillway gates, the closest point of the reservoir is just over one mile from the site. He site lies on a ridge between two small creeks, Copperas and hiitchell Creeks, which are approximately a mile apart at the site. The proposed plant grade is 270 feet above mean sea level; 97 feet above the top of the dam spillway gates, more than 50 feet above the higher creek bed (htitchell Creek) near the site (PSAR Section 2.4.1.2; ESR Section 2.4.1).

37. Toledo Bend Reservoir is located on the Sabine River at river mile 156.5, where the drainage area is 7,178 square miles. De top of the dam is 185 feet above mean sea level, the top of the power pool (that portion of the reservoir used for hydroelectric power generation)is 172 feet above n'can sea level, and the tops of the gates are 173 feet above mean sea level. At elevation 172 feet above mean sea level, the reservoir covers 182,000 acres and contains almost 4.7 million acre-feet of water. Water from the reservoir is used for irrigation, municipal and industrial water supplies, hydroelectric power generation and recreation. He water supply for normal plant operation would be obtained from the Toledo Bend R<servoir (PSAR Section 2.4.1.2: ESR Section 2.4.1). In view of the uncertainty of the probability, timing. and manner ofimplementation of the Texas Water Plan (5, supra ) (Board Order at 5-6 and Staffs Response at 1011), the Board finds that prior to issuance of any limited work authorization or construc-tion permit, the current status of this Plan in regard to the Toledo Bend Water Reservoir must be examined.

38. The probable maximum flood elevation calculated by the Applicant for the hiill Creek basin using a conservative methodology is estimated to

~

be 243 feet above mean sea level near the site; this is well below plant grade of 270 feet above mean sea level. Because of this large freeboard, the probable maximum flood does not constitute a threat to the Blue Hills site.

Sir.ce no dams exist in the hiill Creek basin, the Blue Hills site is not susceptible to a dam failure flood. Surges and seiches on Toledo Bend Reservoir will not afTect the site because it is more than a mile away and almost 100 feet above the normal reservoir water level. Here is no other large water body near the site. Due to its inland location, the Blue Hills site is not susceptible to tsunami flooding. Relatively mild winters in the site area preclude the possibility of ice flooding and associated damage to safety-related facilities (PSAR Sections 2.4.3, 2.4.4, 2.4.5, 2.4.6 and 2.4.7; ESR Section 2.4.2 and 2.4.3).

394

39. An ultimate heat sink of the general type proposed by the Applicant (mechanical draft cooling towers and basins) could be designed to safely shut don and to maintain a nuclear power plant in safe shutdown for at e

least 30 days in the event of the loss of water to the plant from the Toledo Bend Reservoir (PSAR Sections 2.4.11.6, 9.2.5.3; ESR Section 2.4.4; Tr.

119). A specific ultimate heat sink design will be reviewed at the I~

construction permit stage.

40. De Applicant has tated that the roofs of all safety-related buildings and the site grading and drainage will be designed to prevent a threat to safety-related facihties by the localized probable maximum precipitation (P5 AR Section 2.4.10; ESR Section 2.4.5).

41. An analysis of an accidental spill of liquid radioactive wastes was provided. A postulated failure of a boron management system holdup tank releasing approximately 124,000 gallons to the groundwater was evaluated.

He analysis showed that all radionuclides will be below the maximum permissible concentration listed in 10 CFR

• art 20 Appendix B at the point where Mitchell Creek leaves the site excluswn area. In addition, there is no present or projected future use of any of the surface waters in the Mill Creek basin. There is little likelihood of contamination of potable water supplies outside the site exclusion area from an accidental release ofliquid efiluents (PSAR Section 2.4.12; ESR Section 2.4.7).

42. The site is located in sediments of the Gulf Coastal Plain, which consin large quantities of water commonly occurring under confined conditions. The permeable sands containing the groundwater are interbed-ded with less permeable clays, silts and silty clays which act to confme the water in the sands. Groundwater beneath the site occurs in two zones. A perched water table, within 20 feet of the surface, is present above localized lenticular clay interbeds. The main water zone is at a depth of 70 to 80 feet below the site. Recharge is by percolation of water flowing around the overlying lenticular clay bodies and by infiltration from Copperas Creek.

Groundwater movement is to the northeast apparently toward Toledo Bend Reservoir (PSAR Sections 2.4.13.1.2,2.4.12.2; ESR Section 2.4.8).

43. Nearly all the wells within 10 miles of the site extract less than 10 gallons per minute. There are no wells downgradient of the plant between the site and Toledo Bend Reservoir. The Applicant states that there are no present plans to use groundwater for plant operation; all the water used will come from Toledo Berid Reservoir. Groundwater levels at the site are at elevations ranging from 190 to 210 feet above mean sea level, excluding the perched water tables. There is little likelihood of contamination of potable water supplies outside of the site exclusion area from an accidental release of radioactive liquid effluents (PSAR Section 2.4.12.5; ESR Sections 2.4.8, 2.4.9).

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M L

FP'r-m l

44. Based on evaluation of the present groundwater levels, topography at the site and the removal of the higher perched water table during construction, the proposed design basis groundwater level of 215 feet above mean sea level is conservative and acceptable for use in the design of a nuclear power plant at the Blue Hills site (ESR Section 2.4.8).

45. De flood analysis for the Blue Hills site meets the criteria in Regulatory Guide 1.59," Design Basis Floods for Nuclear Power Plants,"

and flooding does not constitute a threat to the site (ESR Section 2.4.9).

D. Seismolon and Geolop

46. De seismology and geology review of this site addressed the geologic history of the region including physiographic, lithologic, strati-graphic and tectonic settings as well as the subregional and site-specific geology and seismology. Investigations have been sufficient to adequately assess site geclogic conditions in accordance with " Seismic and Geologic Siting Criteria for Nuclear Power Plants," Appendix A, to 10 CFR Part 100.

47. He tectonic province approach, as described in 10 CFR Part 100 Appendix A, was followed to determine the vibratory ground motion corresponding to the safe shutdown earthquake. The selected safe shut-down earthquake acceleration of 0.13g represents an appropriate and conservative reference acceleration for seismic design of structures at the Blue Hills site (PSAR Section 2.5.2.10; ESR Section 2.5).

48. The site is located within the Gulf Coastal Plain physiographic province which is the onshore portion of the Gulf Coast Geosyncline which extends under the Gulf of Mexico to the edge of the continental shelf. The sedimentary deposits in the region range in age from Jurassic to Recent and consist mainly of unconsolidated sands, silts, clays, limestone and chalk

~

with minor amounts of salt. He sediments form a wedge that diserges seaward, exceeding 50,000 feet in total thickness. At least 20,000 feet of sediments underlie the Blue Hills site. Due to consolidation of the thick sedimentary section, the general dip of the strata increases gulfward at slightly greater angles than the present land surface. Differences in resistance to erosion of the sediments resulted in a series of linear topcgraphic belts which are parallel to the Gulf Coastline. De more resistant Brmations form landward facing cuestas with relief up to 400 feet or more. Sad domes which are common to the east Texas region are not known to occv closer than approximately $5 miles from the site (PSAR Sections 2.5.1.1.4.3.5 and 2.5.1.1.6.6; ESR 2.5.1).

49. In the site vicinity, there may be faults (none is known to exist within a five mile radius of the site) of nontectonic origin charactenzed by l

steep, near surface dips which become less steep with depth and eventually N

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<1

pass into bedding planes. Another characteristic of these faults is the thicker strata on the downthrown side, where accumulation occurred simultaneously with fault movement. They are referred to as growth faults G

and are predominantly of low stress, since they are shallow rooted. Rey typically do not develop larEe strain and sudden stress releases which are l

characteristic of damaging earthquakes, and therefore, are not considered to present a hazard to the proposed site (PSAR Section 2.5,2.5.1.l.4.3.3; ESR Section 2.5.2).

50. There are no geologic faults or other tectonic structures that present a potential hazard to the proposed site (PSAR Sections 2.5.2.2,2.5.2.8; ESR Section 2.5.2).

51. The Blue Hills site is located in the eastern part of the West Gulf Coastal Plain.He Mississippi Alluvial Plain divides the Gulf Coastal Plain province into cast and west segments. As a result of a comprehensive investigatory program, it wu concluded that no deformational zones, such as folds, fissures, slips, faults and shears, have been found at the site and the nearest known salt dome is approximately 55 miles south of the site. In addition, t.o oil, gas, or other mineral extraction has been or is presently being conducted with a five-mile radius of the site, and groundwater extraction in the vicinity of the site is not sufficient to cause subsurface subsidence. Also, there is no record of subsurf ace mining or other similar underground workings in the area which might create a subsidence problem at the site. All lineaments recognized in a ten-mile radius of the site on small-scale infrared and large-scale panchromatic photography were investigated in the field and no indication of fault ofTset was observed (PSAR Sections 2.5.1.1,2.5.3).

52. Here are no geologic structures or conditions resulting from man's activities, such as mining or oil extraction, that present a hazard to the site.

In addition, the problem of subsidence is not a factor at the Blue Hills site (ESR Section 2.5.3).

53. A conservative value of 0.13g is proposed for the safe shutdown earthquake acceleration level. He intensity corresponding to a mean acceleration of 0.13g is VII (MM). Based on a detailed review of the tectonic province, earthquake actinity and geologic structures surrounding the site, earthquakes as large as this have not been observed in the historical record of seismicity for the Gulf Coastal Plain, except in the area of the Southern Cordilleran Front, the complex region at the intersection of the Ouachita Tectonic Belt, the Wichita Structural System, and the northern Mississippi Embayment. Neither the high seismicity nor the structural complexity found in these areas where large earthquakes have occurred is present in the vicinity of the Blue Hills site. For the safe shutdown earthquake, 0.13g r presents w appropriate and conservative reference l

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acceleration for seismic design of structures at the Blue Ilills site.

Regulatory Guide 1.60, " Design Response Spectra for Seismic Design of Nuclear Power Plants," response spectra scaled to this maximum accelera-tion for the design of a nuclear power plant will be used at the Blue 11 ills site and this is acceptable (PSAR Sections 2.5.2.10,3.7.1.l; ESR Sections 2.5.4, 2.5.5, 2.5.6).

54. It is proposed to use 0.07g for the acceleration level corresponding to the operating basis earthquake, which is representative of intensity VI (MM). Considering the low seismicity of the Gulf Coast Seismic Zone, the proposed operating basis earthquake is conservative. Regulatory Guide 1.60, " Design Response Spectra for Seismic Design of Nuclear Power Plants," response spectra scaled to this maximum acceleration of 0.07g for the operating basis earthquake will be used for the design of a nuclear power plant at the Blue Hills site and this is acceptable (PSAR Sections 2.5.2.I1,3.7.1.I; ESR Section 2.5.7).

55. He geologic investigations and the laboratory analyses perfonned on the soil specimens, including determinations of shear strength, consoli-dation, dynamic properties, and seismic resistance to earthquake effects are adequate to serve as the basis for the design of safety-related plant structures (ESR Section 2.5.8).

56. De plan for the support of safety-related structures is uccomplicated and acceptable. Upper clay and upper sand strata will be ex,:avated.

Deep plant foundations will rest directly on er in the middle sand stratum, i.e., the third sequence. Shallower plant foundations will rest on compacted granular backfill supported by the middle sand stratum. The proposed foundation design is based on an envelope of dimensions, structure depths, loadings, and stated assumptions. Therefore, at the construction permit application stage, the Applicant will validate the applicability of the foundation design to the specific nuclear power plant design proposed as follows:

The Applicant will submit for NRC review and approval ofits critena for construction control during (a) excavation and backfilling of the i

foundations, (b) remedial foundation treatment, (c) proofrolling of the foundation, and (d) removal of unsuitable materials fiom the middle sand stratum. Standard Penetration Test data in the middle sand strata will be provided for review as comparative plots of blowcount and effective l

pressure (ESR Section 2.5.9).

57. The large mat foundations supporting plant structures impose relatively low net bearing pressures on the structural fill and soils of the l

middle sand stratum. Table 2C-3 of the Preliminary Safety Analysis Report indicates that net dynamic bearing pressures due to the safe shutdowT l

earthquake are al=o relatively low, and that the site soils have adequate l

bearing capacity (ESR Section 2.5.10).

I i

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W L

k

58. Criteria for the latesal earth pressure acting on subsurface foundations have been established. He proposed design criteria for lateral e

earth pressures described in the PSAR are acceptable (PSAR Section 2.5.4.10.2; ESR Section 2.5.11).

59. He liquefaction potential of the middle sand stratum was analytically evaluated by comparing the computed dynamic stresses

[T induced in the site soils by the safe shutdown earthquake to the resistance of these same soils to cyclic stresses during tests in the laboratory. He assumptions used in the analysis are conservative, the margins of safety for the various conditions are adequate, and risk ofliquefaction due to seismic efTects is remote at the B'ae Ilills site (PSAR Section 2.5.4.8.4; ESR Section 2.5.12). Based on the held and laboratory tests conducted, the dynamic properties of the soils used in the analysis are reasonable for this site and are acceptable (ESR Section 2.5.13).

60. Sability analyses for permanent slopes surrounding the proposed plant area have been performed. None of the slopes is, itself, seismic Category 1. All slopes will be constructed at two horizontal to one vertical.

He location of these slopes with respect to the proposed location of the safety-related structures is such that slope failures would not endanger these structures. Slope stability considerations at the site are acceptable (PSAR Section 2.5 5; ESR Section 2.5.14).

E. Review by the Adsisory Committee on Reacter Safeguards

61. The Advisory Committee on Reactor Safeguards (ACRS) completed its review of the request of the Gulf States Utilities Company to <letermine the suitability of the Blue liills site for a nuclear power plant at its 203rd meeting on March 10-12, 1977, in Washington, D. C. Members of the ACRS Subcommittee visited the site on January 28,1977, and a Subcommittee meeting was held the same day in Jasper, Texas. He ACRS report for the Blue Ilills Early Site Review is dated March 16,1977. He repart concludes that subject to the comments and recommendations reft.nced in the report, the ACRS believes that adequate information is available to conclude that the Blue Ilills site is suitable for a light water reactor nuclear power plant of the general type and size currently being proposed for oiher sites in the United States (Early Site Review, NUREG-0131, Supplement 1, Section 18.0, June,1977).

F. Common Defeme and Security

62. The activities to be conducted under the construction permit will be within thejurisdiction of the United States. All of the Applicant's directors 399 N

g

and principal oflicers are citizens of the United States, an he Applicantis not owned, dominated or cont *ctled by any alien, for6 mrporation, or a foreign government. He activities to be conducted o not involve any e

restricted data, but the Applicant has agreed to safeguard any such data which might become involved in accordance with the requirement of 10 CFR Part 50. He Applicant will rely upon obtaining fuel as it is needed frors sources of supply available for civilian purposes, so that no diversion of special nuclear material for military purposes is involved (Applicant's Exhibit 2 at 4-7). Issuance of construction permits for the Blue Hills Units Nos. I and 2 will not be inimical to the common defense and security.

G. National Emironmental Polky Act Requirements and the Environmental Impact Statement

63. As required by 10 CFR Part $1, the Applicant submitted an Environmental Report. The Environmental Report, as amended, was received into evidence as Applicant's Exhibit 3. Pursuant to the require-ments of the National Environmental Policy Act of 1%9 and based on the environmental information submitted by the Applicant in the Environmen-tal Report, as supplemented, (Applicant's Exhibit 3) and on its independent analysis and review, the StafT prepared a Draft Emironmental Statement (DES) which was issued in June,1977. By a Notice of Availability published June 9,1977, the public was invited to comment on the DES (42 Fed Reg. 29571). Copies of the DES were also provided to appropriate Federal, Texas and Louisiana and local agencies for their comments (FSES, at iv; Tr. 249-51). In July,1978, the StafT published its Final Site Environmental Statement (FSES) (43 Fed Reg. 31997 (July 24,1978))

which includes, among other things, the full text of all commenti received with respect to the DES (Appendix A) as well as the Staffs responses to those coinments (Chapter ll). ne FSES was received into evidence as StafT Exhibit 7, 7A and 7B. In the preparation of its environmental impact statement, the StafT had discussions with a number of louisiana and Texas state, local and regional officials (FSES Section 1.2).

64. He FSES, as amended by the record of this proceeding, fully describes, as necessary to the Applicant's requested findings, the plant site, certain major systems of the propoe ed facility, the emironmental efTects of site preparation, plant and transmission line construction, certain of the environmental elTects of plant operation, the Applicant's preconstruction environmental monitoring program, alternative site and subsystem consid-erations.

65. ne Staff concluded on the basis of its analysis and evaluation, set forth in the FSES, including the consideration of alternatives that, subject i

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M

to certain conditions for the protection of the emironment, site G (Blue Ilills)is a suitable location for a nuclear station of the general size and type e.

described in the Applicant's environmental report and the emironmental statement (FSES at v). De Applicant has agreed to supply the additional information and abide by the emironmental conditions contained in Paragraph 7 cf the Summary and Conclusions and Sections 4.5.1,4.5.2 and 10.5 of the FSES. The Board, on the basis ofits consideration of the entire record, concurs that these are appropriate conditions to be imposed in the Partial Ini':al Decision. Further, the Board finds that the FSES as supplemented and corrected by the testimony and esidence presented in this proceeding, b a comprehensive and adequate review and evaluation of the emironmental impacts associated with the Applicant's proposed findings relating to plant construction and operation.

66. The site has been adequately imestigated and described, including current geology, hydrology, meteorology, terrestrial ecology, aquatic ecology, water use, regional demography, community characteristics, its r onomy and historical and archaeological sites, and national landmarks and land use of the site of the Blue Ilills Station and the surrounding area, including road, rail, transmission and water supply corridors (ER).

67. He plant cooling systems will operate on a closed cycle basis, utilizing rourd mechanical-draft cooling towers. Hrough buried pipelines.

the Toledo Bend Reservoir will prmide the source of makeup water and other water usage for plant operation. Similarly, buried pipelines will be used to discharge all plant elliuents to the Toledo Bend Reservoir (ER Section 3.4.2.1).

68. The nuclear sersice water system will consist of a water storage reservoir, cooling towers. and other equipment necessary to dissipate all residual and excess heat from the reactor and associated equipment. A circulating water blowdown will be maintained to prevent excessive salt buildup and scaling in the circulated water systems (ER Section 3.4.1.1:

FSES Sections 3.4.2,3.4.3).

69. De proposed intake site is on a point of sparsely vegetated land extending into the Texas side of the reservoir approximately 2.4 km (1.5 miles) upstream of the Toledo Bend Reservoir Dam (Tr. 94-7, 222).

Makeup water will be pumped from tinis location to the plant

, te (approximately 11.9 km or 7.4 miles) through underground pipes. Cooling tower blowdown from the circulating water system and other plant systems will be discharged into a discharge system collection sump and then pumped to the Toledo Bend Reservoir through underground pipelines. To the extent possible, the discharge pipelines will share the same right-of-way as the intake water piaes (ER Sections 3.4.3.2,3.4.3.5,3.4.4; FSES Sections 3.4.4, 3.4.5).

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70. State-of-the-art technology mists and equipment is available such that light-water-cooled nuclear power reactors of the general types being proposed and licensed, can be designed to provide emuents which meet the 9

dose design objectives set forth in 10 CFR 50, Appendix 1. Compliance with Appendix I will be considered at the construction permit stage (FSES Section 3.5).

71. He constmetion and operation of the Blue Ilills Station will result in the discharge of chemical wastes to the Toledo Bend Reservoir. The chemical wastes result from (1) the concentrating efTect on the dissolved J

solids in the intake water because of cooling tower evaporation and subsequent blowdown, (2) the addition of chemicals to the various systems during operation, which are eventually released at a controlled rate into the emuent stream, and (3) construction wastes. During operation, all waste water from the station, including cooling tower blowdown, will be directed tc the discharge system collection sump. After 'oeing monitered for pil, conductivity, temperature, and chlorine level, the waste water will be discharged to Toledo Bend Reservoir (ER, Fig. 3.6-1). The discharge from the facility can be carried out by the proposed system ir. compliance with all applicable state and Federal regulations on the discharge of chemicals, oil and other wastes (ER Section 3.6.2.l; FSES Section 3 6.l; Tr.100 3).

72. Makeup water for the cooling towers will be supplied from the Toledo Bend Reservoir and the blowdown will be discharged to the Reservoir. Sulfuric acid will be added to the circulating water to control bicarbonate alkalinity and prevent scale formation. To control biological growth in the circulating water system, chlorine will be added periodically.

Total residual chlorine will be monitored and the system designed so that discharge to Toledo Basin Reservoir can be limited to 0.2 mg/ liter total residual chlorine; actual limits will be set by the cogniunt regulatory authority having jurisdiction over such releases (ER Sections 3.6.2.2, 3.6.2.3; FSES Section 3.6.1.2; Tr.100-3).

73. A sewage treatment plant will be installed in the early construction stage. The basic treatment plant will be supplemented with temporary facilities to handle any excess now. He treated emuent from the plant will be discharged into a leach field during construction and startup o the Blue r

Ilills Station Unit 1. During operation, the treated emuent will be discharged into the plant eutfall. De treated emuent from this plant will comply with applicable discharge standards (ER Section 3.7.l; FSFS Section 3.6.2.1).

74. The two diesel generators will provide a standby power source for each unit and will be tested at least monthly. He pollutant levels resulting from this source will meet the applicable standt.rds. Solid waste, other than radioactive, will be disposed of ofTsite by a commercial contractor or onsite i

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by methods that meet all local and state standards (ER Sections 3.7.5,3.7.6; FSES Sections 3.6.2.2,3.6.2.3).

75. The electrical transmission system proposed for the Blue Ilills 9

Station includes approximately 200 miles of 500.kv lines (ER Section 3.t Tr. 91). To provide power for construction, about iI km (6.7 miles) of the 500-kv line will have underbuilt provisions for two 138/230-kv lines. Three individual routes are proposed by the Applicant to incorporate the Blue Hills Station power into the existing electrical network. The routes are fully

(

described in the ER. Two of the routes will terminate at substations and the 6

third will tie in with an existing 500-kv transmission system. Most of the land (i.e., approximately 901) traversed by the transmission routes is currently commercial forest, and approximately 52% of the proposed lines parallei existing rights-of way. All lines will originate at the station switchyard within the property boundaries (ER Section 3.9.1; FSES Section 3.7).

76. An approximately 20-mile railroad spur to connect the Blue Ilills Station with the nearby Atchison, Topeka and Sante Fe railroad (ER, Fig.

2.1-3) is proposed. This spur extends north then west from th: site, across generally undulating terrain that is primarily forest with only a small amount of pasture (ER Section 10.10.1.1; FSES Section 3.8.1).

77. The proposed makeup and discharge pipeline runs easterly from the site for approximately 8.5 miles to the intake and discharge locations on the Toledo Bend Reservoir (ER, Appendix F, Fig. II.4:1). 7he corridor requires approximately 170 acre. of land, including approximately 15 acres within the property boundary. Forests are primarily upland types with a variable mixture of pines and hardwoods. Most of the area has been or is scheduled for logging (ER Section 10.2.6.26; FSES Section 3.8.2).

78. The prcp md two-lane asphalt concrete access road extends north from FM 255 for approximately three miles to the site (ER, Appendix F, Fig. II.3:2). Aboat one-third of the road is within Gulf States' property.

Construction of the right-of-way will require approximately 40 acres of land, but only about 37 acres of construction clearing because of the overlap with the existing road (ER Section 10.10.2.l; FSES Section 3.8.3).

79. Site preparation will involve clearing of the land. Marketable timber will be removed and the remaining trees and brush will be used for erosion control or will be burned in accordance with state and local regulations.

That which cannot be burned will be buried in designated areas. During construction, soil will be excavated and used for site fill. Dust resulting from construction activities will be controlled by water trucks, sprinkler systems or chemicals and these measures will adequately minimize this impact. lierbicides will be used to restrict the regrowth of vegetation on shelled and paved roads. Pesticides, if used, will meet appropriate state f

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requirements. Noise resulting from site preparation and construction will be within acceptable ranges and noise impacts will not be significant. Because of the densely forested characteristics of the site area and the remoteness of 9

the site, visual impact will be negligible. Construction of the raihoad spur, access roads and water intake and discharge structures and pipelines and transmission lines will likewise require pern anent commitments ofland and require clearing of the rights-of-way (ER Section 4.l; FSES Section 4.1).

80. No natural landmarks listed in the Federal Reguter are within five miles of the proposed site. He proposed plant site has no known major archaeological significance; howewr, four archaeological localities were identified by the Applicant. He Applicant has stated that an archaeologist will be available for consultation through the corMaction period should any additional archaeological discoverie:, be made. Cnaditions for presena-tion of the four toedities and any future archaeological sites are prmted in FSES Section 4.5.2 (ER Section 2.3, FSES Sections 2.9.1, 2.9.2, 2.9.3, 4.5.2).

81. He transmission system proposed for the Blue Hills S ation includes approximately 200 miles of 500-kv transmission lines connecting the power plant with the Nona and Rivtrin substations and with the Gulf States Line 5'7. Rights-of-way for these transmission lines will require about 4,300 acres ofland. About 9(Tle of the totallength is through forested land,7% is through pasture land, and the remainder inclades transportation and water crossings and residentid and recreational land. Land currently used for grazing, farming and recreation will only be temporarily afTected by construction actisities and will remain available for such use after construction. No herbicides or pesticides will be used in clearing vegetation.

Cleared forest will represent a loss in annual timber production of approximately 400,000 ftVyear of pine wood. Approximately 52% of the total length of pioposed routes parallel existing railroad, pipeline or transmission line routes. Because of existing rural roads, no new access roads will be required. He Blm Hills-Nona transmission route crosses about 0.8 km (0.5 mile) of the big Thicket National Presen'e near the Jack Gore Baygall Unit. However, by paralleling an existing pipeline right-of-way, the impact will be minimal. No historical or archaeological sites will be significantly affected by the proposed rights-of-way (ER Sections 3.9.1, 4.2, 4.2.1.2, 4.2.3.3; FSES Section 4.1.3). At the time of the constructim permit application, results obtained from the surveys of the propostd j

transmission line routes to determine the presence of any proposed or nominated endangered species or threatened plant species or habitat critierj to their existence will be submitted (FSES Sections 4.3.1.2,10.5).

82. He principal construction irr pacts on surface water and ground-water will be those associated e.th construction of the intake and discharge 7

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structures and with relocation of an unnamed tributary of Mitchell Creek.

Construction of the proposed rnakeup and discharge structures will e

necessitate the disturbance of approximately 1,000 ft of shoreline and the removal of an estimated 50,000 yd'of material, of which approximately 82%

will be dredgings. He Applicant has stated that water used for construction L== mens of the main power plant will be provideo by a well field consisting of three wells, each with a 200 gpm capacity. He Applicant has stated that only one well will be used to meet normal construction requirements, and the three will be available for the emergency fire protection supply. Dewatering of groundwater seepage during excavation will be minimal because the deepest point of the proposed excavation will be approximately 15 feet above the water table. Construction of the plant and assoezated onsite facilities (excluding transmission corridors) will involve clearing about 366 acres of forested land and some erosion will be unavoidsble. Because of past land-use practices, the nature of the soils, rough topography and the drainage pattern, strict control procedures will be necessary to minmuze erosion. He Applicant has stated that a detailed crosior, control program will be submitted for Stafrapproval prior to or at the tin:e dat application for construction permits is made (ER Sections 4.1.1.2, 4.1.2.2; FSES Sections 4.2, 4.3.1.1, 4.5.2).

83. The transmission lines will have the greatest sisual intrusion where they cross residenti.tl or recreational areas; however, these efTects and others, e.g., those due to noise and avian mortality, are expected to be small and acceptable (ER Section 3.9.8; FSES Section 5.5.1.2).

84. He range of socioeconomic impacts of construction has been identified (Tr. 60-2,98-100. 196-214, 218-9) and is adequate to permit anticipatory planning by the affected areas. He Applicant has agreed to begin early planning discussions with local oflicials and reg'onal planners to discuss methods of limiting and adverse impacts that may occur as a result of plant construction. He Applicant shall submit for NRC review a report of the results of these discussions at least six months prior to the time that application for construction permits is made and at that time transmit copies of such report to the affected governmental agencies and regional planning agencies. '11 tis report shall contain a statement of the Applicant's position with respect to the following:

planning and mitigation funds, provisions for p'uning expertise, mobile home zoning ordinances, prepay-ment of taxes and as to making portions of the site available for public use (ER Sections 8.1,8.2, Appendix E; FSES Sections 4.4,4.5.2).

85. Present land use on the site is primarily forest production (FSES 4-1). About 148 ha (366 acres), or 12% of the 1220 ha (3,016 acres) site will be altered from their present use (i.e., timber management) by site preparation and onsite corridor construction (excluding transmission corriders). Of this, t

405

approximately 50 ha (123 acres) will be permanently committed during the lifetime of the plant (FSES 4-1). Since this acreage represents only a rninute fraction of the available forest land in this region, removal of the designated land will -'ot have a significant impact on local or regional land-use patterns (ER Table 4.1-1; FSES Section 5.1.1).

86. Drift resulting from operation of the mechanical-draft cooling towers contains dissolved and suspended materials that will be deposited on the landscape in a pattern dependent upon the prevailing meteorological conditions. Land-use impacts from this drift deposition on vegetation are expected to be mimmal. No additional ground-level fogging or icing will result from the cooling tower operation (FSES Sections 5.1.1, 5.3.1.2 and 5.5.1.1). During certain weather conditions, the cooling tower plume will be visible for several kilometers. The nearest airports, located 17 miles south and 10 miles west southwest of tb site, are not expected to be adversely affected by the plumes (ER Section 5.1.7; FSES Section 5.1.1).

87. Operation of the proposed electrical transmission system will require the periodic maintenance of approxi nately 200 miles of 500-kv transmis-sion line rights-of-way. Existing rights-of-way will be paralleled for 52% of the total length. The approximately 4,300 acres of new land required is presently about 91% forested and will be replaced and maintained in a grass. herbaceous and woody shrub stage by a three-to five-year mowing cycle. The amount and use of land is not expected to significantly afTect overall land-use in the area. Grazing, farming and recreational land crossed by the transmission lines will remain available for their respective uses (ER Section 3.9.8,5.6; FSES Section 5.1.2).

88. All rare and endangered species are available externally to the site and their populations are not expected to be significantly affected by construction and operation (Tr. 64-6). A comprehensive forest maragement program including consideration of the red-cockaded woodpecker habitat will be furnished for the site at or prior to the time that application for construction permits is made (Tr. 93). Construction actisity on the transmission lines, access road, railroad spur and water pipelines will be monitored to ensure that the effects of construction on the red-cockaded woodpecker are considered. The route of the railroad spur will be adjusted to minimize, to the extent practicable, impact to bog areas. Overall, the impacts on speci-s populations from the reduction in forest habitat caused by constructinn are expected to be minimal (FSES Sections 4.3.1.1,4.3.1.2).

89. Loss of reservoir water resulting from evaporation and drift losses from the proposed trachanical-draft towers is not expected to afTect any other reservoir-water usage. Although there will be chemical discharges, the discharges from the station to the reservoir will not significantly affect any present or known future recreational or consumptive uses of the Toledo I

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Bend Reservoir or lower Sabine River Basin (ER Responses 5.8 (p. R-108) and 8.2 (p. R-112); FSES Section 5.2.1).

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90. Since the proposed Blue Hills Station is located in a remote area and there are no major groundwater users near the site, changes in groundwater quality and availability due to plant operation are not anticipated. The 1

Applicant has stated that wells used for construction water supply will be capped. However, these wells would not be used for potable water consumption, demineralized water makeup and fire emergency. If so, the use of these wells not be expected to significantly affect other groundwater i

usage in the area (FSES Section 5.2.2).

91. The heat dissipation system presently proposed by the Applicant for the Blue Hilh Station will consist of a closed-loop cooling syst,em with mechanical-draft cooling towers. At full rated load, a small amount of heat will be released to the Toledo Bend Reservcir as cooling tower blowdown, and substantially r'! of the waste heat will be dissipated to the atmosphere.

The environmeval efTects of operation of this system will be those associated with cooling tower ble wdown (thermal ud chemical emuents discharged to the reservoir) and cooling tower effects (such as drift deposition and ground-level fogging and icing) (FES Section 53). A potential exists for background total dissolved solids buildup above required levels during periods when the reservoir is stratified because of insuflicient reservoir circulation and mixing beNeen the hypolimnion and epilimnion. The Applicant should analyze breaching the Cofferdam No. 3 to reduce the stratification potential (FSES Sections 533,53.4).

92. The proposed discharge system consists of a multiport submerged diffu~r. The plant efTluents will have to be discharged in such a manner as to co.aply with all ai;plicable Federal and state requirements. While the discharge from the facility will take place in the State of Texas, inasmuch as the discharge structere will be located near the old Sabine River channel, the boundary between Texas and louisiana, it is possible that waters within Louisiana may be afTected (Tr. 252-4). Because the present water quality requirements of the two states in the Toledo Bend Reservoir are nearly identical, t'.ere would appear to be no conflict. Secondly, both the Staff and Applicant have shown that effluents discharged into the Toledo Bend Reservoir will be diluted to required levels within a mixing zone which extends relatively short dis'.ances, i.e., less than one nundred feet, i. m the discharge port. Thus, a relatively small vdume and/or area of the reservoir would be afTected. Lastly, at the appropriate time, both Texas and l

Louisiana would have an opportunity to participate in the standards setting l

for discharges from the Station. See Federal Water Pollution Control Act, Sections 401(a)(1) and (2), and 402. The discharge of chlorine in compliance with governing regulations will not result in any adverse impacts on the i

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aquatic organisms in the Toledo Bend Reservoir and downstream of the Toiedo Bend Dam. Sanitary discharges will also be in compliance with 9

appropriate requirements. De impact of discharges is expected to be minimal (FSES Sections 5.3.3,5.5.2.2).

93. The transportation of cold fuel to a reactor, or irradiated fuel from a

the reactor to a fuel reprocessing plant, and of solid radioactive wastes from H

the reactor to burial grounds is within the scope of the NRC report entitled,

" Environmental Survey of Transportation of Radioactive Materials to and from Nuclear Power Plants." Re environmental efTects of such transporta-tion as contained in Table S-4 to 10 CFR Part 51 have been taken into accour.t in the environmental impact analysis of the Blue Ilills Station (FSES Sections 5.4.4 and 7.2).

94. De environmentslimpact of the uranium fuel cycle has been taken into account in the ensironmental impact analysis of the Blue 11 ills Station (FSES Section 5.6).

95. He population in the Blue flills region will increase by approxi-mately 700 persons when operations begin. Of these, approximately 200 will be employed in plant operations, while the remainder will compose the secondary labor force and family members of the work force. Regional income will be increased by the presence of the primary and secondary labor force employed in the Blue Ilills region. Retail sales are also expected to increase as a result of the new population doing business in the region (ER Appendix E: FSES Section 5.7.2).

96. An adequate monitoring program to deterraine the circulation process in the lower basin of the Toledo Bend Reservoir was conducted to serve as a baseline to assess the physical efTects cf die proposed cooling system. The program provided: (1) detailed data on the bathymetry and physiographic features of the lower basin; (2) detailed current profiles at selected stations; (3} temperature structure during the late summer and early stages of fall mixing; and (4) seasonal variation of temperature structures. In addition, a special field study was implemented to determine the dispersion characteristics of the lower reservoir basin by a long-term fluorescent dye release at the site of the proposed blowdown discharge (ER Appendix D; FSES Section 6.1.1).

97. Subject to the conduct of a Preconstruction Supplemental Monitor-i'g Program recommended by the Staffin the FSES, the baseline aquatic

.ncnitoring program is adequate (ER Appendix F,Section IV; FSES Section 6.1.5.2). An offsite preoperational radiological monitoring program to provide for measurement of background radiation levels and radioactisity in the plant envuons will be reviewed at the construction permit stage.

He preoperational program, which provides a necessary basis for the operational radiological monitoring program, will also permit the Applicant I

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l to train personnel, and to evaluate procedures, equipment and techniques.

The program will be initiated two years pric-to operation of the facility (FSES Section 6.1.2).

98. Adequate baseline studies of surface water < and groundwater have been performed and an adequate onsite preoperadonal meteorological I

program has been conducted. This baseline terrestrial monitoring program is deemed to be satisfactory. The preoperational terrestrial monitoring program will be evaluated at the construdon permit stage (ER Section 2.5, 2.6, Appendix F, Sections 11 and Ill; F',ES Sections 6.1.3,6.1.5).

99. The Applicant plans essenually to continue the preoperational ofTsite radiological monitoring program during the operating period.

However, refinerrents may be made in the program to reflect changes in land-use or preoperational monitoring experience. Detailed information on the thermal, meteorological, hydrological, ecological and chemical opera-tional monitoring programs will be provided in the operating license application (ER Section 6.2.1.2; FSES Section 6.2).

100. He environmental impacts of postulated accidents invohing radioactive material during operation and during transportation have been adequately considered in the environmentalimpact analysis (FSES Sections 7.1 cnd 7.2).

101. He need for power from any units proposed for construction at the Blue Hills site will be evaluated at the construction permit phase (Foreword to ER Section 1.0).

102. He review of alternative energy sources will be made at the construction permit phase (FSES Section 9.1; Tr. 67-68).

103. He Applicant's service area extends 400 miles across louisiana and into East Tc).as and is subdivided into three divisions of major power demand:

the Baton Rouge area, the Lake Charla area and the East Texas area (ER Fig. 9.2-4). The Applicant stated that a comparison of the three areas showed that each area has conditions suitable for nuclear plants (ER 9.2.1.5.7). He Applicant noted that, since the louisiana power demands are expected to be met by the River Bend Nuclear Power Station near Baton Rouge and two additional coal units near Lake Charles, and since further load demand is anticipated in the East Texas-West Louisiana area, siting a plant elsobere to serve the East Texas-West louisiana area could lead to economic and reliability problems generated by longer transmission lines (ER 42, p. R-19; Tr.173). He Applicant conducted a comprehensive well-documented site selection process within the East Texas-West Louisiana part of its service area. His process considered, among other factors, site area characteristics, geology, tectonics, seismology, population, power transmission, land use, water availablity, transporta-tion and air quality. It identific i the Blue Hills site (Site G) as the optimal

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location for a nuclear power station, with proper mitigation measures, among 49 sites considered in the East Texas and Western Louisiana O

(Western region), that area being selected on the basis of load demand.

(Sites outside the Applicant's senice territory were among those examined (Tr. 220).) At least two specific sites, among these 49 s;tes, in the Central o

i and Lake Charles region of Applicant's serice area, i.e., outside the Western region, were considered (ER at Fig. 9.2-9 and 9.2-4). Moreover, the Atchafalya River on the eastern portion of the Gulf States service area region was considered and rejected as a result of safety and emironmental considerations (ER at R-57-R-58). Transmitting power from the eastern or central portion to the projected power demand in East Texas would necessitate the construction of many additional miles of transmissron lines, increasing en 'ironmental impacts and capital expenditures (M and ER 9.2.1.5.2). As a result of the initial review by the Applicant,35 of the 49 sites were eliminated from further consideration. He second phase of the site analysis eliminated eight additional sites based upon the distance from existing transmission lines and in-depth geological and emironmental analysis. He third phase of the site analysis censisted of a detailed investigation of six remaining sites, one ci which was examined at the request of the Staff. He sites were evaluated with respect to their ability to utilize nuclear, oil and coal generating facilities. Review of the site selection process employed by the Applicant within this area did not reveal any sites there that are obviously superior to the one selected by the Applicant (ER Section 9.3.4; FSES Section 9.2.5; Tr.173-7). The Staff reviewed the information provided by the Applicant as provided in 10 CFR Section 2.101(a-1)(1) aad the Staff personally visited the six candidate sites selected for in-depth analysis (FSES Section 4 2.5). No major naw was found in the site, and the site appears to be a good site for a nuclear facility if appropriate mitigation action, particularly in regard to socio-economic impacts, is taken before a construction permit is issued (Tr.173). Thus, we find that the site selection process for the East Texas-West louisiana area included methods, criteria and considerations given to alternative sites that are acceptable and in full compliance with NEPA and NRC requirements.

Alternatives to the heat dissipation system se'ected were also considered and it was concluded that the circular mechanical-draft towers were optimal. Among the alternative heat dissipation systems considered by the Staff, no system is superior o the mechanical-draft circular cooling towers selected for use by the Applicant (ER Section 10.1; FSES Section 9.3.1.9).

104. He Applicant carefully considered alternatives with regard to railroad right-of-way, access road, makeup and discharge water lines and transmission line corridors prior to selecting the proposed routes and on an l

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overall basis, no superior routes to those selected by the Applicant have been identified (ER Sections 10.3,10.9,10.10.l 10.10.2; FSES Section 9.3).

105. Among the alternatives considered, the proposed intake (site E),

from the standpoint of overall suitability and the physical location and design of the discharge system in relationship to the Toledo Bend Reservoir is such as to minimize environmmtalimpacts associated with construction and operation of the facility and are acceptable (ER Section 10.2.7; FSES Sections 5.5.2, 9.3 ; ; Tr. 94-7, 222).

106. Inasmuch as the final design of the intake structure has not been completed, review of the actual design and its impact on the Toledo Bend Reservoir will be deferred to the construction permit review phase. The Applicant will submit a report assessing entrainment and impingement associated with the intake structure as well as the feasibility of an intake structure located ofTshore in a deeper region of the reservoir at or prior to the time that application for construction permits is made (FSES Section 5.5.2.1).

107. Irreversible and irretrievable commitments of resources have been adequately discussed and analyzed in the environmental impact analysis.

The ultimate cost benefit balancing process will be deferred until the construction permit phase. However, the comprehensive analyses conducted by the StafT and Applicant have revealed nothing that would preclude use of the Blue Ilills site for a nuclear power station. Neither have the Staffs analyses identified on an overall basis alternatives to the site or proposed plant features, including transmission lines, railroad and road access. intake and discharge pipelines, discharge system and proposed intake site E that are superior to those selected by the Applicant.

108. When the actual design of the Blue liills Station Units I and 2 is developed and the Appliant desires to proceed with his application for construction permits, the Applicant will provide, among other items, the following to the StafT:

(1) An evaluation, with necessary supporting information, of the similarities and difTerences between the actual station design and the station design evaluated in the Final Site Environmental Statement. 'Unis evaluation will permit a determination of whether the impact of the actual station design will or will not be significantly greater than or different from the impacts described in the Final Site Environmental Statement.

(2) If the actual plant design will produce an impact or an activity not previously or adequately evaluated in the Final Site Environmen-tal Statement, the Applicant will prepare an environmental evaluation of the design change or new activity. When the L

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1 evaluation indicates that such design change or activity may result in a significant adverse environmental impact that was not 9

previously or adequately evaluated or that is significantly greater than that evaluated in the Final Site Environmental Statement, the Applicant shall provide a written evaluation of such design change or activity to the Director, Division of Site Safety end Environ-mental Analysis for review.

(3) Suflicient information to permit evaluation of the need-for-station and consideration of alternative energy sources, based on a specific date for commencement of commercial operation and revised time sensitive information (e.g., population growth load forecasts, cost estimates, etc.). Unless significant new information is obtained that substantially affects the conclusions reached on alternate sites, no new evaluation of this subject will be required.

(4) A comprehensive evaluation of the raultilevel siphonintake system (See Final Site Environmental Statement Section 9.3.2) with fish-return facility, unless the state-of-the-art is such that it is appropriate to review this alternative.

(5) An evaluation of the possibility of making a breach in CofTer Dam No. 3 to reduce the puential for total dissolved solids (TDS) buildup in Toledo Bend Resersoir.

(6) Data on the distribution and seasonal abundance ofichthyoplank-ton, adult fish, and the Asiatic clam (Corbicula sp.) in the open-water regions of Toledo Bend Reservoir and a proposed method for control of the latter.

(7) Data on the occurrence of striped bass spawning in Toledo Bend Reservoir.

(8) Quantitative data on the suspended solids, bed load sediments, and periphyton communities in Copperas, Mitchell, and Mill Creeks.

(9) A detailed crosion control plan as discussed in Final Site l

Environmental Statement Sections 43.1.1 and 4.3.2.

(10) A complete description of the pesticide and herbicide treatment program should the Applicant decide that these chemicals are to be used for rights-of-way maintenance as discussed in FSES Section 5.5.1.2.

(Il) A detailed description of all preoperational monitoring prograr.s (those which will be implemented after the Construction Permit is issued, but before an Operating License is gr.mted) and the preconstruction supplemental aquatic monitoring program.These l

programs should incorporate those suggestions offered by the Staffin Final Site Emiromnental State.nent Section 6.1.5.1.

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(12) Detailed information and appropriate maps of any significant new changes in the environmental status (e.g., land use, habitats of rare, threatened or endangered species) of the proposed transmission line, pipeline, and railroad access routes.

(13) If the construction schedule described in Final Site Environmen-tal Statement Seuion 4.4 that provided the basis for the Stafl's assessment of community impacts is not achieved, then updated information should be provided on the socioeconomic parameters discussed in this section.

(14) Results of planning negotiations among the Applicant, local officials, and regional planners (Final Site Environmental State-ment Section 4.4: 4.4.12). He Applicant shc,tdd begin early planning negotiations with local officials and regional planners to discuss methods of limiting the adverse impacts that are likely to occur as a result of plant construction. localitems for discussion could include, for example, planning expertise, development of mobile home roning ordinances, prepayment of taxes, and incentives for workers to commute greater distances. In addition, these negotiations should consider public use, where possible, of the open space used for this project. The Applicant will submit a discussion of its activities carried out under this item and the mitigative activities it will undertake for Staff review at the time a Construction Permit application is filed (rufra, par. 84).(15).

(15) Results obtamed from surveys of the proposed transmission corridor routes to determine the presence of any proposed or nominated endangered specie. or existence (Final Site Environ-mental Statement Section 4.3.1.2).

(16) A forest management plan for the site that includes coulderation of the red-cockaded woodpecker.

(17) Final plans for minimizing construction impacts or for avoiding the bog communities along the proposed corridor for the railroad spur and transmission line C.

(18) Final designs for both the temporary and permanent sewage treatment facilities (Final Site Environmental Statement Section 11.1.4.6) and revised estimates of water requirements (Final Site Environmental Statement Section 11.l.3.1).

(19) Information on the specific methods to be employed to control particulate emissions from the onsite concrete batch plant (Final Site Environmental Statement Section 11,1.3.9).

109. He Applicant will be required to honor the following commit-ments to limit adverse efTects during construction:

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e (1) Marketable timber will be removed from the site, and remaining trees and brush will be cleared and either used for erosion control 9~

or %rned. All burning will be in accordance with State and Federal regulations. Tree stumps and other organics not burned

• Coe buried under adjacent waste areas.

g) Soil excavation from borrow areas that is unsuitable for fill will be deposited in designated waste areas, and some topsoil will be set aside for restoration of the borrow areas after constrection is completed. Tops of borrow areas will be covered with stored topsoil and then planted with slash and loblolly pines (Final Site Environmental Statement Section 4.1.1).

(3) Fordable su ams will have shell or gravel placed in the stream bed; other streams will have temporary bridges er culverts installed during construction.

(4) The amount of spoil drifting from the dredging for the makeup intake and discharge structures will be limited to approximately 1% of the total spoil dug from the bottom. Shoreline vegetation will not be disturbed except where it is necessary to gain access to the reservoir.

(5) To minimize disturbance to the reservoir, excavation and construc-tion of the makeup intake structure will take place behind a sheet piling wall. Excavated and dredged material from construction of the makeup intake and makeup channel will be removed to a spoil area on the peninsula; material dredged for the discharge pipe will be deposited adjacent to the discharge pipe.

(6) No explosives will be used in site excavations.

O) Temporary construction facilities will be removed when construc-tion is completed and these areas will be paved, seeded, sodded, and/or planted r.ccording to a prescribed plan.

When no longer in use, temporary construction roads will be disked, scarified, and seeded, and the slope intersections will be rounded to minimize erosion and provide a natural appearance (side slopes in borrow and waste areas will receive similar treatment). All restored areas will be graded to prevent accumula-tion of standing water.

(8) Permanent lawn areas will be planted as soon as feasible, (9) A natural border along the periphery of the cleared plant site will r

be encouraged by allowing natural reseeding and by planting indigenous vegetation.

(10) Dust mustbe controlled during site preparation and construction through the use of water trucks, sprinkler systems, and chemicals such as Soil Penetrant 400, EARTH-PAK, and COHEREX.

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(11) Erosion control will include grading, placement of slash in draws and water courses adjacent to cleared areas, and protection of 9

slopes using peripheral interception ditches, catch basins, and drop pipes equipped with energy dissipators. Additioc d'y, slopes will be treated using chemical soil binders (e.g., Aerospray S2

)

Binder or Curasol AE) and then mulched and seeded.

(12) During construction, wastes from portable chemical toilets will be transported. ofTsite for proper disposal. Wastes from permanent toilet and wash facilities will be processed in a sewage treatment plant; all treatment plant discharges will meet applicable State and Federal standards.

(13) Floor drain efIluent from shop facilities will be discharged'into the storm drain system.

(14) Petroleum product wastes will be collected and removed from the site. Waste interceptors will be provided to remove construction wastes (e.g., oils, greases, paints, or solvents) and minimize the impact on neighboring surface waters.

(15) Wash water from the batch plant and from concrete trucks will be discharged into a specially constructed ditch, where cement particles can settle out before the water spills into a berm-enclosed waste area that serves as an evaporation-absorption field. After completion of the power plant, the earth berm will be graded to the elevation of the waste area. Waste loads of concrete will be dumped at a designated waste area.

(16) Controlled spray of herbicides (e.g., Bromacil or Monuron) will be used to inhibit regrowth of vegetation on shelled and paved areas onsite. Application rates of herbicides and pesticides will be such that concentrations in the stream systems will not exceed Texas Water Quality Board requirements; aquatic concentrations will be monitored at the U. S. Geological Survey Gauging Station on Mill Creek.

Pest control, when necessary, will include localized controlled application of a short-lived malathion class of compound (mala-thion, parathion, LPN) for insects and may include poison baits (e.g., Pyralin or Fumasol) for rats and mice. However, the use of traps for problem rodents is preferred.

(17) Combustible construction wastes will be burned, and noncom-bustible wastes will be disposed of within the borrow area by landfill methods; both operations will meet applicable State and Federal regulations. Outdoor burning, construction activity, and application for permits shall be accomplished in accordance with i

i 415 2 y' m":?

the Texas Clean Air Act and the Rules and Regulations of the i

Texas Air Control Board.

G (18) Noise-reducing apparatus for construction equipment will com-ply with Federal and industnal standards.

(19) During construction, emuent from the sewage treatment plant L"

will be discharged into a teaching field to prevent as many of the nutrients as possible from reaching the streams.

(20) EfTects of siltation upon the creek systems will be minimized through extensive erosion control efforts.

(21) No historical land:aarks or archaeological sites within an 8-km (5-mile) radius of the plant site will be disturbed by construction cf the statior: Any archaeological site that is endangered by transmission ime constructien will be reexamined and tested.

The Applicant shall not disturb any archaeological site or locality or any historical site without prior approval from the StafT. Should any additional archaeological discoveries be made either on the plant site or within the rights-of-way, the Applicant shall notify the Staff immediately. The four localities identified in FSES Section 2.9.2 shall be posted and an onsite archaeologist shall be available when these sites are in danger of being disturbed unless the State Histone Preservation Omcer determines that these localities do not meet the criteria in the National Register of Historic Places (Addendum 2) for inclusion in the Register.

(22) Where a residential or recreational area is serviced by a single road and this road is obstructed by construction activities, n alternate access route will be provided.

(23) Existing roads will be used for access to the transmission corrida s.

(24) A forest management plan that will include consider; tion of the red-cockaded woodpecker will be submitted with the Construc-i tion Permit application. Construction activity on the right-of-way for the proposed transmission line A should be carefully monitored by a biologist to ensure that areas with red-cockaded woodpecker nesting or roosting trees are not destroyed. Likewise, on proposed routes B and C, careful investigation should be made for nest and roost trees and areas with active red-cockaded woodpecker colony use, and these areas should be avoided.

(25) An effort will be made to minimize or avoid disturbance of bog communities within the proposed.orridor for the railroad spur and transmission line C.

(26) To ensure continued and adequat: protection of endangered species during additional development phases of the preposed i

t

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facility, the Applicant should maintain consultations with the U.S.

Fish and Wildlife Service.

111. CONCLUSIONS OF IAW L=%

110. Following completion of Commission and Atomic Safety and Licensing Appeal Board review, this Partial Initial Decision shall remain in effect for a period of five years or, where the Applicant for the construction permit has made timely submittal of the information required to support the application, as provided in Section 2.101(a-1) mtil the proceeding for a permit to construct a facility on the site identified in this Partial Initial Decision has been concluded, unless the Commission, Atomic Safety and Licensing Appeal Board, or Atomic Safety and Licensing Board, sua sponte or upon motion by a party to the proceeding, finds that there exists significant new information that subs:antially affects the earlier conclusions and reopens the hearing record on site suitability issues.

I11. Upon good cause shown, the Commission may extend the five-year period during which this Partial Initial Decision shall remain in effect for a reasonable period of time not to exceed one year.

I12. Based upon our review of the entire record in this proceeding, which are reflected in the foregoing finding,, the Board has concluded, to the extent ofits review, that the Blue Hills site (Site G)is a suitable location for nuclear power reactors of the general size and type proposed under the requirements of the Atomic Energy.\\ct of 1954, as amended, and CemnZssion regulations promulgated thers under.

I13. Based upon our review of the ent e record in this proceeding and the foregoing findmgs and in accordanc: with 10 CFR Part 51 of the Commission's regulations, the Board ha concluded that the application and the record of the proceeding contain suflicient information and that the review of the application by the Staf7 has been adequate to support the foregoing findings and the followiponclusions and order.

I14. We conclude that:

A. The environmental review conducted by the Staff pursuant to the National Environmental Policy Act of 1%9 has been adequate to support issuance of this Partial Initial Decision; B. The requirements of Sections 102(2)(A)(C) and (E) of the National Environmental Policy Act of 1%9 and 10 CFR Part 51, to the extent applicable, have been complied with in this proceeding; C. The Board has independently considered the final balance among l'

conflicting factors contained in the record of this proceeding. After l

weighing the environmental, economic, technical and other bene-l 1

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c fits against environmental and other costs, and considering available alternatives, the Board has determined that the Blue Hills site (Site G) is suitable with respect to the factors reviewed, and the Partial Initial Decision should be issued subject to the conditions for the protection of the emironment discussed in paragraph 65 I

and set forth in paragraphs 103 and 109, supra, as well as the following:

(1) When the actual design of Blue Hills Station Units I and 2 is developed and the Applicant desires to proceed with its application for Construction Permits, the Applicar.! shall provide to theStafT the information specified in Findings 37, 91 and 108.

(2) The Applicant shall take the necessary actions set forth in Finding #109 to avoid unnecessary adverse environmental impacts from construction activities.

(3) The Applicant shall establish a control program that shall melude written procedures and instructions to control all construction activities as prescribed in Finding #109 and shall provide forperiodic management audits to determine the adequacy of implementation of environmental conditions.

He Applicant shall maintain sufTicient records to furnish evidence of compliance with all the emironmental conditions herein.

(4) Before engaging in additional construction activities which may result in a significant adverse emironmental impact that was not evaluated or that is significantly greater than that evaluated

~

by the Staff, the Apphcant shall provide written notification to the Director, Division of Site Safety and Environmental Analysis, and obtain approval to proceed.

(5) If unexpected harmful efTects or evidence of irreversible damage are detected during facility construction, the Applicant shall provide to the Staff an acceptable analysis of the problem and a plan of action to eliminate or significantly reduce the harmful efTects or damage.

(6) De Applicant shall monitor the total residual chlorine concentration in the discharges toToledo Bend Reservoir and shall design its system so that the concentrations can be limited to the value established by the Environmental Protection Agency in the NPDES permit for the Blue Hills Station.

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(7) The Applicant shall submit a plan to the Department of the Interior acceptable to the National Park Senice that 9

desenbes the methods for mitigating the environmental impact in crossing ih: Big Thicket National Preserve along proposed transmission lir.e B.

II D. He issuance of pernuts for construction of the facilities, if built, in.,ofar as they are based upon the findings and conditions herein, will not be inimical to the common defense and security.

IV. ORIW2 IT Id ORDERED, in accoriance with 10 CFR Sections 2.760, 2.762, 2.785, and 2.786, that this Partial Initial Decision shall constitute, with re<pect to the matters covered therein, the final action of the Commission thirty (30) days after the date of issuance hereof, subject to any review pursuant to the Commission's Rules of Practice. Exceptions to this Partial Initial Decision may be filed by any party within ten (10) days after senice of this Partial Initial Decision.

Within thirty (30) days thereafter (forty (40) days in the case of the Staf1),

any party filing such exceptions shall file a briefin support thereof. Within thirty (30) days of the filing and cenice of the brief of the Appellant (forty (40) days in the case of the Staf1), any other par'y may file a briefin support of, or in opposition to, the exceptions.

1 T IS SO ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD Gustave A. Linenberger ADMINISTRATIVE JUDGE Dr. Linda W. Little ADMINISTRATIVE JUDGE Marshal' E. Miller ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 28th day of April,1981.

[ Appendix A has been omitted from this publication but is available at the NRC Public Document Room,1717 H Street, N.W., Washington.

l D.C.]

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I Cite as 13 NRC 420 (1981)

LBP-81-11 9

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I

ATOMIC SAFETY AND LICENSING BOARD Hefore Administrative Judges:

Herbert Grossman, Chairman Gustave A. Uneberger, Jr.

Dr. Frank F. Hooper In the Matter of Docket No. 50-395 SOUTH CAROLINA ELECTRIC &

GAS COMPANY, et al.

(Virgil C. Summer Nuclear Station, Unit 1)

April 30,1981 Upon balancing the five factors set forth in 10 CFR 52.714(a)(1), the Licensing Board grants an untimely petition to intervene (subject to petitioner's taking Gie proceed 5g as it currently stands), admits petitioner's con'entions dealing with emergency planning and corporate management, and denies its other contentions.

RULES OF PRACTICE: UNTIMElX INTERVENTION PETITIONS Failure to read the Federal Register does not justify the untimely filing of an intervention petition. New England Power and Ught Co. (NEP Units 1 and 2), LBP-78-18,7 NRC 932,933-34 (1978).

RULES OF PRACrlCE: UNTIMELY INTERVENTION PETITIONS Newly acquired standing or organizadomd status does not constitute justification for an untimely filing of an intervention petition. Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units I,2,3 &

4), ALAB-526,9 NRC 121,124 (1979).

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RULES OF P1 ACTICE: UNTINTELY INTERVENTION PETITIONS A petitioner cannot sit back and observe the proceeding, and then intervene upon deciding that its interests are not being adequately protected G

by existing parties. Pacific Ge and Electric Co. (Diablo Canyon Power Plant, Units 1 and 2), ALAB-583,11 NRC 447,448 (1980); Duke Power Co.

(Cherokee Nuclear Station, Units 1,2 & 3), ALAB-440,6 NRC ti43,644

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(1977).

RULES OF PRACTICE: UNT131ELY INTERVENTION PETITIONS In determining the extent to which the grant of an untimely intervention petition will delay a proceeding, the appropriate test is the measure of delay directly attributable to the tardiness of the petition. Ieng Island Lighting Co. (Jamesport Nuclear Power Station, Units I and 2), ALAB-292, ? NRC 631,650, fn. 25 (1975).

PARTIAL ORDER FOLLOWING PREHEARING CONFERENCE (Admitting FUA on Contentions 1, 2, 7-13 and 27, and Denying FUA's Other Contentions)

On March 22,1981, nearly four years after the notice of opportunity for hearing in this operating license proceeding was published (42 Fed. Reg. 20203, April 18,1977), and three months before the hearing had already been scheduled to begin (on June 22,1981), Fairfield United t Sn (FUA) filed a petition to intervene, together with a supplement thereto setting forth 27 contentions. For each contention, petitioner stated a basis which, in many cases, included names or descriptions of potential witnesses and references to supporting documentation. By the time FUA's petition was filed, the Licensing Board had issued an order (on March 10,1981) setting a final prehearing conference in the proceeding for April 7,1981, and had requested the existing parties to file their suggest: ns by March 31, 1981 with regard to all actions to be taken by the Board at the conference.

Applicant filed a response on March 30,1981 and suggested, among other things, that FUA's petition be considered at the conference. Applicant served that response on FUA and the Board also arranged for its March 10, 1981 order setting the prehearing conference to be served on the petitioner.

Petitioner appeared at the prehearing conference by a non-attorney member, Dr. John RuofT, to argue in support of the contentions it had raised and by an attorney, Robert Guild, Esq., a member of the bar of the State of South Carolina making a special appearance to argue the merits of i

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the late intervention. The Staffjoined applicant in arguing against allowing intervention at this late date, and later reaffirmed this position in a written opposition to the petition, which it filed on April 13,1981. The main thrust of the applicant's and Staffs opposition to the petition is the purported lack of cognizable " good cause" for the late filing and the alleged delay that might be caused by allowing an interventien so chortly before the scheduled hearing date. The major reasons given by petitioner for the late filing were that the petitioner was only recently incorporated, on September 5,1980; l

that its members have only recently cheated themselves with regard to the Summer Nuclear Station through participation in petitioner's program; that some of petitioner's members have only recently moved to Fairfield County; that the members,who have lived for many years in the County have until recently relied upon information from applicant concerning the l

operations of the plant, which they now believe to be false and misleading; that petitioner's members who resided in proximity to the facility at the time of the filing of the application for the operating license in 1977 lacked knowledge that they had interests that might be adversely afrected by the granting of the license, of their rights and remedies available to them, and of the notice of opportunity for hearing published in the Federal Register; that until mid-Febmary 1981 petitioner believed that it had no right to participate as a party in this proceeding since the deadline for intervention had passed in May 1977; that it believed until mid-February 1981 that its interests were represented by the existing intervenor Brett Bursey, when it was informed that Mr. Bursey's ability to put on an aflirmative case was restricted by the Licensing Board; and that the ability of petitioner to inform itself of developments in the proceeding had been severely hampered by the absence for several years of a properly managed local public document room in Fairfield County.

In addition to alleging a lack of good cause and inevitable delay that would result from samitting petitioner, applicant and Staff applied the other three factos contained in the five-factor test of 10 CFR 92.714(a)(1) against the petition to conclude that it should not be granted. They did not, however, challenge FUA's standing to intervene or the legal sufficiency of its contentions, and it is clear that they could not:

the members reside well within the geographical limits required for intervention and many of the contentions were either encompassed in contentions admitted by the Board on behalf of intervenor Brett Bursey or would otherwise be ruled l

admissible in an operating license proceeding.

l The Board rules on the intervention by dividing the contentions into two parts in applying the five-factor test of 10 CFR $2.714(a):

(1) the corporate management contentions (1, 2, 27) and emergency planning contentions (7-13); (2) all other contentions. As specifically discussed 422 1

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below, by applying the five-factor test to these two categories of contentions in the current posture of the proceeding we admit FUA to the proceeding only on the corporate management and emergency planning contentions.

In doing so, we require that the newly admitted intervenor take the O

proceeding as it currently stands with formal discovery concluded and only the specifics of FUA's aflirmative case on those issues accepted as they were detailed in the supplemental petition and the prehearing conference.

Good Cause for the late Intervention The Board agrees with applicant and Staff that, with respect to the good cause requirement, petitioner had not substantiated its charges of misrepre-sentation by the applicant in its dissemir,ation ofinformation to the public; petitioner has not demonstrated that it exercised due diligence with regard to its rights, remedies and its potential interest in the proceedings; failure to read the Federal Register does not justify non-timely filing of a petition (New England Power andI.ight Co. (NEP Units 1 and 2), LBP-78-18,7 NRC 932, 933-934, (1978)); newly acquired standing or organizational status is not an excuse for delay (Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-520,9 NRC 122,124 (1979)); a petitioner cannot A b;.ck and observe the proceeding, and then intervene upon deciding that its ituerest is not being adequately protected by existing parties (Puget Sound Power a Light Co. (Skagit Nuclear Power Project, Units I and 2), ALAB-559,10 NRC 162,172-173 (1979), vacated as moet CL1-80-34,12 NRC 407 (October 9,1980); Duke Power Co. (Cherokee Nuclear Station, Units I, 2 and 3), ALAB-440, 6 NRC 643, 644 (1977);

Pacific Gas and El,rtric Co. (Diablo Canyon Power Plant, Units I and 2),

ALAB-583,1I NRC 447,448 (1980)); and, the poor maintenance of a local public document room (which the Board judges to be the fact upon reading the submittals and considering the discussion at the prehearing conference) does not justify the four years of delay and failure to raise the matter with NRC or the applicant.

With reg.trd to petitioner's reliance upon post-TMl requirements as providing good cause for late intervention, however, the Board does not agree with applicant and Staff that diey do not provide good cause for the late intervention with regard to corporate management and emergency planning contentions. Especially with regard to emergency planning, we agree with another licensing board, Cincinnati Gar and Electric Co. (William H. Zimmer Nuclear Station), LBP-80-14,1I NRC 570,574 (1980), that the l

critcria for emergency planning have undergone vast changes that have l

considerably expanded the scope of reliefin operating license proceedings l

since the TMI-accident and especially during 1980. Without repeating in detail the changes summarized in Zimm-r, we do note the example cited 423 1

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the.e (Id at 573) of the extension of emergency planning from the low pop:!ation zone (LPZ) to the Emergency Planning Zones (EPZs). His concept was formally adopted in the final rules published on August 19, 1980 (45 Fed. Reg. 55402) which established an EPZ for airborne exposure G

with a radius of about 10 miles from the facility and an EPZ for contaminated food and water with a radius of about 50 miles. The affidasits submitted with the petition to intervene identify members of FUA who live within those zones and, consequently, who formally became principals in the Commission's concern over emergency planning. We note further that it was during this period in mid-1980 in which the Commission's policy on EPZs was evolving that the members of FUA began their involvement in NRC emergency planning meetings and organizational activities, culminat-ing in FUA's incorporation in September of 1980. Tr. 586.

Had FUA filed this petition in the middle or latter part of 1980, we would have no hesitation in determining that there was good cause for the delay in filing the petition to the extent of the emergency planning issues.

Similarly, although to a lesser extent, because of the Commission's focus on management capability in the post-TMI era we would have found good cause for the delay in filing the management capability contentions.

As it is, petitioner delayed some months longer in apparent reliance upon Mr. Bursey's intervention before filing its petition in March of 1981.

As we have stated before, such reliance is legally insufficient to constitute good cause for the aaditional delay, although we can understand a reluctance to file a petition three years after the issuance of a notice of opportunity for hearing in the face of a strong possibility of rejection when there is an intervenor already participating in the proceeding. Had that added delay in filing disadvantaged any parties other than petitioner itself (by circumscribing its prehearing activities). or delayed the proceedings, we might find a lack of good cause. However, since it does not delay the proceeding and there was good cause for the bulk of the delay in fding these

(

contentions, we find that factor to be of almost no weight (or of slight weight against petitioner) in deciding upon the intervention with regard to the corporate management and emergency planning issues. With regard to the other contentions, we find an absence of good cause for the delay.

He Delay Factor The Board agrees with applicant (Applicant's Answer to Untimely Petition, p.10) that in cases of very late intervention the fifth factor specified in 10 CFR 52.714(a)(1), the extent to which participation by the late petitioner will broaden the issues or delay the proceedings, becomes very important. We further agree with both applicant and Staff as to the contentions otner than those concerning corporate management or i

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emergency planning ths.t the admission of petitioner would broaden the proceeding and cause unwarranted delay at this late stage. We would weigh this factor as heavily against admitting petitioner on these contentions as we would weigh the lack of good cause. With regard to emergency planning and corporate management, however, we see no delay resulting from petitioner's admission if, as the Board orders, petitioner's admission on these contentions be subject to the same conditions prevailing with regard to the other parties. When a petitioner files a late petition he must genertily take the proceedings as they are, and we see no reason to make any special accommodations for this petitioner that would result in delaying the proceeding. At the time the petition was filed, the hearing had been scheduled to begin on June 22, 1981, and we intend to maintain that schedule. Furthermore, the parties' aflirmative cases should have been disclosed and discovery concluded except on those issues on which the Stafrs and applicant's positions were still evolving. We hold petitioner to the specifics disclosed in its supplemental petition or at the prehearing conference on the corporate management and emergency planning issues, except to the extent that the latter area is still evohing or has not been prb'icly disclosed.

In view of the fact that the corporate management and emergency planning issues had already been admitted to the proceeding (by Board question or intervenor contention), we see no broadening ofissues and only a desirable particularization ofits position in FUA's detailed presentation of these contentions.

The Board expects that no delay will ensue from admitting petitioner on these conte nions if the appropriate test of delay is employed, i.e.,

measuring the delay that could be attributed directly to the tardiness of the petition. Iong Island lighting Co. (Jamesport Nuclear Power Station, Units I and 2), ALAB-292,2 NRC 631,650, fn. 25 (1975). Had petitioner filed a timely petition, it would have served itself by having before it a full discovery period. While the other parties could have also discovered petitioner's case, discovery would not have benefitted them on the issues we are admitting. Petitioner has made full disclosure in its supplemental petition of the bases for its contentions, including the names or oflices ofits pc'ential witnesses to the extent we are admitting its contentions, for the Boad will not allow additional witnesses. Consequently, FUA's late entrance into the case has not occasioned a delay in discovery that could prolong the proceeding. With regard to applicant's and StafTs evohing positions on emergency planning, discovery is presently where it would have %en had petitioner been admitted when the notice of opportunity was issued. We direct, in this regard, for the benefit of all of the parties, that the parties cooperate in informal discovery with regard to the evolving plans.

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While the Board intends to adhere firmly to the hearing starting date of June 22,1981, notwithstanding any failure in cooperation with regard to informal discovery, the Board intends to exercise its prerogatives in controlling the proceeding to penalize an ofTending party either by 9

restricting its case or by providing a further hearing at a later time for the benefit of an aggrieved party.

Nor, do we see any way in which petitioner's sooner entrance into this I,

proceeding could have resolved the issues being admitted. Emergency planning is not yet ripe for resolution, and neither the corporate management nor emergency planning issues are susceptible to summary disposition regardless of their state of preparedness.

Even if we consider delay in terms of the time of concluding the proceeding measured with or without petitioner's participation, we cannot foresee unwarranted delay. To be sure, the hering may last longer because of petitioner's participation but, in view of petitione/s apparent intensive preparation ofits pleadings and its demonstrated kn,wledge of the areas on which it is being admitted, together with the Board's resolve to prohibit repetitious examination, the Board anticipates very little unproductive delay.

Ability to Contribute to a Sound Record It is this factor that the Board weighs most heavily in favor of admitting petitioner to this proceeding on the corporate management and emergency planning contentions and which it weighs most heavily against petitioner with regard to the other contentions. As is apparent from FUA's pleadings and :' rom the general discussion at the prehearing conference, petitioner's members have become well versed in the former areas, independently of any intention of intervening in this proceeding, through their participation in rate-making proceedings and in the ongoing emergency planning. We can only contrast petitioner's familiarity with the substance of these issues with its lack of prior involvement or expertise in the other issues it raised.

On those other issues,it named few or no witnesses committed to testifying on its behalf but sought mainly the opportunity to search for such witnesses. In view of the late date, we see no reason to afford that opportunity.

Moreover, while perhaps not grounds for admitting this petitioner, we cannot help but consider what the state of the record might be on the issues we admit without its participatic n. He existing intervenor, Mr. Bursey, throughout this proceeding has exhibited an inability to efTcetively manage i

l his case, which includes the area of emergency planning. Moreover, considering the difficulties Mr. Bursey has encountered in preparing his own case, we expect little help from him in assisting the Board with regard to the issue raised by the Board regarding corporate management.

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(However, in this regard, we would expect the Staff to render valuable assistance since it, too, has raised serious questions with regard to applicant's engineering organization and hands-on operating experience.

See reference to SER in ACRS letter of March 18,1981, pp. 2-3.) However, 9

with petitioner admitted on the corporate management issues it raised itself, we anticipate a much fuller development of the record, in a more adverserial manner.

Other Means to Pmtect Petitioner's Interest and Extent to Which Petitioner's Interests will be Represented by Existing Parties As is ordinarily the case, this proceeding represents the best forum to consider the admissible contentions and petitioner is best qualified to represent its own interests. For that reason, these factors almost always weigh in a petitioner's favor but are given relatively lesser weight than the other factors. The Board has, however, taken these factors into account with regard to tFr specifics of this petition. We note that, with regard to emergency planning, petitioner has had dealings with NRC and other public officials mthout benefit of this formal proceeding but, on the other hand, has encountered considerable difficulty in gaining full access to the counties' evolving emergency plans. Tr. 597-603.

Petitioner's admission into this proceeding on the emergency planning contentions should not only facilitate its being heard on those issues in this forum, but should also serve to open some of the emergency planning to public input and scrutiny as should have been the case from the first.

With regard to petitioner's being adequately represented by the existing parties, we have already expressed our opinion on the manner in which the existing intervention has been handled. We see no reason why petitioner should have any confidence that Mr. Bursey will represent its interests any better than he has, so far, represented his own.

In summary, we have applied the five-factor test to FUA's proposed intervention on the corporate management and emergency planning issues and have concluded that, while the good cause factor weighs slightly against admission, petitioner's abihty to contribute to a sound record and the lack of delay or broadening of the proceedings weigh heavily in its favor, and the other two factors weigh slightly in its favor. We, therefore, conclude that the five factors weigh in favor of admitting FUA on the corporate management and emergency planning issues.

On applying the five-factor test to the remainder of tin issues raised by FUA. we conclude that the good cause, delay, and ability-to-contribute to-a-sound-record factors weigh heavily against admission, and that only the lesser factors of availability of other means to protect petitioner's interest and the extent to which petitioner's interest will be represented by existing t

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parties weigh slightly in its fa or. We must, therefore, reject petitioner's intervention on those other issues. Had we not been able to separate its petition into two discrete parts for applying the five-factor test, we would have denied the petition as a whole, because the factors oflack of good 9

cause for failure to file on time and the extent to which admitting petitioner on those issues would broaden the issues and delay the proceeding wouid outweigh any benefits from admitting petitioner.

ORDER For all of the foregoing reasons and based upon a consideration of the entire record in this matter, it is, this 30th day of April 1981 ORDERED hat Fairfield United Action is admitted as an intervendt in this proceeding on contentions 1,2, 7-13, and 27, subject to all of the rights, obligations, and restrictions of the other parties as discussed above and determined in other Board orders; and, That the remainder of the contentions raised in FUA's supplemental petition are not admitted FOR Tile ATOMIC SAFETY AND LICENSING BOARD Herbert Grossman, Chairman ADMINISTRATIVE JUDGE e

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Cite as 13 NRC 429 (1981)

DPRM-81-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS Joseph M. Hendrie, Chairman Victor Gilinsky l

Pete A. Bradford John F. Ahearne in the Matter of Docket No. PRM 2-10 CITIZENS ADVISORY BOARD OF THE METROPOLITAN AREA PLANNING COUNCIL FOR OMAHA, NEBRASKA, AND COUNCIL BLUFFS, IOWA April 20,1981 The Commission denies a petition for rulemanng submitted by the Citizens Advisory Board. The petitioner requested a variety of amendments to the Commission's Rules of Practice,10 CFR Part 2,induding provisions for informal hearings where formal hearings would not be held and requests for hearings to be filed by persons not attempting to intervene in the proceeding. Petitioner also sought expanded service of all docket-related papers and the holding of all hearings and meetings at reactor sites at times maximizing public attendance.

NRC: INFORMAL HEARINGS AND MEETINGS NRC currently holds informal public hearings or meetings near the site, in the area of NRC regional offices, or in the Washington, D.C. area on matters of special public interest relating to both specific nuclear plants and to more generic issues.

NRC: INFORMAL IIEAR8NGS ASV MEETLNGS NRC informal hearings and meetings are designed and conducted to achieve several objectives-to inform the public of proposed NRC or licensee actions, to enable the public to observe firsthand the NRC regulatory process at work, to air differing views on the matters in issue, 429 k

and to provide an opportunity for the public to question NRC and licensee I

personnel directly.

NRC: INFORMAL IIEARINGS AND MEL'ITNGS Members of the public are generally notified in advance of the informal hearings or meetings through notices published in local newspapers, notices published in the Federal Register, radio and television announcements, or through a combination of these methods.

NRC: INFORMAL IIEARINGS AND MEETINGS Technical meetings between the NRC staff and the licensee or applicant l

are generally open to the public pursuant to the NRC "Open Meetings" policy, which is fully described in a policy r.tatement issued on June 28, 1978 (43 FR 28058) and in another publishr.d on October 20,1978 (43 FR 49082).

NRC: INFORMAL IIEARINGS AND MEETLNGS The Commission is keenly aware of the public interest in informal hearings and meetings and will continue to investigate and encourage approaches which will meaningfully enhance, in a sound and practical manner, the positive effects of public participation in the nuclear licensing process.

NRC: INFORMAL IIEARINGS AND MEE'ITNGS Public participation in the NRC regulatory process is not, however, a goal which can be pursued without regard for budgetary and personnel limitations, and the Commission must take into account reductions in its financial resources and limitations on its personnel strength in pursuing the fulfillment of all of the NRC's responsibilities and objectives.

NRC: INFORMAL IIEARINGS AND MEETLNGS Mandatory diversion on additional NRC resources to informal public meetings or hearings in every type of license proceeding throughout the entire country, as petitioner seeks here, would adversely afTect the ability of the NRC to fulfill its fundamental environmental, health, and safety statutory responsibilities.

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NRC: INFORMAL IIEARINGS AND MEETINGS Making informal hearings mandatory in all operating license proceed.

ings, as the petitioners have requested here, is not appropriate at this time O

and the Commission declines to formalize the use ofinformal hearings as a requirement in all such cases.

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OPERATING LICENSE IIEARINGS: IIEALTil AND SAFE 1Y ISSUES Informal hearings will not be made mandatory for all operating license proceedings.

RULES OF PRACTICE: STANDING TO INTERVENE

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Interested mer.bersof the public may request intervention in adjudicatory hearings pursuant to Section 189 of the Atomic Energy Act providing they can demonstrate the requisite interest at stake, the standing require-ment,10 CFR 2.714; see Portland General Electric Company (Pebble Springs Nuclear Plant, Units I and 2), CLI-76-27,4 NRC 610 (1976).

RULES OF PRACTICE: DISCRETIONARY INTERVENTION ne Commission has discretion to order hearings upon request even where standing has not been shown. Public Service Conpany ofIndiana (Marble Hill Nuclear Generating Station, Units I and 2), CLI-80-10,11 NRC 438,4?9 (1980).

RULES OF PRALTICE: RIGIIT TO PARTICIPATE Limited participation in NRC proceedings by nonparties is also permitted under the current rules,10 CFR 2.715(a).

RUIJS OF PRACTICE: STANDING TO LNTERVLST He purpose of the requirement of standing is to establish that participants in the hearing process will contribute in a meaningful way to the development of a complete record on health, safety, and environmental issues, rnd this ensures that the public funds used to provide the adjudicatory resources for such proceedings will not be expended on matters which are of no relevance to the issues then being adjudicated.

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t RULES OF PRACTICE: RIGIIT TO PAR'ITCIPATE He requirement of standing will not be essentially abrogated to allow, as e

petitioner suggests, any person to request an adjudicatory hearing, irrespective of whether that person can show any personal stake in the outcome of the hearing and also irresocctive of whether that person intends to participate in the hearing itself.

RULES OF PRACTICE: NOTICE OF llEARLNGS

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10 CFR 2.715(b) requires that the Secretary of the Commission serve notices of hearing upon all persons requesting such notices, and a docket list relating to each nuclear licensing matter is compiled by the Office of the Secretary, and persons on this list receive direct notification of all hearings, pre-hearing conferences, oral arguments, and other formal proceedings associated with the docket.

RULES OF PRACTICE: NOTICE OF HEARINGS All formal proceedings are noticed in the Federal Register and in local publications selected as being those reasonably calculated to proside the widest notice to the largest number of potentially affected people.

RULES OF PRACTICE: SERVICE OF PAPERS NRC local Public Document Rooms (LPDRs) are situated near the site of each licensed or proposed nuclear power plant and each LPDR watains the entire file of docket-related papers for that site, along with other NRC documents of general public interest. He main NRC Public Document Room in Washington has all dockets and corresponding docket-related papers on file as well as most other publicly-available NRC documents.

RULES OF PRACTICE: SERVICE OF PAPERS TM dDRs, PDR, and requests under the Freedom of Information Act adequately provide interested members of the public access to NRC documents, particularly those related to a specific proceeding.

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RULES OF PRACTICE: SERVICE OF PAPERS AND FINANCIAL ASSISTANCE TO PARTICIPANTS Nationwide sersice upon request, as petitioner suggests, would be an unjustifiable expense, would not measurably add to public knowledge regarding NRC prcceedings, and would seem contrary to the recent ruling of the Comptroller General that Section 502 of the 1981 fiscal year Energy and Water Development Appropriation = Act (Pub L 98-367) prohibits the NRC from providing certain documents and transcripts free of charge to non-applicant parties in adjudicatory proceedings. See CG Opinion No. B-200585 (Dec. 3,1980).

NRC: LOCATION OF INFORMAL IIEARINGS AND MEETINGS Public meetings of an informal nature are ordinarily held near the site, particularly when they involve issues relating to the nuclear plant, and meetings with licensees or applicants may be held either near the plant or reactor site or in Washingwn, depending on the nature of the meeting, the convenience to the parties involved, and urgency of the meeting.

NRC: LOCATION OF INFORMAL HEARINGS AND MEETINGS Requiring that all formal and informal hearings and meetings normally be held proximate to the actual or proposed nuclear plant site would not, in most cases, increase public convenience since reactor sites are not located in high population density areas, and most interested members of the public would reside in a nearby population center, where hearings are held under the current system; furthermore, reactor sites are not properly equipped to accommodate large public meetings.

NRC: SCIIEDULING OF INFCRMAL HEARINGS AND MEETINGS The eflicient conduct of hearings and meetings requires that they generally take place during normal business hours on weekdays, although special arrangements are often made to accommodate members of the public wishing to appear at the hearing but unable to do :,o during business hours.

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l DENIAL OF PETITION FOR RULEMAXING This petition for rulemaking was filed by the Citizens Advisory Board of the Metropolitan Area Planning Agency for Omaha, Nebraska, and Council 9

Bluffs, Iowa on March 13,1980. Petitioner sought a number of amendments to the Commission's Rules of Practice,10 CFR Part 2. The petitioner's proposals were set out in the Federal Register notice requesting comment 7

f on the petition. 45 Fed. Reg. 26071. In brief, the petitioner sought the following:

l An amendment to 10 CFR 2.105 which would require that an 1.

" informal hearing" be held by the NRC staff in all licensing cases where a I

" formal hearing" is either unavailable, not requested, or requested and l

t denied.

2. An amendment to 10 CFR 2.714 giving persons not attempting to l

intervene in a licensing proceeding the right to request a formal hearing.

l 3.

An amendment to 10 CFR 2.715 providing that any person so requesting would be furnished by the Secretary of the NRC all docket-related papers and be sent notice of all hearings, conferences, and informal proceedings.

4. An amendment to 10 CFR 2.751 requiring that all hearings and NRC-licensee / applicant meetings be held at a site and at times maximizing attendance by a majority of persons potentially afTected.

Thirteen public commects were received on the petition, all of which opposed the petition. Commenters stressed that petitioner's suggestions would add cost and delay to the licensing process, were unnecessary in view of current NRC rules providing for public participation in licensing and were subject to abuse by persons seeking only to delay licensing rather than contribute to the process by good faith participation.

We have considered the Citizens Advisory Board petition and the comments submitted in response and have concluded that the petition should be denied. The reasons for our denial of the Citizens Advisory Board petition may best be understood in light of the NRC's current practice with regard to informal public meetings or hearings, particularly since the substance of most of the concerns expressed by the petitioner are already met under our present practice. We will discuss these matters in response to the four basic areas of concern raised in ae Citizens Advisory

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Board petition.

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(1) NRC Informal IIcarings and Meetings.

The NRC currently holds informal public hearings or meetings near the site, in the area of the NRC regional offices, or in the Washington, D.C area on matters of special public interest relating both to specific nuclear e

plants and to more generic issues. Recent informal public hearings or meeting; have covered a wide range of subjects, including (a) emironmen-tal, health, and safety matters related to applications for construction permits or operating licenses for nuclear power plants, (b) upgrading emergency preparedness plans at operating nuclear power plant sites, (c) the NRC's proposed policy and procedures for enforcement actions, and (d) NRC enforcement cctions against specific licensees. Such meetings and hearings are designed and conducted to achieve several objectives:

to inform the public of proposed NRC or licensee actions, to enable the public to observe firsthand the NRC regulatory process at work, to air differing views on the matters in issue, and to provide an opportunity for the public to question NRC and licensee personnel directly. To maximize participa-tion, members of the public are generally notified in advance of the informal hearings or meetings through notices published in local newspa-pers, notices published in the Federal Register, radio and television announcements, or through a combination of these methods.

The public meetings on emironmental, health, and safety matters related to acplications for costruction permits or operating licenses for nuclear power plants are noteworthy. Rese meetings have generally been in two (1) special meetings on emironmental, health, or safety matters areas:

mong the NRC staff, licensee / applicant personnel, and the public, and (2) other technical meetings between the NRC staff and the licensee / applicant.

Two examples illustrate these types of informal public meetings. In the early stages of NRC consideration of the construction permit application for Palo Verde Units 4 and 5, open public meetings were held in Phoenc, Arizona, on emironmental matters (October 12 and 13,1978) and on safety matters (October 17 and 19,1978). At the Palo Verde meetings, information was presented to the public, and question-and-answer sessions followed.

In connection with a proposed increase of the maximum power rating in the operating license for the Fort Ca'houn Nuclear Station, an informal meeting was held on January 16, 1980 in Omaha, Nebraska. NRC staff members participated along with the licensee Omaha Public Power District (OPPD), parties (both indisideals and groups) that had previously requested a formal NRC hearing on the matter, and other raembers of the public. During the meeting, OPPD presented its plans for the power increase, the NRC staff discussed its review of OPPD's proposed power increase, and other participants made their views known and questioned 435 7

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OPPD and NRC participants. Shortly after the meeting, the request for a i

formal NRC hearing was withdrawn, ano the NRC received favorable comments on the exchange of information and views which had taken place.

Technical meetings between the NRC staff and the licensee or applican: sre generally open to the public pursuant to the NRC "Open hicetings" poley, 3

which is fully described in a policy statement issued on June 28,1978 (43 FR 28058) and in another published on Ocotober 20,1978 (43 fR 49082).

Other special meetings are held where circumstances and public interest commend such action. For exampic approxiinately 70 meetings were held in 1980 with the public, local ofTicials, and other interested organizations in the area near the Three hiile I. land (Th11) plant on various subjects related to the status of Thil.

As to the three other general subjects mentioned above, approximately 130 informal hearings or meetings took place during 1980 in areas immediately surrounding the operating or proposed nuclear plant itself or in the general areas where such pla:w: are or will be situated. Over 30 of the 130 local meetings focused on the NRC emergency preparedness program. Rese 30 meetings and workshop involved providing the public with information on proposed NRC emergency preparedness rep *ations, presenting an evalu.

ation of the status of the emergency preparedness plans for the nuclear power plant in that area, and giving the public an opportunity to question NRC and licensee personnel directly on these topics. In addition, proposed policy and procedures for NRC enforcement actions were discussed at several regional public meetings which took place in 1980. De enforcement policy and procedures and the schedule of racetings were announced in NRC press releases and published in the federal Register. 45 FR 66754 and 45 FR 69077.

Open, informai meetings have also included matters subject to NRC l

enforcement actions, usually where licensees had mceived an NRC notice of violation of the terms or conditions in their construction permits or l

operating licenses. In 1980, such open enforcement meetings were held, I

among others, in Athens, Alabama, on Browns Ferry Unit 3 (containment penetratian closures and TVA operational procedures); in hladison, Indiana, on the htarble flill Nuclear Power Station (upgrade of quality assurance program and construction management actaities); in Sacramento, California, on the Rancho Seco Nuclear Generating Station (valve misalignment and administrative procedures); in Bay City, Texas, on South Texas Project Units 1 & 2 (construction activities and quality assurance program); in New York City on Indian Point Unit 2 (river water leakage 436 i

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into containment); and in South ifaven. Michigan, on the Palisades Nuclear Power Stat;on (mispositioned safety system valves and routine surveillance tesi procedures). At these open meetings, NRC personnel e

questioned the licensee cn various aspects of the violation and proposed or completed remedial actions, with the public observing the entire process.

Following this segment of the meeting, the public had an opportunity to question the NRC personnel present and, at times, those of the licensee.

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Attendance at such open enforcement meetings ranged from one person to T

large crowds of several hundred persons.

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As a result of activities such as the examples noted above, the NRC has found that open, informal meetings and hearings have positive, useful efTects in permitting the public tojudge for its:lf the effectivenen of nuclear regulation by the NRC. De Nhc staff continues to explore ways to improve its anticipation of matters which have considerable publi,: interest, so that informal hearings.nd meetings may be scheduled. Open and informal meetings also provide a valuable forum for members of the public to receive information on NRC practices and policies directly from NRC personnel, and to make known their own views on such matters. Positive efTects flow from a face-to-face exchange ofideas and from the ability of tlie public to have questie-and-aaswer sessions. Usually, the questions range from ger cral subject <. and NRC regulations and policies to the licensee's actuai.;ompliance mth such NRC mandates.

De Commission is keenly aware of the public interest in this area and will continue to investigate and encourage approaches which will meaningfully enhance, in a sound and practical manner, the positi.e effects of public participation in the nuclear licensing process. To that end, increased efTorts have been and are being made to afTord interested members of the public an opportunity to participate in these informal meetings and hearings at convenient locations, usually in the vicinity of the nuc! car power plant location. In addition, providing effective advance notice in widely-dissemi-nated local and national media is obviously necessary and will continue to be part of NRC practice. Finally, the NRC will attempt to schedule such hearings and meetings with due regard for the most appropriate and con enient time of the day for all concerned. In some of the instances noted above, meetings and hearings have continued through the evening well into the early morning hours.

Public particir atio in the NRC regulatory process is not, however, a goal which can be purmed without regard for budgetary and personnel limitations. The Cunmission must take into account redudons in its financial resources *nd limitations on its personnel strength in pursumg the 437 l

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fulfillment of all of the NRCs responsibilities and objectives. In addition, the recent decision of the U.S. Court of Appeals for the District of Columbia Circuit in Shollr v. NRC, No. 80-1691 (Nov.19,1980), creates further uncertainties for NRC budgetary and personnel resources, pending possible Supreme Court review of that decision. The impact of Sho!!y on the NRC's responsibility to hold formal adjudicatory hearings,if not reversed by the Supreme Court or legislatively, is potentially substantial, and is

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presently undergoing close scrutiny. Any increase in the number of formal hearings that are ultimately required to be held, above estimates made prior to Sholly, will obviously have fiscal and personnel impacts on the NRCs i

ability to hold informal hearings and meetings that are discretionary in nature. Accordingly, making informal hearings mandatory in all operating license proceedings, as the petitioners have requested here, is not appropri-ate at this time and we decline to formalize the use ofinformal heaiings as a requirement in all such cases.

Information concerning proposed NRC licensing actions is and will continue to be available in the federal Register ar.d in NRC Public Document Rooms. Current NRC regulations already provide an avenue for members of the public to request that certain licensing or enforcement actions be taken. See 10 CFR 2.206. Interested members of the public may also request and intervene in adjudicatory hearings pursuant to Section 189 of the Atomic Energy Act providing they can demonstrate the requisite interest at stake, the " standing" requirement.10 CFR 2.714; see Portland General Electric Company (Pebble Springs Nuclear Plant, Units I and 2),

CLI-76-27,4 NRC 610 (1976). Nonetheless, the Commission has discretion to order hearings upon request even where standing has not been shown.

Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units I and 2), CLI-80-10,11 NRC 438, 439 (1980). Limited participation in NRC proceedings by nonparties is also permitted under the current rules.10 CFR 2.715(a).

In our view these avenues, together with the above-described NRC practice of holding informal hearings and meetings where circumstances warrant, are sufficient to ensure effective public participation in the NRC regulatory process. Mandatory diversion of additional NRC resources to informal public meetings or hearings in every type oflicense proceeding throughout the entire country, as petitioner seeks here, would adversely afTect the ability of the NRC to fulfill its fundamental emironmental, health, and safety statutory responsibilities. Substantial delays in the licensing of nuclear power plants could also result, since even minor license amendment actions would have to await conclusion of the informal hearings. The 438 u

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Commission needs to maintain.ome measure of controlin deciding when circumstances warrant the holding ofinformal public hearings or meetings and cannot allocate,in advance, the substantial resources necessary to meet the full breadth of the petitioner's request absent a stronger showing of deficiencies in our current practice and of substantially greater benefits, to be gained. De TMI experience, with over 70 informal meetings in 1980 alone, demonstrates that the NRC can and will exercise its discretion to involve the public in a substantial manner in deserving situations.

(2) De Right of Persons Not Atten.pting to Intervene to Request Formal NRC Ilearings.

Under current NRC rules, person seeking to intervene in NRC proceedings must meet a traditional threshhold requirement to show how their interests will be afTected by the outcome of the proceeding.10 CFR 2.714(a). (d). See also, Portland General Electric Conpany, supra; Public Service Company ofIndiana, supra ne purpose of this requirement of

" standing" is to estabbsh that participants in the hearing process will contribute in a meaningful way to the development of a complete record on health, safety and environmental issues. This ensures that the public funds used to provide the adjudicatory resources for such proceedings will not be expended on matters which are of no relevance to the issues then being adjudicated.

Petitioner suggests, however, that any person should be able to request an adjudicatory hearing, inespective of whether that person can show any personal stake in the ot.tcome of the hearing and also irrespective of whether that person intends to participate in the hearing itself. We have difTiculty in finding significant positive aspects in such a proposal, particularly in light of the above-mentioned practical benefits which result from employing the well. accepted standing requirement. He petitioner's suggestion v.ould essentially abrogate the standing requirement entirely while creating certain anomalous and costly situations. For example, although at times intervenors pose views which difTer from those of a licensee / applicant or the NRC staff, it is not difficult to conceive that adoption of petitioner's proposal would lead to empaneling a licensing board and holding a hearing without any participation by a party taking a differing position on the issues. Indeed, petitioner does not state what the issues might be at such a hearing. sace the proposed rule change does not require the person requesting the hearing even to identify such issues with particularity. Adjudicatory hearings heid under these circumstances would not contribute to the enhancement of the NRC's ability to protect the 439

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public health and safety and, in fact, would seem to be an expenditure of NRC resources without any benefit being gained.

(3) Furnishing of Docket-Related Papers and Notices of All llearings Conferences and Inic,rmal Proceedings.

Petitioner would amend 10 CFR 2.715 to provide for senice of all docket-related papers ("all pleadings and papers of record") to 'any person so requesting, whether or not a particpant in the proceeding. This would be an expansion of current practice that seems unnecessary in light of the steps the NRC presently takes to ensure that members of the public have reasonable access to all docket-related papers, notices, and other material.

NRC Imal Public Document Rooms (LPDRs) are sitaated near the site of each licensed or proposed nuclear power plant in the United States. Each LPDR contalns the entire file of docket-related papers for that site, along with other NRC documents of general public interest. The main NRC Public Document Room in Washington has all dockets and corresponding o

docks t-related papers on file as well as most other publicly-available NRC documents.The LPDRs can usually obtain additional materials for persons requesting them on short notice. Finally, the Freedor ofInformation Act is available to persons desiring to obtain documents which would not ordinarily be placed in an LPDR or in the main NRC PDR in Washington.

We are confident that these methods adequately provide interested members of the public access to NRC documents, particularly those related o

to a specific proceeding. Nationwide senice upon request would in our view be an unjustdiable expense and would not measurably add to public knowledge regarding NRC proceedings. In addition, the Comptroller General has recently ruled that Section 502 of the 198! fiscal year Energy and Water Development Appropriations Act (P.L 96-367) prohibits the NRC from providing certain documents and transcripts free of cha:ge to nonapplicant parties in sdjudicatory proceedings. See CG Opirdon No. B-200585 (Dec. 3,1980). Certain aspects of the petitioners proposal would, therefore, seem to be contrary to the Comptroller General's position.

i In its present form,10 CFR 2.715(b) requires that the Secretary of the l

Commission serve notices of hearing upon all persons requesting such notices. In practice, a docket list relating to each nuclear licensing matter is compiled by the Office of the Secretary, and persons on this list receive direct notification of all hearings, pre-hearing conferences, oral arguments, and other formal proceedings associated with that docket. Hence, a portion of petitioner's request in this area is already current practice. Moreover, all formal proceedings are noticed in the Federal Register and in local i

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publications selected as being those reasonably calculated to proside the widest notice to the largest number of potentially afTected people. Every effort, including advertisements and press releases, is made to notify the public of informal public meetinga to be held near the site. We conclude that the thrust of petitioner's proposal to amend 10 CFR 2.715(b) as to the furnishing of notices of hearings is fully satisfied by current NRC rules and procedures.

(4) location and Scheduling of IIcarings and NRC-Ucemec/ Applicant Meetings.

Finally, petitioner requests that all hearings and NRC-licensee / applicant meetings be held at a site and at times which will maximize attendance by a majority of persons potentially afTected. Most adjudicatory heanngs are already held near the relevant nuclear reictor site, usually in the ricarest sizeable city or town. Appellate oral arguments in adjudicatory proceedings are, however, generally heard in the Washington, D.C. area. Public meetings of a more informal nature are also ordinanly held near the site, particularly when they involve issues relating to the nuclear plant. Meetings with licensees or applicants may be held either near t e plant or reactor site h

or in Washington, depending on the nature of the tweting, the convenience to the parties involved, and urgency of the meeting. Except for informal contacts between the NRC staff and the licensee or applicant (telephone coversations, discussions during site visits. etc.), NRC stafT-licensee /

applicant meetings are generally open to tiu (ublic and are announced in advance. As noted above, this "Open Meetings" policy is fully described in a policy statement issued on June 28,1978. 43 FR 28058. It provides that "All meetings conducted by the NRC technical stafT as part ofits resiew of a particular domestic license or permit application (including an applica-tion for an amendment to a license or permit) will be open to attendance by all parties or petitioners for leave to intervene in the case." The scheduling and location of such meetings is arranged, where possible, with the intent of allowing all interested parties to attend. This has, in some instances, resulted in meetings being held outside of normal business hours, as petitioner appears to suggest.

Requiring that all formal and informal hearings and meetings normally be held proximate to the actual or proposed nuclear plant site would not, in most cases, increase public convenience. Such reactor sites are not located, for obvious reasons, in high population density areas. Most interested members of the public would reside in a nearby population center, and this is where hearings are held under the current system. Furthermore, reactor sites are simply not properly equipped to accommodate large public i

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e meetings. We find no demonstrable merit in the petitioner's suggested change to our rules, and we will continue the current practice of holding the majority of adjudicatory hearings and public meetings in a city or town near the operating or proposed power plant si e.

2 As to the petitioner's second pc:nt, most adjudicatory hearings are held during normal business hours. Ilowever, evening or even weekend sessions are occasionally held to permit inter enors to participate if they are unable to do so during business hourt Such sessions may also be held to hear statements ofTered by non-parties participating pursuant to 10 CFR 2.715(a). Special informal public meetings, such as those at Three Mile Island, are usually held during non-business hours.

We decline to accept the petitioner's approach for the timing of hearings and meetings, which implies that evenings and weekend' tould be preferred, as a matter of course, to regular business hours. Where the basic purpose of an informal meeting is to inform she public (as with meetings at

~hree Mile Island). evening hours have been used frequently, and we expect such practice to continue. Normal business hours, however, are more appropriate for the conduct of agency business in formal proceedings or in ofTicial meetings with the licensee or applicant. There are simply more hours and days available for the conduct of business if normal working hours are utilized. Licensing hearings can be a lengthy process, and would be even more time-consuming if petitioner's suggestion were adopted. We conclude that the eflicient conduct of hearings and meetings requires that they generaEy take place during normal business hours on weekdays. As we have noted above, special arrangements are often made to accommodate members of the public wishing to appear at the hearing but unable to do so during business hours.

For the foregoing reasons, the Commission denies the petition for rulemaking filed by the Citizens Advisory BoaM. A copy of the Commis-sion's letter of denial is available for public inspection and copying at the NRC Public Document Room,1717 H Street N.W., Washington, D.C.

I For the Nuclear Regulatory Commission I

i Samuel J. Chilk Secretary of the Commission Dated at Washington, D.C.,

this 20th day of April,1981.

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