ML20033A919
| ML20033A919 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 11/25/1981 |
| From: | Rawson R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8111300161 | |
| Download: ML20033A919 (44) | |
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UNITED STATES OF Af1 ERICA Vx Vf fiUCLEAR REGULATORY COMt11SSION
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the flatter of
)
1 Docket Nos. 50-259, 50-260 an.1 50-296 TENNESSEE VALLEY AUTHORITY
)
(License amendment to permit onsite (Browns Ferry Nuclear Plant,
)
storage of low-level radioactive Unit Nos. 1, 2 and 3)
)
waste) t NRC STAFF BRIEF IN OPPOSITION TO PETITIONERS' APPEAL 0F THE DENIAL 0F INTERVENTION i
Richard J. Rawson Counsel for NRC Staff e
November 25, 1981 5
HIG"!.T"D CRIG7'!AL 8111300161 811125
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Certified Ey i
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PDR ADOCK 05000259
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G PDR O
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
l Docket Nos. 50-259, 50-260 and TENNESSEE VALLEY AUTHORITY 50-296
)
(License amendment to permit onsite (B rowns Ferry Nuclear Plant,
)
storage of low-level radioactive Unit Nos.1, 2 and 3)
)
waste)
NRC STAFF BRIEF IN OPPOSITION TO PETITIONERS' APPEAL OF THE DENIAL 0F INTERVENTION t
Richard J. Rawson Counsel for NRC Staff November 25, 1981
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i TABLE OF CONTENTS Page I.
I N T RO D UC T I O N............................................
1 II. STATEMENT OF TH E C AS E...................................
1 III. ISSUE PRESENTED ON APPEAL...............................
5 IV. ARGUt1ENT A.
A Petitioner for Intervention Must Present, Inter Alia, at least One Litigable Contention Before An Evidentiary Hearing Is Required.................
5 B.
Petitioners Fail To Present at least One Litigable Contention To Support Their Request for An Ev identia ry Hearing.............................
7 1.
C onten t i on 0 n e.................................
8 2.
C o n t e n t i o n Tw o.................................
15 3.
C on ten t i on Th re e...............................
16 4.
C o n t e n t i on F ou r................................
17 5.
C on ten ti on F i ve................................
18 6.
C on te n t i on S ix.................................
18 7.
C on ten t i on S eve n...............................
20 8.
C on te nt i on E ig h t...............................
22 9.
C on ten t i on N i ne................................
23 V.
C O NC L U S I O N..............................................
b ym.-
ii TABLE OF AUTHORITIES Page I.
JUDICIAL DECISIONS
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Kl eppe v. Sierra Cl ub, 427 U.S. 390 (1976)................
11 Minnesota v. NRC, 602 F.2d 412 (D.C. C ir. 1979)..........
12 II. NRC DECISIONS Alabama Power Com3any (Joseph M. Farley Nuclear Plant, Units 1 and 2), A _AB -182, 7 AEC 210 (1978)................
6-7, 10 Commonwealth Edison Compay (Zion Station, Units 1 and 2), ALAB -616, 12 NRC 419 ( 1980).......................
14 Detroit Edison Company (Enrico Fermi Atomic Power Plant, Un i ts 2 ), LB P-79-1, 9 NRC 73 (1979).......................
18 Duke Power Company (Amendment to Materials License SNM-1733 -- Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-651,14 NRC (1981)...................................
10-11 Gulf States U.lities Company (River Bend Station, Units 1 and 2), ALAB -183, 7 AEC 222 (1974)................
7 Houston Lighting and Power Com)any (Allens Creek Nuclear Generating Station, Unit 1), A.AB-590,11 NRC 542 (1980)..
6 Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-125,. 6 AEC 371 (1973).....
6 Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973).......
6 Niagara Mohawk Power Corporation (Nine Mile Point Nuclear Station, Unit 2), ALAB -264, 1 NRC 347 (1975)..............
7 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41(1978), aff'd in pertinent part and remanded on other grounds sub nom. Minnesota v. NRC, 602 F.2d 412 (D.C. Cir.
1979).....................................................
10-12, 24 Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-606, 12 NRC 156 ( 19 80 ).........................................
14
iii Page Pennsylvania Power & Light Company, et al. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291(1979)................................................
24 Philadelphia Electric Company, et al. (Peach Bottom Atanic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13 (1974)..
5-6, 16 Portland General Electric Company (Trojan Nuclear Pl an t), ALAB -534, 9 NRC 287 ( 19 79)........................
14 Project Management Corporation, et al. (Clinch River Breeder Plant), LBP-76-14, 3 NRC 430, modified on other g rou nd s, C LI-76-13, 4 NRC 67 ( 19 76).......................
8, 14, 18 Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC 253 (1978)....................................................
14 Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977)........
7 Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), CLI-778, 5 NRC 503 (1977)........
19 Tennessee Valley Authority (Phipps Bend Nuclear Plant, Uni ts 1 and 2), ALAB -506, 8 NRC 533 (1978)................
14, 18 III. REGULATIONS 10 C F R 9 2. 7 14............................................
5 10 C F R 5 2. 714 ( a ).........................................
5, 6 10 C F R s 2. 714 ( b ).........................................
5, 8, 15, 17, 19, 22 10 C F R S 2 0. 3 0 5...........................................
12, 14 10 C F R P a r t 3 0............................................
20-21, 23 10 C F R 9 3 0. 3 2............................................
21, 23 10 C F R Pa r t 5 0............................................
20-21, 23 10 C F R 9 5 0. 3 3 ( f )........................................
24 10 CFR 6 50.90...........
23
n.
IV Page IV. OTHER F ed. R. C i v. P. 12 ( b ) ( 6 )..................................
9 F ed. R. C i v. P. 12 ( c ).....................................
9-10 SECY-81-383 "St" rage of Low-Level Radioactive Wastes at P owe r Pl a nt s ( S EC Y-80-511 ) "...............................
12, 21 44 Fed. Reg. 61372(1979)................................
24 45 Fed. Reg.- 81697(1980).................................
2, 23 p
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STAFF 11/25/81 UtilTED STATES OF AltERICA NUCLEAR REGULATORY C0!!!!!SSION BEFORE THE ATOMIC SAFETY A!1D LICENSI!1G APPEAL BOARD In the Matter of
)
)
Docket Hos. 50-259,.50-260 and TENiiESSEE VALLEY AUTHORITY
)
50-296
)
(License amendment to permit onsite (Browns Ferry Nuclear Plant,
)
storage of low-lavel radioactive Unit Nos. 1, 2 and 3)
)
waste)
NRC STAFF BRIEF IN OPPOSITION TO PETITIONERS' APPEAL 0F THE DENIAL 0F INTERVENTION I.
INTRODUCTION On November 2,1981, petitioners by their attorney filed a brief
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appealing the Licensing Board's October 2,1981 Prehearing Conference Memorandum and Order which denied the several petitions to intervene.E The NRC Staff supports the Licensing Board's disposition of the petitions to intervene and requests for hearing.
II. STATEMENT OF CASE The Tennessee Valley Authority (TVA) on July 31, 1980 submitted an application for an amendment to its operating licenses for all three units of the Browns Ferry Nuclear Plant. The application sought permission to store low-level radioactive wastes generated by TVA at Browns Ferry on the Browns Ferry site for the life of the plant. On November 17, 1980, TVA amended its application to seek authorization
_1f Petitioners moved on October 19, 1981 for an extension of the time within which to file their appeal brief. By Order dated October 27, 1981, the Appeal Board directed that petitioners' appeal brief be filed by November 2 and that responsive briefs be filed by November 25, 1981.
^
. for onsite storage for a period of five years only. The NRC issued a Notice of Consideration of Amendments to Facility Operating Licenses with respect to TVA's application which was published in the Federal Register on December 11, 1980. 45 Fed. Reg. 81697(1980). The notice specified that a hearing could be requested with respect to the issuance of the amendments to the facilities' operating licenses for authority to store onsite for a period of five years the low-level waste generated from operation of the facilities.
Five timely petitions were filed by nineteer, individuals seeking intervention and requesting a hearing on the TVA amendment application.
These original petitions contained statements as to petitioners' proximity to B rowns Ferry, their interest in the amendment application, and alleged adverse affects of the requested amendment. TVA opposed the petitions on the grounds that petitioners lacked standing.2/ The Staff conceded standing but urged amendment of the petitions for clarification 1
of the aspects of the application as to which intervention was sought.2/
Counsel for petitioners entered appearances on March 26, 1981 and filed amended and supplemental petitions which included four 2/
Applicant's Reply To Petitions for Leave to Intervene and Requests for a Hearing, dated January 27, 1981.
3/
NRC Staff's Response to Petition for Leave to Intervene and Request for Hearing...., dated January 28, 1981. A similar pleading was filed in response to certain of the petitions on February 23, 1981.
9 contentions.S/ TVA opposed the admission of each of these contentions.E/
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The Staff did not oppose the admission of the first proferred contention at that time, but suggested that it raised only a legal issue which could be decided on the basis of briefs rather than an evidentiary hearing; the staff did oppose the remaining three contentions.5/
f After a prehearing conference on April _ 10, 1981, petitioners filed five additional contentions. / Both TVA8/ and the StaffE/ opposed these five additional contenticas on the grounds that they were inadmissible 4/
Amendment and Supplement to Petitions to Intervene of Intervenors, Noel M. Beck, Et A1., dated March 26, 1981.
5/
Applicant Tennessee Valley Authority's Response to Petitioners Noel M. Beck, Et A1., Amendment and Supplement of Petitions to Intervene, dd ed April 3,1981.
p/
NRC Staff Response to Intervenor's Supplemental Petition to, Intervene..., dated April 7,1981.
7/
Amended Contentions, dated April 27, 1981.
8/
Applicant Tennessee Valley Authority's Response to Petitioners' Noel M. Beck, Et Al., Second Amendment of Petitions to Intervene, dated May 8, 1981.
9/
Staff Answer in Opposition to Petitioners' Motion to File Additi'onal.
Contentions, dated May 15, 1981; Staff Answer in Response to Petitioners' Motion Proposing Admission of Five Additional Contentions, dated June 4,1981.
In its June 4,1981 Answer (at pp. 2-3), the Staff also informed the Licensing Board that the Staff would perform an environmental evaluation of life-of-plant storage and that the Staff, therefore, opposed contention one as well as the other eight contentions that were proffered.
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-, and impermissibly late.
Petitioners addressed the timeliness issue in a May 27, 1981 pleading.E On October 2,1981, the Licensing Board issued the Prehearing Conference itemorandum and Order which is the subject of the present appeal. Finding tt unnecessary to reach the issues of petitioners' standing and the timeliness of their last five contentions, the Licensing Board denied the admissionb of each of petitioners' nine contentions.I2/
As to petitioners' contention one, the Licensing Board held that only a legal issue was raised and the Board decided that issue adversely to petitioners. The remaining eight contentions were denied because they
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raised the same issue as contention one (contentions two, three, five, six, seven and eight), were too vague and nonspecific to be litigable a (content' ions four and nine), or raised matters beyond the scope of the proceeding (contentions four, five and nine).
Petitioners contend on appeal that eat.n of their nine contentions, including particularly the one which the Licensing Board treated as j
raising a legal issue only, present questions of fact which they are entitled to litigate in this proceeding.
In addition, petitioners
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dispute the Licensing Board's holding that certain matters are beyond the scope of the proceeding and they conter.d that the Licensing Board improperly
_10f Memorandum in Support of the Petitions of Noel it. Beck, Et A1., for Leave to Intervene, as Amended and Suppleiaented, dated May 27, 1981.
1_1f Although the order portion of the Licensing Board's decision at 18
' states that the petitions to intervene and requests for hearing are denied, the actual effect of the Licensing Board's decision has been to admit and dispose of one contention without the need for an evidentiary hearing.
I 12[ For the convenience of the Appeal Board, petitioners' nine contentions are attached as Appendix A.
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.,s considered evidence contrary to petitioners' contentions in ruling on their admissibility.
III.
ISSUE PRESENTED ON APPEAL The issue presented on appeal is:
llhether the Licensing Board correctly determined tnat no contention has been proffered raising & litigable issue requiring an evidentiary hearing.
IV. ARGUMENT A.
A Petitioner for Intervention 11ust Present, Inter Alia, at least One Litigable Contention Before An Evidentiary Hearing Is Required.
The prerequisites for intervention in NRC proceedings are set forth in 10 CFR 9 2.714. A written petition must be filed containing specified
' c information to permit evaluation of the petitioner's standing and a statement of the specific aspect or aspects of the proceeding as to which the petitioner Wishes tcEintervene.
10 CFR 9 2.714(a)(2). A supplement to the petition must then be filed which contains a list of the contentions petitioner seeks to have litiga+/ and a statement with d
' L3 reasonable specificity of the bases for each catention.
10 CFR
's 5 2.714(b). The purpose of the basis requirement is to establish
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sufficient foundation for the contention to warrant further inquiry of the subject matter in the particular proceeding and to put the other parties sufficiently, on notice of what they will have to defend against or oppose. ' Philadelphia Electric Company, et al. (Peach Bottom Atomic Power
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,_. I Station, Units 2 and 3), ALA3-216, 8 AEC 13, 20-21 (1974).
If a petitioner demonstrates standingE and has presented at least one litigable contention, intervention will be granted. Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 (1973).
In evaluating the sufficiency of a contention, it is not the Licensing Board's function to reach the merits of the proferred contention; admissibility requires only that the basis for the conter. tion be provided with reasonable specificity.
Houstor. Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 ItRC 542, 548 (1980); Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973). As the Appeal Board instructed in Alabama Power Company (Joseph M. Farley Nuclear Plant.
Units 1 and 2), ALAB-182, 7 AEC 210, 216-17 (1974), in assessing the acceptability o' a contention as a basis for granting intervention:
"[T]he intervention board's task is to determine, from a scrutiny of what appears within the four corners of the contention as stated, whether (1) the requisite specificity exists; (2) there has been an adequate delineation of the basis for the contention; and (3) the issue sought to be raised is cognizable in an individual licensing proceeding." (footnotes omitted)
If a contention meets these criteria and otherwise satisfies the requirements of 10 CFR 6 2.714(a), the contention provides a foundation for granting intervention " irrespective of whether resort to extrinsic 13] The Licensing Board assumed without deciding that petitioners have standing " based upon their residence in proximity to Browns Ferry."
Prehearing Conference Memorandum and Order at 5.
The Staff conceded petitioners' standing and finds no reason to address that subject further on this appeal.
__. evidence might establish the contention to be insubstantial." 7 AEC at 217. A licensing board in an operating license proceeding, however, "should take the utmost care to satisfy itself fully" that one good contention has been alleged before it permits the hearing mechanism to be triggered.
Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 at n.10 (1974).
B.
Petitioners Fail To Present at least One Litigable Contention to Support Their Request for An Evidentiary Hearing.
Petitioners submitted a total of nine contentions to the Licensing Board for litigation in this proceeding.E TVA and the Staff ultimately opposed the admission of all nine contentions on several grounds. The Staff submits that the Licensing Board correctly dismissed petitioners' contentions although with respect to certain contentions, the Staff would rely on grounds additional to those adopted by the Licensing Board.E The Staff's arguments with respect to each contention are presented serarately below.
14/ Four of these contentions were timely filed on March 26, 1981. Five more contentions were submitted on April 27, 1981. Both TVA and the Staff opposed the latter five contentions as impermissibly late.
The Licensing Board did not address the timeliness issue because it found contentions five through nine otherwise inadmissible.
Prehearing Conferenca Memorandum and Order at 13.
15/ The Appeal Board may base its decision on grounds other than those relied upon by the Licensing Board provided that the parties had sufficient opportunity to address those grounds.
Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2),
ALAB-422, 6 NRC 33, 42 (1977); Niagara Mohawk Power Corporation (Nine Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347, 354-57 (1975).
1.
Contention One Petitioners' first conMntion is the focus of their entire argument and provides the foundation for most of the remaining contentions. They allege that TVA has a plan for long-term onsite storage of low-tevel radioactive wastes at Browns Ferry, including volume reduction through incineration, and that TVA, by submitting only the first segment (for five-year storage) of this plan to t'RC for licer. sing at this time, is seeking incremental decisionmaking by NRC in violation of federal law.
TVA argued that contention one is not admissible because it is merely a legal contention,E that it is vague and that it attempts to raise matters not properly the subject of this licensing proceeding. The Staff initially supported the admissibility of contention one as a legal issue and suggested that a briefing schedule should be established for its disposition. Later, after deciding to broaden the scope of its review of the application to consider life-of-plant storage rather than merely five-year storage, the Staff argued that the contention was moot and opposed its admission.
16f TVA argued below that a contention raising only a legal issue is inadmissible. The Staff submits that the Commission's regulations do not preclude the admission of legal contentions. The section dealing with the admission of contentions,10 CFR 9 2.714(b), does not differentiate between " legal" and " factual" contentions. As the Staff suggested to the Licensing Board in this proceeding, legal contentions may be dealt with in a manner different than factual ones (ea, submission of briefs rather than initiation of evidentiary hearings). See Project Management Corporation, et al.
(Clinch River B reeder Plant), LBP-76-14, 3 NRC 430, 432 modified on other grounds, CLI-76-13, 4 NRC 67 (1976). However, a legal contention should not be dismissed on that ground alone, as TVA argues. Only the manner in which the contention is considered (by means of legal argument rather than evidentiary presentations) differs in the instance of a contention which raises legal, rather than factual, issues.
_g.
The Licensing
- its decision agreed with the Staff that ccntention one rai issue.
Prei:eari'g Conference fle:norandum and Order at 11. Ra.
.'n establishing a briefing schedule as the Stof had proposed, howsver, the Licensing Board proceeded to decide the legal issue adversely te petitioners based on the legal arguments presented by the petitioners, the Applicant, and the Staff.
Id.
Petitioners argue on appeal that contention one raised important factual questions, the existence of which precluded disposition of the contention at this stage.
The Staff submits that the Licensing Board did not err in deciding the legal issue presented by contention one at this stage of the proceeding. For the reasons discussed below, the issue was ripe for decision and the Licensing Board correctly decided the issue presented.
In addition, the result reached by the Licensing Board is supported by other legally sufficient grounds.
There is no need to trigger the entire adjudicatory hearing l
mechanism if a petitioner is not entitled to relief even assuming the facts to be as the petitioner alleges. Petitioners here recognize this in their appellate brief; their first argument asserts that NEPA imposes certain obligations on the NRC if a long-range plan exists and the proposed license amendments are a part of that plan.
If petitioners are incorrect in this assertion -- if the existence of the long-range plan does not bring those NERA obligations to bear here -- then petitioners' case fails,and may be disposed of at this time. The analysis is similar to that utilized in deciding a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim or a motion under y-------. - - - - -
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i Rule 12(c) for judgment on the pleadings:
assuming the truth of all E In well-pleaded allegations, would petitioners be entitled to relief?
this case, the answer to that question must be in the negative.
Petitioners allege in contention one that TVA has a long-range plan for the disposition and storage of low-level radioactive wastes at B rowns Ferry. They allep that this plan inc.ludes volume reduction and solidificatior thro 39h incineration, as well as storage of wastes onsite for the life of the plant. From these facts, petitioners draw a conclusion that HEPA requires an environmental review by NRC at this time of the entire TVA plan.
The leading Appeal Board decisions on the issue of how broad the NRC's environmental review of a proposed licensing action must be are Duke Power Company (Amendment to Materials License SNM-1733 -- Trans-portation of Spent Fuel from Oconee Nuclear Station for Stort.ge at
!!cGuire Nuclear Station), ALAB-651,14 NRC (August 10, 1981) and Northern States Power Company, et al. (Prairie Island Nuclear Generating Plant, Units 1 and 2), AI AB-455, 7 NRC 41 (1978), aff'd in pertinent part and remanded on other grounds sub nom. Minnesota v. NRC, 602 F.2d 412 (D.C. C ir. 1979).
In Duke Power Company, the Appeal Board held that when the first portion of a segmented plan is put before the NRC for licensing action:
"[T]he agency may confine its scrutiny to the portion of the plan for which approval is sought so M as (1) that portion has 1_7] See Mabama Pcwer Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-192, 7 AEC 210, 217 (1974). Because the truth of petitioners' ailegations is assumed, there is no need to address petitioners' argument that the Licensing Board improperly considered evidence contrary to those allegations.
independent utilicy; and (2) as a result, the approval does not foreclose the agency from later withholding approval of subsequent portions of the overall plan." (emphasis in original) 14 NRC at
. Slip Op. at 9.
The Prairie Island case, relying on Kleppe v. Sierra Club, 427 U.S.
390 (1976), held that the environmental assessment of a proposed federal action may be confined to the action "together with, inter alia, its unavoidable consequences." 7 NRC at 48 (emphasis in original).E Neither Duke Power Company nor Prairie Island support the claim which petitioners attempt to state in their contention one. M suming that the alleged plan exists, Duke Power Company penaits a segmented environmental analysis if the segment presented has independent utility and will not prejudice future agency decisionmaking.E Petitioners do not allege that five-year storage lacks utility independent of the remainder of the alleged plan. To the contrary, they conceded at the prehearing conference that short-term storage has independent utility.
Pre. Tr. at 46-47. Neither do petitioners allege that NRC spproval of the present application will prejudice NRC evaluation of subsequent portions of any overall plan. There is nothing al'out a five-year 18f The Licensing Board found Prairie Island "more on point with this case" than Duke Power Company.
Prehearing Conference Memorandum and Order at 9.
The Staff submits that both cases are ap,nlicable.
19] Petitioners have misinterpreted the holding in Duke Power Company.
They cite that portion of the opinion which distinguished between a segmented federal plan and a segmented non-federal plan for NEPA review purposes (14 NRC at
, Slip op. at 8; and conclude that.
ince TVA is a feoeral agency, the entire allegsd plan must be r,
iew'ed at this time.
Petitioners' B rief on Appeal... at 4-5.
T.'s lcrig-term plans have been reviewed -- by TVA as NEPA requires of TVA. See note 23, infra.
Duke Power Company imposes no blanket obligations on the NRC to evaluate TVA's long-tenn plans simply because TVA is a federal agency. Rather, the NRC 's duty under NEPA is stated clearly in the language of the Appeal Board quoted above.
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authorization that forecloses the agency from denying later applications for life-of-plant storage or incineration.E As the Staff pointed out to the Licensing Board, five years is the ordinary term for byproduct.
source and special nuclear material licenses.E Prairie Island similarly imposes no obligation on the NRC even under petitioners' alleged facts.
Petitioners identify no consequence of granting five-year storage authorization which will be unavoidable, nor do they allege why the impacts of any subsequent portion of the alleged plan cannot be adequately addressed when authorization for subsequent portions is sought. See tiinnesota v. NRC, 602 F.2d 412, 416 n.5 (D.C. C ir.1979).
In sum, the Licensing Board correctly disposed of the legal issue presented by petitioners' contention one.
Even assuming the truth of petitioners' factual allegations, the legal conclusion they assert is not supportable.
A second, independent ground exists for upholding the Licensing Board's disposition of contention one. The Staff submits that contention one is rendered moot by the Staff's decision to conduct an environmental review of life-of-plant storage, and any portion of the contention not rendered moot is beyond the jurisdiction of the Licensing Board and, indeed, of the Commission itself.
2y Both life-cf-plant onsite storage of low-level wastes and incine' ration would require seprate licenses or license amendments.
See SECY-81-383 " Storage of Lwlevel Radioactive Wastes at Power Reactor Sites (SECY-80-511)" and 10 CFR s 20.305.
2_1f Staff Answer In Response To Petitioners' liotion Proposing Admission of Five Additional Contentions, dated June 4,1981, at 5 n.6.
Contention one identifies three aspects to what petitioners allege in contention one is TVA's " total onsite LLRW storage and treatment pl ans. " These are:
(1) five-year storage of unincinerated waste; (2) life-of-plant storage of both incinerated and unincinerated waste; and (3) incineration (also termed " volume reduction and solidification").
The original TVA application sought authorization for the first two of these three items. TVA later amended its application so that the only authorization being sought was for five-year storage of unincinerated waste. At no time has TVA's application sought authorization to incinerate low-level radioactive wastes.
At the prehearing conference of April 10, 1981, counsel for petitioners conceded on the record that "[t]he petition to intervene does not raise any complaints regarding the 5-year storage aspects." Pre. Tr.
at 82. Rather, it is TVA's alleged long-range " plan" that petitioners contend will not receive adequate review by the NRC at this time. In particular, according to petitioners' counsel, " incineration is the heart of what our clients fear and have concern about." Pre. Tr. at 13.
The incineration issue raised in contentien one (and in several other contentions as well) was properly resolved by the Licensing Board, which held that matters (such as incineration) considered in TVA's l
l 4
environaental assessment but not tSe subject of licensing requests to NRC are outside NRC's jurisdiction.E Prehearing Conference lemorandum and
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Order at 13-14. Commission regulation would require TVA to seek NRC approval before incinerating low-level radioactive waste material.
10 CFR $ 20.305. TVA, however, has not asked the Commission for authority to reduce and solidify LLRW through incineration.
Thus, there is no federal action by NFO with respect to incineration of LLRW at Browns Ferry and NEPA imposes no obligation on N;'^ at this time with regard to incineration.E See _ Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-606,1214RC 156, 161-63 (1980).
Removing the incineration issue from contention one leaves only the allegation that life-of-plant storage onsite will not receive environmental review from the NRC at this time.
That allegatica, 2_2/
A_ fortiori, such matters are also beyond the jurisdiction of the Licensing Board, which is limited by the Commission's notice of hearing. See Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616,12 NRC 419, 426 (1930';; Portland General Electric Company (Trojan Nuclea-Plant), ALAB-534, 9 NRC 287, 289-90 at n. 6 (1979).
23/ To the extent that petitioners' contentions seek to litigate in this proceeding the adequacy of TVA's compliance with NEPA (and petitioners' appeal brief states flatly on page 2 that their basic position is that "the failure of the Tennessee Valley Authority to include their entire plan within their environmental assessment constituted illegal segmentation"), that effort must be rebuffed.
TVA is a federal agency with independent NEPA responsibilities.
See, e.g., Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-506, 8 NRC 533 (1978). Challenges to TVA's environmental evaluation of matters not before the NRC for licensing must b'e mounted in the federal courts.
See Project Management
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Cceporation, et al. (Clinch River B reeder 71 ant), LBP-76-14, 314RC 430, 433, modified on other grounds, CLI-76-13, 4 NRC 67 (1976);
Detroit Edison Compaiiy (Enrico Fermi Atomic Power Plant, Unit 2),
LBP-79-1, 9 NRC 73, 85 (1979) (citing Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-493, 8 NRC 253 (1978)).
however, has no basis in light of the Staff's decision to conduct an environmental assessment which will cover net only the environmental impacts of five-year LLRW storage but also those associated with the life-of-plant term originally requested by TVA.2y Petitioners argued at the prehearing conference that they were not seeking to force TVA to apply f2r authorization that it did not want.
Pre. Tr. at 79.
Petitioners' concern was to ensure that the impacts of the total plan be considered. The Staff's decision to evaluate the environmental impacts of life-of-plant storage allays that concern and eliminates any possible basis for contention one.
2.
Contention Two Petitioners allege in contention two that the data submitted by TVA is inadequate for the NRC to conduct the required environmental impact assessment of TVA's overall plan. The Licensing Board denied the admission of this contention "for the same reasons as contention ene."
Prehearing Conference Memorandum and Order at 12. The Staff believes that contention two was correctly rejected by the Licensing Board; however, the staff submits that this result may also be upheld for reasons different than those relied upon by the Licensing Board.
The Staff maintained before the Licensing Board, and continues to maintain, that contention two is overly vague and fails to give sufficient notice as to what is to be litigated. Ur. der 10 CFR 6 2.714(b),
23 The reasons for that Staff decision are discussed at length at pages 3-5 of'the "taff Answer in Response to Petitioners' Motion Proposing Admission of Five Additional Contentions, dated June 4,1981.
a
' the basis for a contention must be set forth with " reasonable specificity."
Petitioners' contention two is a conclusory allegation which fails to state which data submitted by TVA is alleged to be " inadequate" and fails to state in what ways the data is allegedly " inadequate".
In the absence of reasonable specificity properly alerting the parties as to what they must defend against or opposeb, the contention mustbedismissed.E 3.
Contention Three Contention three alleges that licensing of TVA's overall plan, including on-site storage beyond five years and incineration, is a major federal action significantly affecting the quality of the human ensiranment.
Petitioners allege that no part of this plan may be licensed without the issuance of an environmental impact statement by the NR., The Licensing Board denied this contention, as it had contention two, "for the same reasons as contention one."
Prehearing Conference Memorandum and Order at 12.
Contention three is concerned only with an alleged long-term plan of TVA and not with the instant application for low-level waste storage for 25/ Philadelphia Electric Company, supra, 8 AEC at 20 (1974).
26/ To the extent that this and all other contentions seek to challenge matters not before the NRC for licensing action (i.e.,
incineration), they must be rejected for the reasons given in the Staff's discussion of contention one at pages 13-14.
a period of five years. Whether or not TVA's long-term plans would be
" major Commission action" when submitted, the five-year application is the only subject of this proceeding. Matters considered in TVA's environmental assessment but not the subject of licensing requests are outside NRC's jurisdiction for the reasons discussed at pages 13-14, supra.
Further, insofar as contention three alleges that long-tenn storage onsite (rather than incineration) must be evaluated, it has been rendered moot by the Staff's decision to review and evaluate the environmental effects of life-of-plant storage.
4.
Contention Four Petitioners allege in contention four that the data submitted by TVA is inadequate for the NRC to conduct the required health and safety review of TVA's overall plan. The Licensing Board rejected this contention both because of its vagueness and because it raised matters beyond the five-year application before the NRC. The Staff supports the denial of this contention for the reasons given by the Licensing Board.
As in contention two, petitioners' contention four contains only a conclusory allegation without stating which data submitted by TVA is
" inadequate" and in what ways the data is allegedly " inadequate." The contention lacks that statement of basis and reasonable specificity required by 10 CFR 9 2.714(b) and its rejection by the Licensing Board should be upheld.
l
. 5.
Contention Five Petitioners allege in contention five that the overall TVA plan requires the issuance of an environmental impact statement by, TVA. They allege that the " negative declaration" issued by TVA was erroneous.
TVA and the Staff argued, and the Licensing Board agreed, that contention five must be rejected as raising matters beyond the scope of NRC jurisdiction. As discussed earlier, TVA is a federal agency with independent HEPA responsibilities. See, e.g., Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-506, 8 NRC 533 (1978).
TVA's environmental review under NEPA is separate from the NRC's independent obligations under NEPA in relation to the licensing action now before the NRC. See 10 CFR 9 51.5 et seg. A challenge to TVA's environmental evaluation of matters not before the NRC for licensing is beyond the scope of an NRC adjudicatory proceeding.
See Project Management C orporation, et al. (Clinch River B reeder Plant), LBP-76-14, 3 NRC 430, 433, modified on other grounds, CLI-76-13, 4 NRC 67 (1976); Detroit Edison Company (Enrico Fermi Atomic Frwer Plant, Unit 2), LBP-79-1, 9 NRC 73, 85 (1979).
6.
Contention Six Contention six alleges that TVA's low-level radioactive waste management plan, including incineration, is a major federal action significantly affecting the quality of the human environment within the meaning of,NEPA. It contains no allegation concerning the NRC or NRC action. The Staff opposed admission of contention six on the grounds, inter alia, that it is concerned only with incineration and therefore i
presents matters beyond the scope of the instant proceeding, and that, even if within the scope of the instant proceeding, it is too vague to be admissible. The Licensing Board denied admission of the contention "for the same reascns as contention one." Prthearing Conference Memorandum and Order at 14.
The Staff submits that contention six is inadmissible for the reasons given in the preceding discussion of contention five. Assuming that the matters alleged are true, TVA has its own responsibilities as a federal agency to comply with NEPA. Insofar as the NRC is concerned, however, TVA's planning is private action until a proposal is presented to HRC for licensing action. See Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 541 (1977).
And, in any event, the Staff is conducting an environmental review of the life-of-plant impacts of the onsite retention.
In addition, contention six fails to satisfy the specificity and basis requirements of 10 CFR 6 2.714(b). Subpart (a) fails to state how or in what amounts radioactive pollutants will be emitted by the alleged volume reduction and incineration system and provides no basis of any sort for the allegation that there will be emissions.
Subpart (b) fails to say how, why or to what extent the effectiveness of filters has been overstated and similarly provides no basis for the allegations. Subpart (c) provides no basis for the statement that the technology for e
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7.
Contention Seven Petitioners allege in contention seven that TVA's pending application is defective because it is subject to the licensing provisions of 10 CFR Part 30 (rather than 10 CFR Part 50). The Staff opposed this contention on the ground that it fails to raise a litigable issue and lacks reasonable specificity. The Licensing Board, analyzing the incorporation by reference of contention five, found in contention seven an allegation that the entire TVA plan should have been submitted under 10 CFR Part 30. Because under this construction of the contention 27/ From petitioners' Amended Contentions, dated April 27, 1981, subparts (d), (e), (f), and (g) state:
"(d) TVA intends to utilize VRS for the life of BFNP.
(e) The VRS for BFNP will be cited as precedent for future LLRW proposal s.
(f) TVA has understated the direct costs of its VRS proposal.
(g) Cpnstruction of the VRS housing facility is scheduled to begin
~
in 1981."
4 ?
- there is a need to consider matters beyond the present five-year application, the Licensing Board denied the contention for the same reasons as it rejected contention one.
The Staff prefers to rely on its original position -in opposing 'the adaission of ccntention seven.
It is the Staff's position that an applicant,nay apply for authority to retain low-level wastes onsite as part of its facility l'icense (Part 50) or as a separate byproduct license (Part 30) and that the Staff may, for the administrative convenience of the Commission, treat applications for modification of the facility license authority for such purpose as an application for separate authority under Part 30. See SECY-81-383 " Storage of Low-Level Radioactive Wastes at Power Reactor Sites (SECY-80-511)."
In the absence of an allegation that petitioners have an interest which is 4
adversely affected by a possible decision to treat the TVA application as an application for a change to the facility license, this contention should be rejected as raising an issue that is simply immaterial.
Petitioners have failed to identify any way in which they may be affected by TVA's having fil2d this application as one to modify its facility license under Part 50 rather than as one seeking separate authority under Part 30 and the Staff is unaware of any effects on petitioners in this regard. Further, contention seven fails to state in what respect Part 30 procedures have not been followed,E nor does i
it identify the effects, if any, of any such noncompliance. As such, 2y Petitioners cite 10 CFR S 30.32 as applicable to TVA's application.
As noted in the Staff's response to the submission of these contentions, the Staff is assessing as a part of its review whether-the provisions of 10 CFR 9 30.32(f) are or should be applicable to the TVA application.
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n-the contention fails to provide that reasonable specificity required by 10 CFR 6 2.714(b).
8.
Contention Eight Petitioners allege that TVA's November 17, 1980 amenduent of its license amendment application was made for the impropor purpose of avoiding consideration of the cumulative impacts of its overall plan and should not be recognized for purposes of HRC's environmental evaluation.
In light of the Staff's decision to evaluate the environmental impact of the life-of-plant storage onsite, the Staff opposed this contention as moot. The Licensing Board reaffirmed its holding that "NRC consideration of the overall plan is unnecessary" and denied the admission of contention eight.
The Staff submits that contention eight was correctly denied admission, but again offers grounds in addition to those adopted by the Licensing Board.
First, petitioners' only stated concern -- that the NRC review will be narrower because of the TVA application amendment
-- is eliminated by the Staff decision to conduct a review of life-of-plant rather than five-year storage onsite.
In effect, there is no longer any basis for the contention.
Second, the motivation of TVA in amending its application is not relevant to any issue cognizable in this proceeding. Third, petitioners' statement that "TVA should not be permitted to proceed with its licensing plans pending completion" of a reassessment of its own environmental assessment raises no litigable issue, since the validity of TVA's environmental assessment of matters not before the NRC for licensing is beyond the scope of an NRC adjudicatory proceeding.
b 9.
Contention Nine Contention nine states in full:
"The environmental impacts of TVA's proposal for five year LLRW storage, if considered without regard to the rest of its LLRW management plan, are not adequately discussed in the EA in the attachments to TVA's main application dated July 31, 1980 because there is a failure to consider the costs of deconmissioning of the storage modules or other long tenn disposition of the LLRW at the conclusion of the five year storage."
In rejecting this contention, the Licensing Board held that the adequhcy of TVA's environmental assessment is outside the Licensing Board's jurisdiction and that the contention is too vague to be admitted.
The Staff agrees that contention nine was properly rejected for the reasons provided by the Licensing Board.
In addition, the Staff submits that contention nine is inadmissible because it represents an impemissible challenge to the Commission's regulations.
As stated in the Federal Register notice issued after the Staff's receipt of the instant application (45 Fed. Reg. 81697(1980)),if favorable findings are made, the Staff may issue either a separate license under 10 CFR Part 30 or amend Applicant's operating license under 10 CFR Part 50. The contents of TVA's application are thus governed either by 10 CFR 9 30.32 or 10 CFR $ 50.90. Neither of these sections requires submission of the information specified by petitioners.
Even if the instant application were an application for a construction permit or an operating license for a power reactor, TVA would not be required to submit in its application the cost of decommissioning the facility. An application for a production or utilization facility need only contain information sufficient to demonstrate to the Commission that the applicant possesses or has reasonable assurance of obtaining the funds necessary to cover the estimated cost of permanently shutting the facility down and maintaining it in a safe conditice.
10 CFR $ 50.33(f).
Further, purse:nt to Comission decision, the availability of ultimate disposal sites for radioactive wastes is not litigable in an individual adjudicatory proceeding.
" Storage and Disposal of fluclear Waste," 44 Fed. Reg. 61372-74 (October 25,1979); see Northern States Power Company, supra, 7 NRC at 49-51 (1978) (high-level waste);
Pennsylvania Power & Light Company, et al. (Susquehanna Steam Electric Station, Unit:,1 and 2), LBP-79-6, 9 NRC 291, 317 (1979) (low-level waste).
Thus, petitiorf.s' assertions in contention nine call for consideration of matters (decommissioning) beyond what the Commission's regulations would require and for the litigation of matters (ultimate disposal of radioactive wastes) which are not to be litigated in individual licensing proceedings.
In view of this, the Licensing Board's rejection of contention nine was correct.
V.
C0fCLUSION For the foregoing reasons, the Staff submits that all nine of the contentions proferred were justifiably rejected and that the petitions to intervene and request for adjudicatory hearing were properly denied by the Licensing Board. The Licensing Board's decision should be upheld.
Respectfully submitted, Ah
^
f Richard J. Fawson Counsel for NRC Staff Dated at Bethesda, Maryland this 25th day of November,1981
l Appendix A CONTENTION NO. 1 i
i The Board should deny the application for license amendment because TVA, by boeking only authority for five years' storage of low level radioactive waste /(LLRW) on s it'e
/
j is seeking incremental decision making on its onsite LLRW stora7e and management plans, in violation of Federal law.
Incineration of LLRW is planned to begin in 19 85 as part of TVA's volumn reduction and solidification system (VRS) for long-term onsite LLRW storage at Browns Ferry Nuclear Plant (BFNP), as stated in TVA's Environmental Assessment dated 2/28/80, and in enclosure 4 to TVA's July 31, 1980 license amendment application.
TVA has already begun to implement its plans to incinerate LLRW at Browns Ferry Nuclear Plant (BFNP).
i Incineration is not only planned, it is an integral part of l
the LLRW storage for which TVA seeks approval in its pending license.
The ngaber of storage modules is limited to 22 and TVA plans to construct fewer than that.
Each module is expected to hold approximately one year's LLRW.
Transfer of combustible LLRW from storage module to incinerator, with l
the residue going back to storage, is a continuing process in TVA's plan.
2 A_1 l
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TVA obtained approval fo r two inars ' onsite storage of LLRW by license amendments issued March 17, 1980, then applied for life of plant onsite storage on July 31, 1980, then cut that to five years' storage by amended application on November 17, 198 0, and has indicated to the Commission that an incineration application may be submitted n 1981 (dais year).
Consideration of the onsite storage impacts, ignoring incineration, are thus to be limited in the present proceeding to a period of five years.
TVA's piecemeal approach to the LLRW storage licensing process is designed to avoid and evade the requirements of the National Environmental Protection Act of 1969 (NEPA) and the implementing Commission regulations, by obtaining incremental approval of onsite LLRW storage without submitting an Environmental Report to the Commission and without the issuance of an Environmental Impact Statement (EIS) by the Commission on TVA's total LLRW management plan.
NEPA requires that this Board consider TVA's application for license amendments to permit onsite LLRW storage for five years as an integral part of its total onsite LLRW storage and treatment plans, ircluding in cin-eration.
Therefore, the pending application should be denied or, in the alternative, further proceedings thereon should be continued.for a reasonable time to permit the filing of an amended application and the consideration of TVA's total plan for LLRW storage and management in a single integrated proceeding.
A-2
CONTENTION NO. 2 The data submitted by TVA in suppor,t of the pending applicacion for license amendment e.re inadequate for the environmental impact assessment which the Commission is required to make of TVA's integrated long-term LLRW storage plans, including construction and operation of its planned VRS facility as an integral part the ren f.
Intervenors adopt and incorporate herein by reference the contents of contention number one, excluding the first paragraph thereof, i
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CONTENTION NO. 3 The licensing of TVA's planned long-perm onsite storage of LLRW, including the construction and operation of its planned VRS facilities and system as an integral part
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thereof, is a major Commission action significantly affecting the quality of the human environment within the meaning of 10 CFR Section Sl.5 (a).
It will authorize a significant change in the types or a significant increa se in the amounts of effluents from BFNF, within the meaning of 10 CFR Ccction 51.5 (b).
No part of this long-term plan may be licensed without the issuance of an EIS by the Commission.
Intervenors a lopt and incorporate herein by reference the contents of contention number one, excluding the first paragraph thereof.
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A-4
CONTENTi.ON NO. 4
- _ - =
The data submitted by TVA Ln support of the pending application for license amendment are ina.iogha te for the radioactive health and safety review which the Commission is required to make of TVA's in tegra ted long-term onsite LLRW storage plans, including construction and operation of its planned VRS facility as an integral part thereof. to TVn's July 31l 1980 license amend-mont application does not prcvide information on the specifications of the VRS facility or the health ef fect:5 of its operation, although it asserts that without the system "(o)perating costs and the potential for health effects will increase substantially."
Encl. 4 at page 9.
As with the environmental impact assessment, a
safety review of the storage and VRS systems should be made together.
A-5
3 CONTENTION NO. 5 TVA 's Environmental Assessment dated February 28, 1980, states, in part:
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"It is the purpose of this Environmental Assessment (EA) ?o consider the potential environmental impacts of the proposed low-level radioactive waste (LLRW) management plans for Browns Ferry Nuclear Plant (BFNP).
TVA's proposed LLRW management plan is three-fold.
It consists of (1) implementing the establishment of temporary LLRW 6torage areas, (2) installing equipment designed for volume reduction and solidification of LLRW, and (3) constructing facilities designed to safely store the LLRW generated at BFNP for the remaining operational life of the plant.
Although each segment of the LLRW management plan could be implemented independently, each is an integral part of the proposal for BFNP and all will be considered together as a single action for the purposes of this document.
This EA considers the potential l'
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environmental effects of TVA's LLRW-
. management plan for BFNP."
(EA page 1)
J The TVA Board of Directors has committed TVA to the installation of VRS as an integral part of its LLRW management l
plan for BFNP.
On March 6, 1980 the Board appecved a project authorization for S71 million for storage and volume reduction at BFNP.
The proposed schedule is for procurement and construction i
of the VRS to be completed in 1985 (Memorandum dated March 14, 1980 from M.
R.
Calhoun, TVA Director of Nuclear Power, to various persons).
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"TVA proposes to install a VRS for BFNP.
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The VRS will ba inYal_ led to markedly expand the storage capabilitiep,of the OSF,.
The VRS is designed to_ incinerate resins and combustible trash..( ~.
(EA, page 11)
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" Volume reduction and bolidification systems are an emerging technology.
(EA, page 12)
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i "The VRS to be installed at BFNP/will be one that is commercially available.
The volume reduction building will be, sized to acconcodate any of the commercially available volume reduction / solidification systems.
No s
significant'iy improv,ed designs could be for-mulated, developed, and manufactured in a time frame that can support TVA's needs.
An alter-native VRS design.that cannot meet TVA's
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schedule requirements is therefore an un-1 acceptable alternati've.>' The particular VRS that will be installed at the BFNP has not been determined.
However, the analysis of the potential environmental impacts of the VRS made in this EA are conservative and any system ultimate 1Y selected will have no greater. environmental impacts than those c
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desribed herein.
The OSF described in this EA wil'l mehc all
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the design re'quirements listed herein'and provide safe ' Storage of LLRW for the fors'aeable future.
Alternative designs tio meet TVA's storage needs 'would not be available on a timely bas'is,,and are therefore determined to be unacceptable alteinativ's to y,
the proposed action."
(EA,~page 14).
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Petitio ers contend that TVAs waste management
,'t proposals for BFNP'70st be considered together and that, they.
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constitute a proposal for it.ajor Federal action signi ficantly
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Therefore, TVA's
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s t a t err en t, dated April 1, 1980, was erroneous.
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d Petitioners adopt and incorporate herein by reference j
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the contents of their contention number one, excluding the first y
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CONTENTION NO. 6 TVA 's LLRW management plan for BFNP constitutes a proposal for major Federal action significantly affecting the quality of the human environment within the meaning of NEPA, S102(2)(c) and 10 CFR 551.l(a) for the reasons stated in Contention No. 5 and further because:
i (a)
The proposed VRS will emit radioactive pollutants which will cause cancer and birth defects to the human population in the area in which Intervenors live, and which,could be avoided by not including VRS as a part of the plan.
( b)
TVA has overstated the effectivencss of the filters-
- which are intended to filter out the radioactive emmissions from the VRS.
(c)
VPS technology is untested and unproved in the incineration of radioactive waste.
(d)
TVA intends to utilize VRS for the life of BFNP.
(e)
The VRS for BFNP will be cited as a precedent for future LLRW proposals.
(f)
TVA has understated the direct costs of its VRS proposal.
a (g)- Construction of the VRS housing facility is scheduled to begin in 1981.
(Letter dated July 22, 1980 from L.M.
Mills, TVA !!anager of Nuclear Regulation and Safety, to Dr.
W.
Emmett Barkley, N.I.H.)
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CONTENTION NO. 7 TVA's pending application for LLRW storage is defective because TVA's LLRW management plan is a proposal for a facility for byproduct material which is subject to the licensing provf.sions of 10 CFR part 30, and especially 10 CFR 530.32, governing applications for specific licenses for activity which will significantly affect the quality of the human environment, and the procedures required by 10 CFR Part 30 have not been followed.
Intervenors adopt and-incorporate by reference the pro-visions of their Contention No. 5.
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9 A-10
CONTENTION NO. 8 TVA 's November 17, 1980 amendment of its license amend-ment application, to change from licensing LLRW storage from life of plant to only 5 years should not be recognized for purposes for evaluating the environmental impacts of the proposed action because the November 17, 1980 amendment was filed for the express and inproper purpose of avoiding consideration of the cumulative impacts of TVA's LLRW management plan, and to avoid other licensing requirements incident to consideration of that plan.
This is indicated by:
(a) the reasons stated for the amended application in TVA's amendment dated November 17, 1980.
(b)
NRC staff has indicated the LLRW system is subject to licensing under 10 CPR Part 30.
(Memorandum dated July 23, 1980 from Harold R. Denton to the NRC commissioners).
(c)
TVA is in the process of re-evaluating its LLRW EA for BFNP to assess the environmental impacts of alternatives to its LLRW manager.ent plan because of TVA staff concerns about the adequacy of the EA.
(Memorandu,m dated December 4, 1960 from W.M.
l Pearse, TVA Chemical Engineer, to M.E. Branch Files on meeting held November 17, 1980).
TVA should not be permitted to proceed with its lJcensing plans pending completion of this reassessment.
A-11 l
l L
CONTENTION NO. 9 i
The environmental impacts of TVA 's' proposal for five year LLRW storage, if considered without regard to the rest of its LLRW management plan, are not adequately discussed in the EA or the attachments to TVA's main application dated July 31, 1980 because there is a failure to consider the costs of decommis-sioning of the storage modules or other long term disposition of the LLRW at the conclusion of the five year storage.
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A-12 9
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0iVilSSION BEFORE THE AT0'ilC SAFETY AND LICENSING APPEAL BOARD 8
t In the Matter of
)
)
Docket Nos. 50-259, 50-260 and TENNESSEE VALLEY AUTHORITY
)
50-296
)
(License amendment to permit onsite (Browns Ferry Neclear Plant,
)
storage of low level radioactive Unit Nos. 1, 2 and 3)
)
waste)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN OPPOSITION TO PETITIONERS' ADPEAL OF THE DENIAL OF INTERVENTION" 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, by deposit in the Nuclear Regulatory Commission's internal mail system, this 25th day of November,1981:
- Stephen F. Eilperin, Chaiman Dr. Quentin J. Stober Atomic Safety & Licensing Appeal Board Administrative Judge U.S. Nuclear Regulatory Commission Fisheries Research Institute Washington, D. C.
20555 University of Washington Seattle, Washington 98195
- Dr. John H. Buck Atomic Safety & Licensing Appeal Board Mr. Ron Rogers U.S. Nuclear Regulatory Commission Tennessee Valley Authority Washington, D. C.
20555 400 Chestnut Street, Tower II Chattanooga, Tennessee 37401
- Gary J. Edles l
Atomic Safety & Licensing Appeal Board H.S. Sanger, Jr., Esq.
U.S. Nuclear Regulatory Commission General Counsel Washington, D. C.
20555 Tennessee Valley Authority 400 Commerce Avenue
- John H. Frye, III, Chairman 311B 33C Administrative Judge Knoxville, Tennessee 37902 i
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mr. Richard L. Freeman Washington, D. C.
20555 429 Calhoun Drive Florence, Alabama 35630 t
Mrs. Elizabeth B. Johnson l
Administrative Judge Mr. John Hartin
~
Oak Ridge National Leboratory Route 1. Box 949 P.O. Box X Building 3500 Sheffield, Alabama 33660 Oak Ridge, Tennessee 37830 Mr'.' Robert W. Beck P. O. Box K Florence, Alabama 35631 i
. ~.
Mr. Gregory Tobe t Brough Mr. Thomas Wayne Paul 1726 McCullough Avenue 1120 Pratt Avenue Huntsville, ' Alabama 35801 Huntsville, Alabama 35301
~
Mr. Michael D. Pierson Mr. Richard W. Jobe 736 Lily Plagg Road S.E.
1134 Halsey Avenue Huntsville, Alabama 35602 Huntsville, Alabama 35801 Mr. David Ely Ms. Marjorte L. Hall 1500 Sparkman Drive 1134 Halsey Avenue Apartment 6G Huntsville, Alabama 35801 Huntsville, Alabama 35805 Ms. Debbie Havas 517 0'Shaughnessy Huntsville, Alabama 35801 Ms. Uvonna J. Curott I,eroy J. Ellis, III, Esq.
1201 Ingleside Or.er, Ellis, Brabson, McNutt, Florence, Alabama 35630 Stephenson and Tomlin 421 Charlotte Avenue Ms. Nancy Muse Nashville, Tennessee 37219 205 Edgewood Drive Florence, Alabama 35630 Robert B. Pyle, Esq.
P.O. Box 16160 Ms. Alice N. Colcock chattanooga, Tennessee 37436 305 Mitchell Court Sheffield, Alabama 35660 Ms. Noel M. Beck 426 North Wood Florence, Alabama 35630 Atomic Safety & Licensing Board Panel Mrs. Betty Martin U.S. Nuclear Regualtory Commission Route 1 Box 949 liashington, D. C.
20555 Sheffield, Alabama 35660 Atomic Safety & Licensing Appeal l
Board Panel U.S. Nuclear Regulatory Commission liashington, D. C.
20555 Docketing and Service Section l
U.S. Nuclear Regulatory Commission liashington, Di.C.
20555
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~ ' Richard J Rowson Counsel for NRC Staff
-