ML20030D704
| ML20030D704 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 09/08/1981 |
| From: | Silberg J ALLEGHENY ELECTRIC COOPERATIVE, INC., PENNSYLVANIA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8109150547 | |
| Download: ML20030D704 (15) | |
Text
Septcmbnr 8, 1981 ob UNITED STATES OF AMERICA g'\\
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOAR j
In the Matter of
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PENNSYLVANIA POWER & LIGHT COMPANY
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Docket Nos. 5
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50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC.
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(Susquehanna Steam Electric Station,
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97 SEP g 1981 e-l APPLICANTS' ANSWER TO SUSQUEHANNA y-)
l ENVIRONMENTAL ADVOCATES " MOTION gg g_2 g-e3 FOR ALLOWANCE OF NEW CONTENTION g;;}grg & W. ;. yf l
(FROPOSED CONTENTION 22)"
Ear.2 A.
Introduction b
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l On August 22, 1981 intervenor Susquehanna Environmental Advocates (" SEA") filed a " Motion for Allowance of New Contention l
l (Proposed Contention 22)" (" SEA Motion") which seeks admission into the proceeding of a Class-9 accident contention similar to an earlier proposed contention that was rejected by the Board.-1/
l Applicants oppose admission of Proposed Contention 22 on three grounds:.
l
-1/
Proposed Centention 22 reads:
The " Environmental Impact of Postulated Accidents", as l
assessed oy the Staff in Chapter 6 of the FES, grossly under-states said impact in that it relies on a probability factor which is far too low and either does not take into consideration or understates the economic loss due to physical health effects and long-term or chronic health and environmental effects.
l On May 6, 1981, SEA filed a " Proposed Contention 21" which was found by the Board not to meet the NRC's test for acceptable contentions and consequently was not admitted.
See " Memorandum l
and Order on Pending Motions and Requests," dated July 7, 1981, slip op at 4.
The rejected contention read:
Applicants' supplement to the Draft Environmental Statement vastly understates the health and economic effects of a Class 9 accident.
In addition, it relies on the Rasmussen Report, which itself did not take into consideration human error.
In addition, it is not sit.3 specific, as required by NRC regulations.
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(1) the proposed contention was filed late and SEA has failed to satisfy the conditions under 10 C.F.R. SS 2.714 (a) and (b) for admission of late contentions; (2) the proposed contention is not based upon new information; and (3) the proposed contention lacks 1
the specificity and basis required, under 10 C.F.R.
S 2.714 (b),
l for the admission of contentions in NRC proceedings.
1 I
l B.
The Proposed Contention Is Unjustifiably Late l
SEA concedes that Proposed Contention 22 was filed late.
I SEA Motion at 3-4.
Indeed, Proposed Contention 22 comes l
exceedingly late, since the information on which the contention is based was contained in Supplement 2 to the Draft Environmental l
Statement for the Susquehanna Steam Electric Station, NUREG-0564
(" DES-2"), which was served on the parties at the end of March, 2/
1981--over five months ago.-
Even counting from the issuance of the FES, about two months have elapsed between service of the FES l
-3/
I and SEA's filing.
Under the terms of the most recent Board order
-2/
In its Motion, SEA lists several items of "new information" appearing in the Final Environmental Statement for Susquehanna, l
NUREG-0564 (June, 1981)
("FES"), which it claims support filing of the new contention.
However, as will be further discussed below, those items--to the extent that they constitute "new information"--are not relevant to Proposed Contention 22, and do l
not provide a basis for the proposed contention.
i 3/
SEA says that it " officially received a copy of the FES on July 22, 1981"; however, the FES was served on the parties on June 26, 1981, almost a month earlier.
See 46 Fed. Reg. 34442 (July 1, 1981). l
l on the subject, new contentions and any modifications of contentions based on new information must be sub-mitted to the Board for approval within ten days of the receipt of such new information.
Memorandum and Order (Hearing Date and Prehearing Conference Matters),
dated July 27, 1981, slip op. at 3.
Therefore, SEA's Proposed l
Contention 22 was late by four months, and in any event by at least three weeks according to SEA's own admission.
The fact that SEA was significantly late in filing this l
l proposed contention would strongly militate, absent adequate justification, against admitting the contentions Puget Sound f
Power & Light Co. (Skagit Nuclear Power Project, Units 1 and 2),
1 f
ALAB-552, 10'NRC 1, 5 (1979).
Coming as it does on the eve of the hearing, this late new contention must be rejected unless a compelling showing is made of the need for its admission.
Simple fairness, to say nothing of the public interest requirement that NRC licensing proceedings be conducted in an orderly fashion, l
demand that the Board be very chary in allowing a party to inject i
l I
new claims into the case as last-minute trial preparations are underway.
South Carolina Electric and Gas Go. (Virgil C.
Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC (June 1, 1981),
slip op. at 6.
l SEA has fallen far short of making a compelling caso for admitting its Proposed Contention 22.
Good cause for the late filing is perhaps the most important factor in determining whether l
a late contention should be admitted; see ALAB-552, supra, 10 -
i l
NRC at 5.-4/ SEA's asserted justifications for its lateness in filing the contention are lack of resources and qualified personnel and "the complicated nature of the issue." -5/
Neither constitutes good cause for failure to file on time.
As to lack of time and resources, the Appeal Board and the Licensing Boards have ruled many times that lack of time or resources or the press of other obligations are not acceptable as excuses for being tardy in filing contentions.
ALAB-552, supra, 10 NRC at 6, citing Duke Power Company (Cherokee Nuclear St. tion, Units 1, 2, and 3), ALAB-440, 6 NRC 642, 644 (1977); Consumers Power Company (Big Rock Point Nuclear 4/
The five factors to be considered in ruling on the admissibility of late contentions are:
(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner's interest will be protected.
(iii)
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the petitioner's interest will be represented by existing parties.
(v)
The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
10 C.F.R. S 2.714 (a) (1).
5/
SEA also alleges as justifying factors "the necessity...of writing a complete proposed contention, and the necessity of comparing
[the FES with the DES-2] on a line-by-line basis."
- Clearly, neither of these tasks was required to write a new contention and neither explains adequately SEA's lateness in filing. ~
h
l Plant), LBP-80-4, 11 NRC 117, 123 (1980).-6/
The other excuse tendered by SEA, "the complicated nature of the issue", is equally unconvincing.
Issues in NRC licensing l
proceedings are often complex, requiring an understanding of difficult technical processes and calling for expertise in.various i
scientific disciplines.
If NRC licensing proceedings could be held up every time a party sought to educate himself on a technical l
l issue, no case would ever advance to the hearing stage.
I SEA has given no indication, in its three attempts to formulate a proper Class-9 accident contention, that it possesses
[
l the expertise required to address this admittedly complicated j
issue in an adequate manner.
Thus, there seems to be little chance that SEA will be able to make a significant contribution if the contention is admitted.
In the absence of good cause for the late filing, the petitioner's demonstration on the other factors must be " compelling."
ALAB-642, supra, slip op at 6; ALAB-552, supra; Duke Power Company
-6/
These rulings are an application of a long-standing principle, articulated most recently by the Commission in its Statement of Policy on Conduct of Licensing Proceedings, CLI-80-8, 13 NRC 46 Fed. Reg. 28533, 28534 (May 20,1981) :
[T.15e fact that a party may have personal l
or othe obligations or possess fewer resources than others to devote to the proceeding does not relieve the party of its hearing obligations. s
l ALAB-431, 6 NRC 460, (Perkins Nuclear Station, Units 1, 2 and 3),
l and cases cited therein.
In the words of the Board's 462 (1977),
submitted much l
July 7, 1981 Order, slip op. at 5, SEA has "[not) information enabling the Board to weigh the factors favorably for l
SEA has merely recited the factors in admitting the contention."
affirmative form without making any effort to explain why they l
I In the absence of good cause support admission of the contention.
for the late filing, SEA's failure to address the remaining four factors requires that the proposed contention be rejected.
l at least two of the remaining factors also t
In any event, As men-strongly dictate that SEA's new contention be rejected.
there is little reason to expect that SEA's l
tioned above, l
participation in the litigation of the Class-9 accident issue Also, SEA l
will assist in developing a sound record on the issue.
l if Proposed Contention 22 is added to l
l admits (as it must) that, it will result in broadening the issues before the Board l
t the case, SEA Motion at 3.
- Actually, and lengthening the proceeding.
introduction of a Class-9 accident contention only weeks before the beginning of the hearing will most likely result in substantial for Applicants and Staff may need to seek discovery hearing delays, on the new contention, draft testimony (and, if appropriate, summary disposition motions), and prepare for a hearing on the contention, all while litigating the other issues awaiting l
In a less extreme situation, where the evidentiary consideration.
new contentions were sought to be introduced two months before the hearing, the Appeal Board held that it was manifest that introduction of inexcusably tardy new contentions would prejudice the other parties, ALAB-64I delay the proceeding and result in unnecessary waste of time.
supra, slip op, at 9-13.
-S-1
P Although the delay factor may not be conclusive, it is an especially weighty one.
ALAB-552, supra, 10 NRC at 5; "indeed--
barring the most compelling countervailing considerations--an inexcusably tardy petition would (as it should) stand little chance of success if its grant would likely occasion an alteration in hearing schedules."
Project Management Corporation (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 394-95 (1976), citing Long
. Island Light Co. (Jamesport Nuc'. ear Station, Units 1 and 2), ALAB-292, 2 NRC 637., 650-51.
Where,'as here, there is the combination of an unjus,1fied late contention on a " complicated" subject, offered on the eve of the hearing by an intervenor with no claim to expertise on the subject,.and almost certain to result in hearing delays, all precedents as well as fairness and common sense dictate that the proposed contention be rejected.
C.
The Proposed Contention Is Not based On New Information And Is Analogous To A Contention Rejected By The Board Under the terms of the Board's July 27, 1981 Memorandum and Order, "[n]ew contentions... based on new information must be submitted to the Board for approval within ten (10) days of the receipt of such new information.
The motions submitted must identify the new information specifically and not merely refer to a report or' document."
Slip op. at 3, emphasis added.
Proposed Contention 22, in addition to being late, is inadmissible because it'is not based on new information and is, in large part, essentially identical to SEA's former Proposed Contention 21 which was rejected by'the Board as lacking specificity and basis.
That Proposed Contention 22 is not based on new information is easily shown, for SEA has listed in its Motion (at pp. 2-3) the "new information" on which it relies.
SEA lists as the first category of new information the NRC's Staff's responses in the FES l
to public comments on the DES-2.
However, examination of the i
Staff's responses cited show that they do not contain any "new information" but merely restate or clarify the material previously presented in the DES-2.
The second category of "new information" is the arserted
" lack.of information concerning long-term health and economic effects i
of a major accident."
However, the alleged deficiency does not exist, for the long-term health and economic effects of a Class-9 accident at Susquehanna are addressed in Sections 6.1.4.4 to 6.1.4.6, Figures 6.1.4-5, 6.1.4-6 and 6.1.4-8, and Tables 6.1.4-4 and 6.1.4-5 of DES-2, and in the same numbered sections, figures and tables in the FES.
Therefore, the allegedly missing "new infor-mation" is neither missing nor new.
The third category of alleged "new information" is said to consist of "[m]any specific changes",from the DES-2 co the FES.
Again, a comparison of the sections cited shows that the changes are irrelevant to SEA's proposed contention.
Mcre importantly, SEA fails to state the significance of the listed l
changes or how they support or justify the contention.
Not only le Proposed Contention 22 not based on "new information" as faquired by the July 27, 1981 Memorandum and t
Order, but the contention appears to differ little from SEA's l '
4
i former Proposed Contention 21.-7/
Both proposed contentions broadly allege that the FES/ DES-2 vastly understates the long-term health and economic effects of a Class-9 accident Therefore, l
the prior Licensing Board ruling rejecting SEA's former Proposed Contention 21 is equally applicable to its new Proposed Contention 8/
22.
Both contentions are equally flawed, and the new contention l
is inadmissible for the same reasons that led to the exclusion 9/
of the former one.
l D.
Proposed Contention 22 Lacks Specificity and Basis Pursuant to 10 C.F.R.
S 2.714 (b), to be acceptable a proposed contention must include its " bases... set forth with i
reasonable specificity."
Proposed Contention 22 does not meet these requirements.
The first part of the contention alleges that the 7/
See n.1, supra, for the texts of both contentions.
~8/
The Board's July 7, 1981 ruling on SEA's Proposed Contention 21 is the " law of the case" with respect to that contention and may not be circumvented by the mere expedient of filing another, somewhat differently worded contention whose substantive allegations remain essentially the same.
See, generally, Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC l
1, 27 (1978); Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), CLI-77-13, 5 NRC 1303, 1321 (1977).
9/
Former Proposed Contention 21 was rejected as lacking specificity and basis.
The Board noted the proposed contention left the Board l
"to wander aimlessly in our speculation on the details of the l
allegations--a practice obviously unfair to proper procedure, to l
the parties and the Board."
Memorandum and Order on Pending Motions and Requests, supra, slip op. at 4.
" environmental impact of postulated accidents" set forth in Chapter 6 of the FES (and on the same chapter of the DES-2) " relies on a probability factor which is far too low."
However, SEA's Motion does not explain which probability factor is "too low" or why.
As shown at p.
6-19, Table 6.1.4.2, and Appendix "J" of the FES (same references, substituting Appendix "H" for Appendix "J"
in the DES-2), assuming that the probability of sustaining total loss of a facility can be equated with the probability of the occurrence of a core melt accident, then the probability of total loss of the facility equals the sum of probabilities for the accident sequences and sequence groups that lead to core melt and release of core inventory to the environment, which probabilities appear in Table 6.1.4.2 of the FES and the DES-2.
Proposed Contention 22 does not state which (if any) of the probability computations leading to Table 6.1.4-2 is in error or why.--10/Moreover, the Staff's computation of the environmental impact of Class-9 accidents is not based on the* probability of sustaining a total loss of the facility, but is computed independently for each accident sequence.
See Table 6.1.4.4.
The summation of probabilities set forth at pp. 6-19 and 6-20 of the FES is clearly given as an example and not as the result of the Staff's analysis.
10/
SEA's Motion alleges that the proper probability factor
" based on actual operating cy,perience is 1 in 400."
Motion at 1.
The alleged probability factor is based on the Three Mile Island accident occurring after 400 years of reactor operation.
Apart from he fact that a single event cannot be used to determine a probability factor, see FES at 6-77, the Three Mile Island accident does not belong to the class described a p. 6-19 and Table 6.1.4-2 of the FES, since it was not a core melt accident leading to release of the core inventory to the outside environment.
1
i 1
Therefore, this part of Proposed Contention 22 lacks both specificity and basis.
The second allegation in Proposed Contention 22 is that the long-term health and economic consequences of a Class-9 accident are not addressed, or are addressed inadequately, in the FES.
SEA finds fault with the NRC's analysis of these matters in that the FES
" includes only a brief discussion and a reference to Table 6.1.4-4,
' Summary of Environmental Impacts and Probabilities', which includes cost figures."
SEA Motion at p.
2.
Again, there is no specification of what is wrong, if anything, with the FES' analysis except perhaps 11/
that SEA finds it too brief,--
or what are the bases for SEA's challenge to the analysis.--12/
It suffices to point out that both the long-term health effects and economic consequences of the various Class-9 accident sequences at Susquehanna are addressed in the FES (as they were in DES-2).
The long-term nealth effects are addressed in pp. 6-13 and 6-14 of the text, in Figures 6.1.4-5 and 6.1.4-8,' and in Tables 6.1.4-4 and 6.1.4-5.
The long-term economic consequences are addressed in pp. 6-13, 6-14 and 6-17 through 6-20 of the text, in Figure 6.1.4-6,.and in Tables 6.1.4-4 and 6.1.4-5.
--11/
In fact, the analysis which SEA finds too brief extends for thirteen full pages in the FES and the DES-2 (6-9 through 6-21) and is supported by five tables, eight figures and an appendix.
12/
SEA suggests that the Staff's analysis is not " site specific" (see also former Proposed Contention 21), Motion at 2.
However, the Staff responded to this same complaint in SEA's written comments on the DES-2 by stating that the analysis is based on conditions specific to the Susquehanna site.
See FES, pp. 6-54, 6-55, 6-61.
(The references are the same for the DES-2).
SEA has made no specific allegations as to any shortcomings in these analyses.
Lacking specificity and basis, this second part of Proposed Contention 21 is also inadmissible.
l E.
Conclusion l
l l
For the above stated reasons, SEA's Proposed Contention 22 l
fails to meet the requirements of acceptable contentions in NRC licensing proceedings and should be ajected.
Dated:
September 8, 1981.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By M(e
/
l Jay [ ele lilbergTravieso-Diaz/
Ma g, s Counsel for Applicants 1800 M Street, N.W.
Washington, D.
C.
20036 I
Telephone:
(202) 822-1000 l
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l l
l i
i UNITED STATES OF AMERICA I
NUCLEAR REGULATORY COMMISSION l
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter PEWNSYLVAtiIA POWER & LIGHT COMPANY
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l and
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Docket Nos. 50-387
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50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC.
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(Susquehanna Steam Electric Station,
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Units 1 and 2)
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l CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicants' f
Answer to Susquehanna Environmental Advocates ' Motion For Allowance Of New Conte.ntion (Proposed Contention 22)'" was served by deposit l
l in the U. S. Mail First Class, postage prepaid, this 8th day of f
September, 1981 to all those on the attached Service List.
/
f l
1 Jay 1" ilber4 r
Dated:
September 8, 1981.
-Q x
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SA"ETY AND LICENSING BOARD In the Matter of
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PENNSYLVANIA POWER & LIGHT COMPANY
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AND
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Docket Nos. 50-387
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50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC.
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(Susquehanna Steam Electric Station,
)
Units 1 and 2)
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SERVICE LIST Secretary of the Commission Dr. Judith H.
Johnsrud U.
S. Nuclear Regulatory Commission Co-Director Washington, D. C.
20555 Environmental Coalition on Nuclear Power Administrative Judge James P.
Gleason 433 Orlando Avenua 513 Gilmoure Drive State College, Pennsylvania 16801 Silver Spring, Maryland 20901 Susquehanna Environmental Advocates Mr. Glenn O.
Bright c,'o Gerald Schultz, Esquire Atomic Safety and Licensing Post Office Box 1560 Board Panel-Wilkes-Barre, Pennsylvania 18703 U.
S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Thomas J.
Halligan, Corresponde The Citizens Against Nuclear Danger Dr. Paul W.
Purdom Post Office Box 5 245 Gulph Hills Road Scranton, Pennsylvania 18501 Radnor, Pennsylvania 19087 Atomic Safety and Licensing Box 558 A, R.
D.
- 4 Board Panel Mt. Top, Pennsylvania 18707 U.'S. Nuclear Regulatory Commission Washington, D. C.
20555 Jessica H. Laverty, Esquire
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Office of the Executive Legal Docketing'and Service Section Director Office of the Secrett.ry,
U.
S. Nuclear Regulatory Commission U.S. Nucle _ar Regulatory. Comadssion Washington, D. C.
20555 Washington, D.C. 20555 w.
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Rob 6rt' W.>1dlere,'..Esifui. tie '
Mr. Thomas M. Gerusky, Director Department of Environmental Resources Bureau of Radiation Protection Ccmmonwealth of Pennsylvania Department of Envircnmental 505 Executive House Resources Post Office Box 2357 Commonwealth of Pennsylvania Harrisburg, Pennsylvania-17120 Post Office Box 2063 Jrf.e4 10. Cu,tchin,'..-'IV, J. Esquire Office of the Executive Legal Atomic Safety and Licensing Appea.'
Director Board Panel U.
S. Nuclear. Regulatory Commission U.
S.
Nuclear Regulatory Commissic Washington, D.
C.
20555 Washington, D.
C.
20555 DeWitt C.
Smith Director Pennsylvania Emergency Management Agency Transportation and Safety Building Harrisburg, Pennsylvania 17120 9
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