ML20028E140
| ML20028E140 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 01/18/1983 |
| From: | Hooper F, Linenberger G, Wolf J Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8301210022 | |
| Download: ML20028E140 (10) | |
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SERVED JAN191gg3 09ha45E" UNITED STATES OF AMERICA g3 g)19 N153 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
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Before Administrative Judges DC '
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John F. Wolf, Chairman Frank F. Hooper Gustave A. Linenberger, Jr.
In the Matter of
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Docket Nos. SIN 50-522
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STN 50-523 PUGET SOUND POWER AND LIGHT COMPANY, ET AL.
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(Skagit/Hanford Nuclear Power Project)
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January 19, 1983 MEMORANDUM AND ORDER RESTATING ADMITTED CONTENTIONS In light of representations made by various parties during the l
December 2,1982 joint prehearing conference and subsequent thereto, a reassessment of all proposed NRC contentions has been made by the NRC's ASLB. As the result, a revised list of admitted contentions is presented with explanatory or amplifying comments where appropriate.
ADMITTED CONTENTIONS Contention 1.
The Applicants have relied upon an inflated calculation of demand for electrical energy; reliable regional energy forecasts demonstrate no need for the Skagit/HNP.
The Board and EFSEC are mindful of numerous inadequacies in the transcript of that conference that render portions of the record difficult to interpret.
8301210022 830118 PDR ADOCK 05000522 C
PDR Page 1
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Y Comments.
This contention represents a consolidation of the following parties and their respective related contentions in accordance with 10 CFR 2.715a: NRDC, Contentions 1 and 2; YIN, Contention 1; NWF/0EC, Contention 1; CSP, Contention 1; and CRITFC, Contention 1.
NRDC is designated as lead party for the purposes delineated in the NRC regulation cited above. The bases'for this contention shall be those set forth by NRDC in support of its Contentions 1 and 2.
Centention 2.
Intervenor NRDC alleges that the Applicants will not be able to market surplus electrical energy output from the Skagit/HNP outsido of the Pacific Northwest Region.
(NRDC 3)
Comments.
This contention appeared as admitted Contention 6 in the Board's order of November 2, 1982.
Its renumbering recognizes its relationship to Contention 1, above, and the Board's desire that it be heard immediately following the litigation of Contention 1.
Contention 3.
The Applicants have used an inaccurately low.
estimate of the financial cost of the Skagit/HNP in their balancing of costs and benefits.
Comments.
This contention represents a consolidation of NWF/0EC CRITFC and YIN with respect to NWF/0EC Contention 3 YIN Contention 2, and CRITFC Contention 3; NWF/0EC is designated as lead party (10 CFR 2.715a). The bases for this contention comprise paragraphs A through D of the May 21, 1982 second supplement submittal of NWF/0EC at pages 2-3.
The three consolidated contentions were identically worded.
The Soard reaffirms its deletion of environmental costs from the scope of this contention.
Contention 4.
Applicants have misapplied the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., by rejecting the following alternatives which are available, environmentally preferable and more economical than the proposed Skagit/Hanford Nuclear Project: wind power, biomass, solar, conservation, co-generation, hydro, increases in the efficiency of the electricel delivery system, adjustments in wholesale and retail rate structures, abandonment or modification of critical cater planning, ocean temperature differences Page 2
Y and alcohol fuel.
Further, Applicants have fc11 owed a very narrow view of this Act by considering each alternative separately. Applicants must also be required to consider combinations of various appropriate technologies as alternatives to the proposed project.
Comments.
The rewording of this contention is consistent with one of the Board's orders of November 30, 1982. The contention represents a consolidation of the following parties and their respective related contentions: CSP, Contention 4; NWF/0EC, Contention 2; YIN, Contention 3; NRDC, Contention 4; and CRITFC Contention 2.
The lead party has been redesignated (separate Board Order of November 30, 1982) to be NRDC (10 CFR 2.715a).
Contention 5.
Intervenor YIN contends that Applicants have made an inadequate assessment of the potential for 2 adiological contamination of salmon, steelhead, eels and other naturally occurring foods in the Columbia River from the operation of the proposed S/HNP project as regards members of YIN who consume large quantities of these foods.
(YIN 6)
Comments.
It should be noted that the word " radiological" has been inserted, to assure consistency with the basea stated by YIN for its Contention 6, in its petition supplement of September 29, 1982, pages 46 through 51.
The Board considers the FES (in this instance the joint EFSEC-NRC Final Environmental Statement scheduled for issuance in March, 1983) to be the determinative document with respect to environmental impacts under NRC's NEPA obligations (1 NRC 51, 55, 1975).
Accordingly, the Board will use the joint FES as guidance during the litigation of this contention.
Contention 6.
Petitioner CSP conteads that the radiological impacts of normal operation and accidents upon the environmental cost of the S/HNP have been underestimated to such an extent as to inappropriately alter the cost benefit balance required by NEPA and 10 CFR 51.20 in favor of constructing the project.
(CSP 14, as reworded by the Board's order of July 6, 1982.)
Comments. The Board sees no merit to interrelating this contention with the contentions of other parties.
In their motion to clarify and Page 3
5 amend of December 13, 1982 Intervenors NWF/0EC, CRITFC and CSP (stating that YIN concurs) appear to propose the consolidation of these four parties with respect to contentions CSP 14, NWF/0EC 3, YIN 2 and CRITFC 3 (see referenced motion at page 2).
The Board has considered the suggestion and the rationale presented for it and has decided that the Board can best evaluate the adequacy of cost benefit balancing from litigation of the contentions as admitted herein. Hence, the motion directed to those four contentions is denied. The basis for this contention set forth by CSP in their revised contentions submittal of May 24, 1982 is acceptable and guides our determination.
Mcwever, as mentioned elsewhere, the FES will be the determinative document regarding NRC's NEPA obligation to balance benefits and costs.
Contention 7.
Intervenor CSP contends that the S/ hhp foundation-design is inadequate to permit the plant to withstand (for the purposes of safe shutdown) potential seismic events at the site.
(CSP 25)
Comments.
This contention has been accepted essentially as worded by CSP and predicated upon the basis supplied by its revised contentions submittal of May 24, 1982 (pages unnumbered).
For the purpose of
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litigation, this contention is construed by the Board to allege that the 5/HNP facility does not meet the seismic and geologic siting criteria l'
for nuclear power plants set forth in Appendix A to 10 CFR 100.
l Contention 8.
Intervenor CSP alleges that the Applicants' cost projections used in weighing costs against benefits are questionable in the following limited respects:
A higher than justified plant capacity factor has been used;
- and, Fixed charges, interest rates, and capital cost projections have been underestimated.
(CSP 29)
Comment.
Reference is made to the Board's Order of July 6, 1982 at page 6 regarding the reatriction of the scope of this contention.
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r Contention 9.
Intervenor CSP contends that the somatic and genetic effects on humans of radiation released from the proposed project during normal and abnormal operating conditions have been underestimated by Applicants, thus resulting in an entirely underestimated cost of the plant in the cost-benefit analysis required by 10 CFR 50.21(b)[ sic).
(CSP 30)
Comments.
The Board construes the scope or this contention as being limited to impacts upon humans and to whether:
a)
The radiation releases referred to exceed permissable levels defined by the NRC regulations; and/or b)
Said radiation releases (if not exceeding NRC regulations) may be expected to produce somatic and genetic effects deemed unacceptable on the basis of competent analyses.
The occupational radiation effects associated with decewmissioning the facility are held to be beyond the scope of this proceeding.
The radioactivity burden of land, water and biota are also excluded from consideration except for their direct impact on humans in the context of (a) and (b) above.
Contention 10.
Intervenor CSP contends that Applicants underestimate the potential and significant costs of an accident in Section 7.4 of the ASC/ER as required by 10 CFR 51.20.
(CSP 35)
Comments.
Contention 10 of the Board's Order of November 2, 1982 Iisting accepted contentions had previously been eliminated upon summary disposition by the Board's Order of September 16, 1982 and should not have been included in the November 2, 1982 listing.
Thus Intervenor CSP Contention 35 from its revised contentions submittal of May 24, 1982 is now numbered as accepted Contention 10.
Intervonor's stated bases for this contention (see penultimate page of CSP revised contentions submittal of May 24, 1982) are adequate to support admissibility. The Board considers the following comments to be relevant:
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7 The joint NRC-EFSEC FES is the determinative document with respect to whether the obligations imposed by NEPA have been properly met (1 NRC 51, 55, 1975);
The Commission (in interpreting its NEPA obligation) has stated that "Under NEPA the issue is not whether the applicant can demonstrate reasonable assurance of covering certain projected costs, but rather is merely what costs to the applicant of constructing and operating the plant are to be put into the cost-benefit balance."
(47 FR 13753, March 31, 1982); and, 10 CFR 51.20 51.22, 51.23, 51.26 establish the scope of responsibilities that must be met by Applicants' and Staff's environmental impact assessments.
Contention 11.
CRITFC by ita second petition supplement of July 16, 1982 and YIN by its petition supplement of September 29, 1982 submitted identically worded contentions, numbered 5, that read as follows:
5.
The environmental impacts of the proposed Skagit/Hanford Nuclear Project on Columbia River fish and wildlife resources have not been fully assessed.
Furthermore, environmental impacts must not infringe Indian treaty rights.
Comments.
Each Intervenor in identically worded statements proposed that it " incorporates by reference the contentions and bases filed by the National Wildlife Federation and the Oregon Environmental Council on this matter."
Each Intervenor then followed that statement with a list of additional bases to support its respective Contention 5.
In their Motion to Clarify and Amend certain contentions filed on December 13, 1982 (subsequent to the joint EFSEC-NRC prehearing conference of December 2, 1982) intervenors NWF/0EC, CRITFC and CSP (stating that they had the concurrence of YIN) moved in part to consolidate NWF/0EC, YIN and CRITFC with respect to Contentions NWF/0EC 4, YIN 5 (first sentence) and CRITFC 5 (first sentence).
The motion further proposed the splitting of lead party responsibilities dependent upon which basis was being covered in litigation.
Finally, the motion stated that it was not the intent of CRITFC and YIN that each of their Page 6
4 contentions numbered 5 be considered as two separate contentions in the-manner previously held by the Board.
Having again reviewed all matters relevant to these considerations, the Board construes as follows.
The Board sees no merit to commingleing NWF/0EC Contention 4 with the above stated Contentior. 5.
The bases for the former relate to the hydro-peaking impacts that may derive from operation of the proposed S/HNP facility, and comprise considerations that are separable from the bases of Contentica 5.
Furthermore, Intervenors CRITFC and YIN offer no guidance as to which " contentions and bases" filed by NWF/0EC they deem supportive of each Contention 5.
Accordingly we deny Intervenors' Motion of December 13, 1982 with respect to the consolidation of NWF/0EC 4 with YIN 5 and CRITFC 5.
Turning now to Contention 5, the Board considers that each of the two sentences therein represents a separable topic, since there may be some environmental impacts that do not infringe Indian treaty rights.
Moreover, the second sentence of Contention 5 constitutes an admonition rather than an allegation and thus is not a properly framed contention.
Hence, we deny the admission of the second sentence of Contention 5.
The first sentence each of CRITFC 5 and YIN 5 comprises an admissible contention for which particularized bases have been supplied.
I With respect to those bases, the Board observes that there are numerous l
similar and even identical bases provided by the two intervenors. Many of said bases end with, in effect, a conclusion of law with respect to the existence of a treaty right and the admonition that consideration of infringement of that right is e:sential. The Board holds that many of the statements regarding the existence of rights are generalizations regarding the intervenors' views of what applicable policy ought to be; Page 7
6 others seek to raise issues which are not concrete or litigable.
Neither the generslizations, tha attempts to raise issues which are not concrete not the admonitions to consider the infringement of treaty rights constitutes proper bases for contentions. Therefore, litigation.
of treaty rights will not be part of the NRC proceeding. With this modification of bases as a condition imposed upon intervenors, the Board admits the first sentence each of CRITFC Contention 5 and YIN Contention 5.
The two parties are consolidated in accordance with 10 CFR 2.715 with respect to this contention and CRITFC is designated as lead party.
Contention 12.
The Applicants have failed to assess fully the environmental impacts of the S/RNP project on Columbia River Fish and Wildlife Resources, (NWF/0EC 4) l Comments.
In its second petition supplement of May 21, 1982, Intervenor NWF/0EC alleges that there has been an inadequate treatment of impacts that might derive from hydro-peaking operations modified to coordinate with S/HNP operation. Upon reconsideration of our Order of July 6, 1982, the Board determines that this is an acceptable
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contention, if limited to hydro-peaking impact matters. Accordingly, l
NWF/0EC Contention 4 is admitted, f
DISCUSSION OF CERTAIN REJECTED CONTENTIONS l
l YIN Contentions 7, 8, and 9.
By its motion of December 10, 1982, the Yakima Indian Nation (YIN) l requested that the Board reconsider its October 29, 1982 rulings l
regarding YIN Contentions 7, 8 and 9.
In that motion, YIN did not provide any basis for reconsidering the Board ruling on Contention 7.
Accordingly, we reaffirm our ruling rejecting that contention 3
(Ibid
- p. 4).
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D' Contention 8 of YIN alleges that " Applicant has not provided for access to the Hanford Reservation for the exercise of treaty reserved rights of the YIN and its members within the Hanford Reservation and S/HNP site area."
Neither in its contention (filed in its supplement to petition to intervene of September 29, 1982) nor in the instant motion for reconsideration does YIN provide a basis for alleging that Applic. ants have authority to control access to the Hanford Reservation by YIN, or by anyone else.
We do not, and need not, reach the question of whether treaty reserved rights permit access to the Hanford Reservation by YIN.
Absent a basis for believing that Applicants control such access, YIN's Contention 8 is not admissible. Accordingly, we affirm our decision of October 29, 1982 rejecting that contention.
With respect to its Contention 9, YIN alleges that the previous escape of stored nuclear wastes in the Hanford site area constitutes a prior traumatic event that serves as a basis for Board reconsideration.
However, in its Policy Statement of July 16, 1982 the Commission, at page 4, in part stated that:
"In the Commission's view, the only nuclear plant accident that has occurred to date that is sufficiently seriour to trigger consideration of psychological stress under NEPA is i
l the Three Mile Island Unit 2 accident. Accordingly, only this accident can currently serve as a basis for raising NEPA psychological stress iscues."
The Board affirms its prior rejection of YIN's Contention 9.
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(
YIN ContenLijn 10.
fSee Board Order of October 29, 1982 at page 5)
As reworded by the Board YIN 10 reads as follows:
Sovereignty of YIN and trust responsibility of United States of America and the unique relationship between two governments require that YIN be permitted to raise and the NRC should assist in the examination of any situtation, occasioned by the granting of the S/HNP construction permit, for which YIN can support by probative evidence that any of its treaty rights have been abrugated or impaired.
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o The proposed contention does not raise any issue which is litigable in a construction permit proceeding.
It suffers from the fact that it ic unacceptably vague, accordingly it does not meet the requirements of the N9C rules of procedure, i.e., 10 CFR z.714, St"se Power Company (Catawba Nuclear Station, Units 1 and 2), AI.AB-687,16 NRC (1982). The claimed " unique" relationship with the United States of Ar. ica does not constitute grounds for exempting YIN's proposed contentions from satisfying the criteria set forth in 10 CFR 2.714.
It is so ORDERED this 18th day of January, 1983.
THE ATOMIC SAFETY AND LICENSING BOARD
%4. Loat n F. Wolf, Chairman /
INISTRATIVE JUDGE I
h'[h.
I Frank F. Hooper
[J
/
ADMINISTRATIVE JUDGE l
l l
citave A. Linenberge Jr.
AD[INISTRATIVE JUD Dated at Bethesda, Maryland l
2 l
Puget Sound Power and 1.ight Co. (Skagit Nuclear Power Project, l
Units 1 and 2), ALAB 523, 9 NRC 58, 63-64 (1979).
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