ML20027C354

Objections to ASLB 820922 Prehearing Conference Memorandum & Order.Certificate of Svc Encl

ML20027C354
Person / Time
Site:	Harris
Issue date:	10/08/1982
From:	Read D CHAPEL HILL ANTI-NUCLEAR GROUP EFFORT
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8210150340
Download: ML20027C354 (7)

Text

_ _ _ _ _ _ _ _ _ _ _ __

\ .

'd.

00CKETED

, USHRC UNITED STATES OF AMERICA g j2 p2d9 '

NUCLEAR REGULATORY COMMISSION

@0C

" GS BRAttCH BEFORE THE ' ATOMIC SAFETY AND LICENSING BOARD Glenn O. Bright Dr. James H.' Carpenter James L. Kelley, Chairman

)

In the Matter of )

) Dockets 50 400 OL CAROLINA POWER AND LIGHT CO. et al. ) 50 401 OL (Shearon Harris Nuclear Power Plant, )

Units 1 and 2) )

) October 8, 1982 ,

RESPONSE TO MEMORANDUM AND ORDER On September 22, 1982, the Board issued a " Memorandum and Order (Eeflecting Decisions Made Following Prehearing

+

Conference)," following a prehearing conference which took

. plac,e at Raleigh, North Carolin'a on July 13-14, 1982. Now comes Intervenor CHANGE /ELP and responds to that order as follows:

Ob.iection Number i On the 27th day of September,1982, CHANGE /ELP submitted

~ ^

a "Suppleme$tal,Stategent Regarding Psychological Stress Con-

,tentions;" also on the 27th, after mailing same, Daniel F.

Read of CHANGE /ELP received the Board's o erg The Supplemental Statement consisted largely of legal argument concerning the PANE v. NRC case, the cognizability of psychological stress issues under it, and the duties of the NRC and the Board under

}

the Administrative Procedure Act, 5 U.S.C. 551 et- sea. In essence, the statement contended that the NRC policy state-

[ g o150340 82105 'A g- ADOCM 05000400 )

PDR '

'Q ,C) / )

y, o .

Page 2 ,

ment on such issues, 47 F.R. 31762, had no binding effect -

on this proceeding under the rule of law in Pacific Gas &

Electric Co. v. Federal Power Commission, 506 F.2d 33 (D.C.

Cir.1974) and related cases, and that the Board must be

" prepared to support the policy. statement just as if it had never been issued," Id. , rather than dismiss Intervenor's contentions out of hand with a simple reference to the pol-icy statement (as unfortunately happened, Order at pp. 25-CHANGE /ELP 26). Since the two items crossed in the mail,k ba>a! on ces marts 'h N h f fk ~

asks the Board to reconsider its actioni rmoves such reconsid- fSs.ts ^f AI eunt erationbemade(ifnecessarh,oralternativelytorespond to the arguments made by -CHANGE /ELP concerning th'e cogniz-ability 'of psychological stress issues " just as if the policy a

statement had never been issued."

Objection Number 2 CHANGE /ELP has moved that the Board postpone consider-~ .

ation of an operating license for Unit 2 of the Harris plant until such time as reasonable assurance can be had that it will in fact be substantially complete. The Eoard denied this i

l motion, citing policy considercr, ions that facilities not be unnecess'arily idled, considerations of judicial efficiency,

'and advantages and efficiencies for applicants and staff; ,

Order at pp. 75276. Again, CHANGE /ELP has submitted infor-l

! ,, mation with regard to this motion which crossed the Board's l j

order, and asks that the Board reconsider its decision in ,

l

, light of that information. Intervenor would also point jntt that Unit 2 is not scheduled for completion until 1989, seven tien years hence, and 3 disregarding the fact that planned 1983 ex .

.c

[ . . -

Page 3 penditures for the unit would be cancelled, so that if (as Applicants predicted) these hearings begin next year and conclude within a year or two, the Board's decision would 4

still predate starup j

by at least four years, making any "de-lay" of ' heeded facilities" a dis' tant possibility. But it is CHANGE /ELP's contention now as before that the CP/OL process was not designed, and adhered to by Congress, with an idea to building in comfortable safety margins for Appl,1 cants worried about licensing dleays. CHANGE /ELP objects to the Board's decision to hear Docket 401 at this time, and asks that the Board reconsider its decision in light of new info-

. rmation submitted. In the alternative, CHANGE /ELP asks that the Board, taking notice of the unsettled nature of matters regarding financing, etc. of the plant in light of the sur-prising nature of the order of the Utilities Commission,.vac-ate its denial of the motion and hold the question open 'n- u til the .end of the next CP&L rate case (note Graham's comment, "we have to file another rate case c.s quickly as we can,"

"New Information" at p. 6). As a third alternative, CHANGE /

ELP asks the Board to certify the question to the Commission:

l as noted earlier by CHANGE /ELP, the question of what is 1

"substantially c,omplete" or when a facility is " essentially completely constructed" for purposes of OL consideration has not been considered at length in the case law, see "Re-

! newal and Reformation of Motlon" at pp. 6-7. Therefore, this is "a major or novel question of law, policy or procedure,"

l l 10 C.F R. Part 2, App. A(VI)(f)(4), which should be consider- + ,

O M .

Page 4 ed by the Commission or the Appeal Board, approximately in the following form:

At what point is a facility sufficiently complete such that an application for an operating license for that facility is not premature? and In the case of a multi-unit facility, assuming that the unit nearest completion has satisfied the criteria outlined in response to the first part of this the other unit (question, at what point $s (are)s) sufficiently complete such that cation for an operating license for these other facilities is not premature?

Objection Number 3 In rejecting CHANGE /ELP contention 38, the Board noted that the mandate of the Court in NRDC v. NRC, F.2d , 12 E.L.R.

(D.C. Cir.1982) "has not yet issued,"and that therefore th'e Board must consider the rule (Table S-3) still to be in effect. Intervenor objects to this holding, which it cannot reconcile with the language of the Cdurt:

[W3e hold that the original interim and final Table S-3 Rules are invalid,due to their failure to allow for proper consideration of the uncer-tainties that underlie the assumption-that sol- -

idified highslevel. and transuranic wastes will not affect the environment once they are sealed in a permanent repository. . . .We , therefore, vacate all three rules. 12 E.L.R. 20484.

The Court discussed retroactive effect of its decision, and 4

implicit in its holding is the invalidity of the table as

- 5

.to the licenses under consideration here. CHANGE /EIP aks the Board to clarify its rejection, or to reconsider and

^

, lift'it. ,

Objection Number 4 ,

The Board rejected CHAliGE/ELP contention 73(b)', which

3.

Page 5 salled for a NEPA consideration of the possible environ-

~

mental effects of use of plutonium produced at the plants for military applications. The Board rejected this conten-tion as too " remote" and suggests that military use of plu-tonium produced at Harris is unlikely, Order at pp. 27-28.

Intervenor objects, on the ground that the Board has over-looked one of the critical points with regard to this con-tention, i.e., that Applicants propose to manufacture some

~

hundreds of kilograms of plutonium each year at their plant.

This plutonium, once manufactured, will be accessible for use as weapons material or for other uses, not just for the life of the plant, but for thousands of years. It is this special long-lived potential of plutonium that presents the real danger of " adverse environmental effects" which >

might be avoided, see 42 U.S.C. 4332(2)(C)(ii). Because <

there is not at this moment a policy to use this plutonium a for weapons, does not mean that it will not happen, although fortunately the only steps taken under the present a'dminis-tration have been suggestions. Nevertheless, as Commissioner Gilinsky pointed out, " governments that seem ' safe' onawday can be replaced by governments which are not, whereas nuc-lear explosives remain explosive for thousabds of years," (

w Wall Street Journal, July 15, 1982, p. 31. While hommission-

.  ?

er Gilinsky's commentswere adressed to exportation of nuc- < .4

• 1 ear mat'erials, they hold equally trub for the United States -

government or whatever government may control Harris spent l

fuel in the next few thousand years. The Board questions  ;

l the likelihood of such usage of plutonium; Intervenor would <

~

l point the Board's attention to well-established ' legal theory '! '

k

,e s ,

Page 6 of risk assessment, where as the magnitude of the risk.

necessary  ;

increases, the probability of its occurrence /to justify i legal action decreases proportionally, and in light of the l terrible risk involved here, would ask that the Board cer-tify the question to the Commission for the same reasons outlined at p. 3, in approximately the following form:

Whether, in light of the magnitude of the potential harm, and the exceptional long life of plutonium produced by the Harris plant as a source of explosive material and our known inability to foresee continuity of governments or their policies for more than one hundred years, the NEPA consideration of the effects of operation of said plant should include the ,'

effects of military use of plutonium produced at said plant, or whether despite the special nature of plutonium the usual common law of NEPA should apply? ,

Conclusion CHANGE /ELP'also notes the Board's def,erral of ruling on the applicability of Table S 4 to the present applicat-ion and environmental considerations under it. CHANGE /ELP would respectfully question whether the proposed rulings are within the Board's authority, but will reserve any formal objection until such time as the Board rules on the s matter. e . -

~

CHANGE /ELP recognizes and appreciates the mammo'h task t

the Board has accomplished with this order, but objects as stated above. Respectfully submitted, Qi e 'l e-DA'NIEL F. READ President, CHANGE P.O. Box 524 Chapel Hill, NC 27514 m D

w.

- - -v.

,, ; ~ , 's h O 00gs,Qg

~ UNITED STATES OF AMERICA NUCLEAR ~ REGULATORY COMMISSION 7 p739 In the Matter of CAROLINA POWER & LIOHT CO. Docket et al. , Shearon Harris Nuclear Plant, Units c 1 & 2 [trlgICE uGC 8 CERTIFICATE OF SERVICE I he eby certify that copies of Yo MM J-c 'To b MM'id4M Nf" were served this 9'd1 day of Octoker ,198 2, by deposit in the U.S. Mail, first-class postage prepaid, upon all parties whose names appear below, except those whose names are marked with an asterisk, for whom service was accomplished by hbnd ChllWvtA .

J James L.

Atomic Safety Kelley,& Licensing BoardEsq./Mr. Glenn O. Bright(one/Dr. each)

James Carpenter U.S. Nuclear Regulatory Commission

• Washington, DC 20555 Office of the Executive Legal Director -

U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section Office of the Secretary MM SPpgT NN N i U.S. Nuclear Regulatory Commission Washington, DC 20555 l&OO M 5'T MW wawyton, 9 c 2oom fMr.JohnD.Bunkle Canservation Council of North Carolina Dr. Phyllis Lotchin 108 Bridle Run 307 Granville Road Chapel Hill, FC 27514 Chapel Hill, NC 27514 M. Travis Payne, Esq. Mr. Wells Eddleman Edelstein and Payne 718-A Iredell Street P.O. Box 12463 Durham, NC 27705 Raleigh, NC 27605 Dr. Richard D. Wilson Patricia / Slater Newman 729 Hunter Street CANP Apex, NC 27502 2309 Weymouth Ct.

Raleigh, NC 27612

(

Daniel F. Read President Chapel Hill Anti-Nuclear Group Effort P.O. Box 524 Chapel Hill, NC 27514

_ _ - _ _ _ _ _ - _ - _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ .