ML20024E280
| ML20024E280 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 08/08/1983 |
| From: | Dewey L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8308100176 | |
| Download: ML20024E280 (14) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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ARIZONA PUBLIC SERVICE Docket No. STN 50-529 COMPANY, ET AL.
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STN 50-530
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(Palo Verde Nuclear Generating
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Station, Units 2 and 3)
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STAFF'S ANSWER TO WEST VALLEY AGRICULTURAL PROTECTION COUNCIL, INC.'S MOTION SEEKING STAY OF LICENSING BOARD'S DECISION TO PERMIT HEARING TO PROCEED WITHOUT A NEW FES Lee Scott Dewey Counsel for NRC Staff August 8, 1983 DESIGNATED ORIGINAIJ Certified Bf
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of ARIZONA PUBLIC SERVICE Docket No. STN 50-529 STN 50-530 COMPANY, ET AL.
(Palo Verde Nuclear Generating Station, Units 2 and 3)
STAFF'S ANSWER TO WEST VALLEY AGRICULTURAL PROTECTION COUNCIL, INC.'S MOTION SEEKING STAY OF LICENSING BOARD'S DECISION TO PERMIT HEARING TO PROCEED WITHOUT A NEW FES l
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l Lee Scott Dewey Counsel for NRC Staff l
August 8, 1983 f
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TABLE OF CONTENTS 9.39' 1
I. INTRODUCTION...........................................
1 I:I. DISCUSSION.............................................
2 A.
The Requirements For a Stay.......................
1.
Likelihood of Success on the Merits..........
3 7
2.
Irreparable Injury...........................
3 8
5 3.
Harm To Other Parties........................
9 4.
Public Interest..............................
9 III. CONCLUSION..............................................
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION t
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of AP.IZONA PUBLIC SERVICE Docket No. STN 50-529 STN 50-530 COMPANY, ET AL.
(Palo Verde Nuclear Generating Station, Units 2and3)
)
STAFF'S ANSWER TO WEST VALLEY AGRICULTURAL PROTECTION COUNCIL, INC.'S MOTION SEEKING STAY OF LICENSING BOARD'S DECISION TO PERMIT HEARING TO PROCEED WITHOUT A NEW FES I.
INTRODUCTION On July 22, 1983 West Valley Agricultural Protection Council (West Valley) filed a motion with the Appeal Board seeking a stay of the Licensing Board's July 11, 1983 Memorandum and Order denying West Valley's request that the Palo Verde OL hearings be stayed pending certification of For a Licensing Board ruling regarding the need for a supplemental FES.
the reasons set forth below, the request for a stay should be denied.
II. DISCUSSION The background of this matter is set out in the Licensing Board's opinion ruling on West Valley's request that the Licensing Board dis-continue any discovery or hearings in connection with the salt deposition
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contentions in this proceeding until the Staff has prepared a supplemental environmental statement (FES) regarding this problem.1/
In that Opinion the Licensing Board rejected this request on the basis that defects, in Arizona Public Service Co. (Palo Verde Station, Units 2 & 3), ASLBP OL, Slip Opinion at I-3 (July 11,1983) (hereafter " Order").
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80-44201 c
. i the Staff's FES, if any are found to exist, can be cured by the receipt of additional evidence at the hearing rather than by supplementation and recirculation of the FES.
(Opinionat3-5.) The Board also concluded that, for the reasons described below, it does not have the authority to order Staff to prepare a Supplemental FES and furthemore that there is no i
basis in the record for determining that the environmental reports prepared by the Staff are inadequate or that the conclusions therein are incorrect (0pinionat5-7).
As a result of this ruling, on July 22, 1983 West Valley filed a l
l 1etter with the Licensing Board requesting that the Licensing Board authorize an appeal of its decision pursuant to 10 C.F.R. 5 2.730(f) and l
l certify this appeal to the Appeal Board. On this same date, West Valley l
l filed the instant motion for a stay with this Appeal Board requesting that t
the Appeal Board... " stay any hearing in this proceeding pending certification of an appeal from the Licensing Board ruling and the
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completion by the NRC staff of a supplemental FES." Motion at 3.
1 A.
The Requirements For a Stay In determining whether to grant or deny West Valley's motion for a stay pursuant to 10 C.F.R. 5 2.788(e), the following factors should be considered:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would ham other parties; i
and (4).Where the public interest lies, l
l 10 C.F.R. 5 2.788(e)(1-4); see also Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), CLI-81-2,14 NRC 795 (1981); South Carolina l
-- - _ - - - Electric and Gas Co. (Virgil C. Summer, Unit 1, ALAB-643,13 NRC 898 (1981).
The party seeking the stay (West Valley) bears the burden of marshaling the evidence and demonstrating that it is entitled to such relief.
Consumers Power Co. (Midland Plant, tinits 1 & 2), ALAB-395, 5 NRC 772, 785(1977). For the reasons discussed below, West Valley has failed to meet this burden.
1.
Likelihood of Success on the Merits West Valley has failed to demonstrate that its ellegation that the Board erred in not requiring Staff to prepare a supplemental FES prior to holding hearings on the salt deposition issue has any likelihtod of success on the merits. The Licensing Board's ruling was based on its conclusion (1) an FES is usually not required tc be reissued since any de-that:
ficiencies in that document can be remedied at the hearing pursuant to 10 C.F.R. 5 51.52(b)(3),2_/ (2) at this time, there is insufficient basis in the record for determining that the environmental reports prepared by the Staff are inadequate or that the conclusions therein are incorrect,3/
and (3) at this early stage of the proceeding the Board does not have
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Public Service Co. of Oklahoma (Black Fox Station, Units 1 & 2),
ALAB-573, 10 NRC 775, 785-87 (1979), Allied General Nuclear Service (Barnwell Nuclear Separation Facility), ALAB-2967, 2 NRC 671, 680 (1975); Florida Power & Light Co. (Turkey Point Nuclear Generating t
Units 3&4),ALAB-660,14NRC987,1014(1981); Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, j
T76-197 (1975); NiagaraMohawkPowerCorp.(NineMilePointUnit2),
ALAB-264, 1 NRC 347, 371-372 (1975). Reissuance of an FES will only be necessary when there are acknowledged to be very substantial errors in that document. Allied-General Nuclear Services, su ra, 2 NRC at 680. See also Staff's May 26, 1983 Answer at 7 an taff's February 17, 1983 Answer at 3-4.
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See Staff's May 26, 1983 Answer at 5-9; Staff's February 17, 1983 Answer at 4-5.
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- I the authority to order Staff to prepare new or supplemental environmental statements.O Opinion at 5-7.
,e In challenging to attack these three Board findings before the i
Appeal Board, West Valley makes the following arguments, none of which j
1 have merit.
First, it relies upon the following quote from Consumers Power Company, supra, 6 AEC at 334 cited in Public Service Co. of New Hampshire, supra, 5 NRC at 526 for the proposition that the Palo Verde Licensing Board has the authority at the present time to order a new FES.
West Valley July 21, 1933 Memoranda (hereinafter " Memorandum") at 8.
In that case the Appeal Board stated that:
A licensing board... is expected to evaluate independently and resolve the appropriate contentions of the varicus parties, to assure itself that the regulatory staff's review i
i has been adequate, and to inquire further into areas where it may perceive probleras or find a need for elaboration. If it finds itself not satisfied with the adeqJacy or completeness of the staff review, or of the evidence presented in support of the license application, it may, for example, reject the application, or may require further development of the record to support such application.
(emphasis added)
West Valley's reliance on this language is misplaced since the Appeal Board I
in Consumers merely held that Licensing Boards may review the adequacy of Staff review and if not satisfied "may require further development of the record" at the hearing.
Id at 526. Nowhere in this quote is it stated, or can it logically be inferred, that the Licensing Board can require the publication of a new FES or that a FES can be required prior to the hearing.
In fact, existing precedent is to the contrary. New England Power Co.,
supra, 7 NRC at 279-80; Consumers Power Co., 13 NRC at 330-331.
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See Staff's February 17, 1983 Answer at 2; New England Power Co.
THEP, Units 1 & 2), LBP-289, 7 NRC 271, 279-80 (1978), Offshore Power Systems (Floating Nuclear Plants), ALAB-498, 8 NRC 194, 206-207 (1978).
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West Valley next argues that the Board has erred in concluding that there is currently insufficient basis for detemining that Staff's en-vironmental statements are adequate. Memorandum at 8-9.
In support thereof it relies upon a prior statement that the Licensing Board had made when it ruled upon West Valley's petition to intervene. There the Licensing Board had used the word " sparse" in referring to certain portions of Staff's environmental statements regarding the salt deposition contention.
Order at 9.
Contrary to West Valley's claim, the Licensing Board's incidental use of this word in referring to certain portions of the FES in no way contradicts its assessment, based upon the considerable evidence of record, that the salt depcsition issue does not involve significant new infomation and that there is no present basis for concluding that new infomation is available which would significantly alter the earlier conclusions in Staff'sFES.E West Valley's final argument is that the Board has erred in stating that defects in the EIS can be curred by the receipt of additional testimony at the hearing.
(Memorandum at 9). While West Valley concedes than an " adequate" FES can be cured in the manner stated by the Board, it claims that an inadequate" FES cannot.
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The Commission's regulations explicitly provide that a Licensing Board decision based on the evidentiary
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record before it shall be deemed to modify the Staff prepared FES, 10 C.F.R.
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See Staff's May 26, 1983 Answer at 5-9; Staff's February 17, 1983 Answer at 4-5.
Furthemore, as part of this argument West Valley additionally contends that Staff's environmental statements are also shown to be defective by certain affidavits of West Valley's consultants which it l
has attached to its motion. This argument must also fail. Although these consultants have made various claims regarding the adequacy of Staff's environmental statements, these are only allegations whose validity has not been substantiated and there is no reason why they ).
cannot be resolved at the hearing pursuant to 10 C.F.R. 9 51.52(b)(3
.. -- 5 51.52(b)(3) and, as noted by the Board, three courts of appeal have approved of this rule.
(0pinionat4).
If the distinction West Valley advocates relates to the cage where the additional evidence supplements or amplifies the discussion in a FES versus the case where the additional evidence (1) concerns a subject omitted in the FES or (2) departs markedly from the position espoused or the infonnation reflected in the FES, the Staff agrees that the Appeal Board has cautioned that the facts of the latter case need to be examined to. determine if recirculation may be required.
Florida Power & Light Company (Turkey Point Nuclear Generating Units Nos. 3 and4(,A98-660,14NRC987,1014(1981), Allied-General Nuclear Services, supra, 2 NRC at 680. However, such omissions or inconsistencies have not been established with respect to the Palo Verde envircnmental statements nor is thero any basis for ctecluding that, if defects exist, they cannot be cured at the hearing.0/
For these reasons West Valley has failed to establish that its petition for a stay is likely to succeed on the merits.U i
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See Staff's May 26, 1983 Answer at 5-9.
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The situation here closely resembles that in Allied-General Nuclear Services, supra, 2 NRC at 677-678, where there was also a qu'estion of whether hearings should be stayed because an FES was allegedly deficient. In determining that it was appropriate for the hearing to take place rather than be stayed, the Appeal Board acknowledged that that those deficiencies [y well be able to establish at the hearingin the FE
"... the intervenors ma that the hearings could nevertheless take place as scheduled if the Licensing Board deemed it appropriate.
Id. at 679-680. This same principle should also apply in this case 71nce there appear to be more reasons for granting a stay in Allied General Nuclear Services than here.
In that case one of the asserted deficiencies in that FES was a failure to include the results of the Commission's study of plutonium recylcing (GESMO) which was ongoing at the time. Id.
at 681-683. The situation in Palo Verde is much less tenuous since when this hearing is held all studies will be completed and all relevant information will be before the Licensing Board.
2.
Irreparable Injury Although the granting of a stay request turns on the balancing of all four factors of 10 C.F.R. 9 2.788(e) (Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-338, 4 NRC 10, 14 (1976)),
the Comission has concluded that the most important factor is whether the party requesting the stay has shown that it will be irreparably injured I
unless a stay is granted. WestinghouseElectricCorporation(Exportsto the Phil11 pines), CLI-80-14, 11 NRC 631, 662 (1980); Public Service of Oklahoma (BlackFoxStation, Units 1&2),ALAB-508,8NRC559,560-561 (1978). Failure to satisfy this factor requires "ovembelming" showing on the other factors.
11 at 560-561.
West Valley will not suffer any damage if its requested stay is not granted. As a party to this proceeding, West Valley may engage in all l
l prehearing activities includirg discovery on any additional information the other parties intend to offer at the hearing and to cross-examine any witness proffered at the hearing. After the record is developed on this matter, West Valley can file any appropriate motions.
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West Valley's arguments in regard to this factor are basically that if this case goes to hearing without a supplemental environmental impact statement first being prepared, the requirements of NEPA will be subverted because:
(1) environmental impact statements should be supplemented independently by the Staff rather than by a Licensing Board; (2) there will not be "public input," and (3) the issues will not be fully developed.
(Memorandumat8-9).
None of these arguments are well founded. Argument (1),concerning the need for an independent Staff preparation of a supplement rather than supplementation of an FES at a hearing, is in direct conflict with 9 51.52(b)(3) of the Comission's Rules of Practice which allows an FES l
to be modified at a hearing. Such challenges to Comission regulations are not permitted under 10 C.F.R. 5 2.758(a).
Argument (2) regarding the need for "public input" fails to recognize that the "public input" required by the NEPA process has already been provided. The Palo Verde draft environmental statements, which had earlier been circulated by Staff for comment, included the salt deposition subject matter. When a draft environmental statement contains sufficient discussion of the general subject matter, a new DES will not be required to be circulated.8_/
WestValley'sargument(3)isalsoinerror. There is no basis in fact for its claim that there will be a less thorough review of the salt deposition issue if a supplemental FES is not prepared. Staff intends to perform just as careful an analysis for the hearing on t6.e salt deposition i'; sue as it would have if it had prepared a supplemental FES.El 3.
Harm To Other Parties This factor weighs in favor of denying the stay. There is potential l
economic harm to the Applicant which could be caused by delay in the fuel load date of Unit 2.
See Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-404, 5 NRC 1185,1188 (1977); Public Service l
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Niagara Mohawk Power Corp. (Nine Mile Point, Units 2), ALAB-264, I NRC 347, 371-372. Moreover, there may be instances when even a lack
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of such prior notice may not be fatal since, as the Ninth Circuit has stated, "... The public coment process... is not essential every time new infomation comes to light after an EIS is prepared l
"since to do so"... could prolong NEPA review beyond reasonable limit. State of California v. Watt, 683 F.2d 1253,1268 (9th Cir.1982).
See also Staff's May 26, 1983 Answer at 9-11.
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There is assurance that this analysis will be complete since if at the hearing the Licensing Board is not satisfied, it can require further development of the record to support the license application. See Public Service Co. of New Hampshire (Seabrook Station Units 1 FT),
CLI-77-8, 5 NRC 503, 526 (1977), quoting Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 321, 334 (1973).
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.. _... _ -. Company of Indiana (Marble Hill, Units 1 & 2), ALAB-437, 6 NRC 630, 634 4
(1977).
4.
Public Interest This factor also weighs in favor of denying the stay. The public interest is in favor of this denial since there ir 3 strong public interest in having an early decision on a nuclear facility, whether that decision is positive or negative. Allied Nuclear Services, supra, 2 NRC at 684.
West Valley argues regarding this factor that the public interest requires the preparation of an adequate EIS before an agency can proceed with a project that has a significant effect on the human environment.
(Memorandumat11). Although under certain circumstances not here present this assessment tray be correct, it is not now applicable since the Licensing Board has correctly found that "... at this time, there is no basis in the record for determining that the environmental reports prepared by the Staff are inadequate or that the conclusions therein are incorrect."
Opinion at 6.
III. CONCLUSION For the aforesaid reasons, West Valley's motion to stay the Licensing Board's decision to pennit hearings to proceed without a supplemental FES should be denied.
Respectfully submitted, b
Lee Scott Dewey Counsel for NRC Staff Dated at Bethesda, Maryland this 8th day of August, 1983 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COPMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of 4
ARIZONA PUBLIC SERVICE Docket Nos. STN 50-529 COMPANY, ET AL.
STN 50-530 (PaloVerdeNuclearGenerating Station, Units 2 and 3)
CERTIFICATE OF SERVICE I hereby certify that copies of " STAFF'S ANSWER TO WEST VALLEY AGRICULTURAL PROTECTION COUNCIL, INC.'S MOTION SEEKING STAY OF LICENSING BOARD'S DECISION TO PERMIT HEARING TO PROCEED WITHOUT A NEW FES" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, this 8th day of August, 1983:
Alan S. Rosenthal, Chainnan*
Stephen F. Eilperin*
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Washington, D.C.
20555 Howard A. Wilber Dr. Richard F. Cole
- Atomic Safety and Licensing Administrative Judge Appeal Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Washington, D.C.
20555 Robert M. Lazo. Esq., Chairman
- Ms. Lee Hourihan Administrative Judge 6413 S. 26th Street Atomic Safety and Licensing Board Phoenix, AZ 85040 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Board Panel
- Dr. Dixon Callihan U.S. Nuclear Regulatory Comission Administrative Judge Washington, DC 20555 Union Carbide Corporation P.O. Box Y Atomic Safety and Licensing Oak Ridge, TN 37830 Appeal Board
- U.S. Nuclear Regulatory Commission Washington, DC 20555 Arthur C. Gehr, Esq.
Charles Bischoff, Esq.
Lynne Bernabei. Esq.
Snell & Wilmer Government Accountability Project 3I00 Valley Center 1901 Q Street, N.W.
Phoenix, AZ 85073 Washington, D.C.
20009 l
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__ Rand L. Greenfield i
Assistant Attorney General P.O. Drawer 1508 Santa Fe, New Mexico 87504-1508 Kenneth Berlin, Esq.
Winston & Strawn Suite 500 2550 M Street, N.W.
Washington, D.C.
20037 Docketing and Service Section*
Office of the Secretary U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Edwin J. Reis /
Assistant C f Hearing Counsel l
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