ML20035F597
| ML20035F597 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 04/14/1993 |
| From: | Lisa Clark, Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#293-13882 OLA-2, NUDOCS 9304220069 | |
| Download: ML20035F597 (23) | |
Text
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.3 JMcL April.14,1993 c. t.:
c, h t i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 93 tm 14 P 4 :45 i
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD.
i >.
l In the Matter of
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Docket Nos.
50-275 OLA, PACIFIC GAS & ELECTRIC CO.
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50-323 OLA j
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(Diablo Canyon Nuclear Power Pla r,
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(Construction Period Recapture)
Units 1 & 2)
)
l NRC STAFF'S RESPONSE TO SAN LUIS OBISPO MOTHERS FOR PEACE FIRST LATE-FILED CONTENTION INTRODUCTION On March 12, 1993, the San Luis Obispo Mothers for Peace (SLOMP) filed a 1
l late-filed contention challenging the NRC's Environmental Assessment and Finding of No l
Significant Impact, issued February 3,1993.
The Staff's response, opposing the admission of SLOMP's late-filed contention, is set forth below.
BACKGROUND On July 22,1992, the Nuclear Regulatory Commission (NRC) published in the Federal Register a " Notice of Consideration of Issuance of Amendment to Facility Operating License and Proposed No Significant Hazards Consideration Determination and l
Opportunity for Hearing,57 Fed. Reg. 32,571, regarding PG&E's application to change the expiration date of the Diablo Canyon Nuclear Power Plant, Unit 1, operating license I
l from April 23, 2008, to September 22,2021, and to change the expiration date of the l
Unit 2 license from December 9, 2010, to April 26, 2025, to allow for 40 years of 9304220069 930414 t)
PDR ADDCK 05000275 l
C PDR l
l
1 operation pursuant to 10 C.F.R. 6 50.51.
57 Fed. Reg. 32,575 (July 22,1992).
PG&E's application as supported by its review and assessment of environmental information pertinent to the license amendment. See License Amendment Request 92-04, 40-Year Operating License Application, Section 5.0. The notice included a proposed no significant hazards consideration determination, and specified that any person whose interest might be affected by this proceeding and who wished to participate as a party "must file a written request for a hearing and a petition for les,e to intervene" by August 21,1992. 57 Fed. Reg. 32,571. The notice further described the requirements of 10 C.F.R. 5 2.714 applicable to petitions for leave to intervene.
57 Fed.
Reg. 32,571, 32,572.
By letter to the Secretary of the Commission, dated August 18,1992, the SLOMP requested a hearing and petitioned for leave to intervene. On September 4 and 8,1992, respectively, PG&E and the NRC Staff filed responses: PG&E sought denial of the petition, and the NRC Staff argued that the petition was deficient but recommended a i
deferral of any decision pending receipt and consideration of any revised petition.
On September 10, 1992, an Atomic Safety and Licensing Board (" Licensing Board") was established to rule on petitions for leave to intervene and requests for hearing. 57 Fed. Reg. 43,035 (September 17,1992). By Memorandum and Order dated September 24, 1992, the Licensing Board, inter alia, established filing schedules and scheduled a prehearing conference.
On December 10,1992, the Licensing Board held a prehearing conference in San Luis Obispo, California, to consider these filings. On January 21,1993, the Licensing
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Board issued a "Prehearing Conference Order (Ruling Upon Intervention Petition and Authorizing Hearing)," in which it granted SLOhfP's petition for leave to inten>ene and request for a hearing, admitted Contention I, concerning alleged inadequacy of surveillance and maintenance, and that part of Contention V that concerned the adequacy of PG&E's implementation of interim measures to compensate for any inadequacy of l
Thermo-Lag fire protective material, and denied the remaining nine of SLOhfP's eleven proposed contentions. Among the contentions denied by the Board was Contention XI, which contended that "before permitting the extension of PG&E's license for the Diablo l
l Canyon Nuclear Power Plant, PG&E must weigh the costs and bene 9ts of continued operation of the plant as required by the National Environmental Policy Act (NEPA) 42 U.S.C. 4332." In its denial of Contention XI, the Board indicated that, in order for i
t a late-filed contention calling for an EIS to be accepted, it would have to be based on substantial and significant information indicating why an EIS is needed.
LBP-93-1,37 NRC 1 at 35-36 (1993).
On February 3,1993, the NRC Staff issued its Environmental Assessment and Finding of No Significant Impact. On hiarch 12, 1993, SLOhfP filed a late-filed j
contention, alleging that the NRC should be required to file an environmental impact statement.
. O DISCUSSION I.
SLOMP's Late-Filed Contention Fails To Meet Standards Applicable to Late Contentions i
A.
Lecal Standards For Late-Filed Contentions Section 2.714 of the Commission's regulations provides that late-filed contentions l
will not be considered unless the balancing of the five factors listed in Section 2.714(a)(1) t favors their admission.10 C.F.R. 6 2.714(a)(1). The five factors are:
j (i)
Good cause, if any, for failure to file on time.
l (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 l
expected to assist in developing a sound record.
l (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 l
or delay the proceeding.
l I
Id.
The petitioner bears the burden of proofin showing that a balancing of these five i
factors favors intervention. Metropolitan Ediscn Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327, 331 (1983). Although the regulations call for a balancing test, it has been held that where a petitioner fails to show good cause for filing a late petition, the other four factors must weigh heavily in its favor in order for the petition to be granted. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
ALAB-707,16 NRC 1760,1765 (1982). See also Long IslandLighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743,18 NRC 387,397 (1983).
i
1 The Comn'ission's regulations particularly provide that environmental contentions, to the extent possible, must be submitted on the basis of a licensee's environmental report, and may not await the Staff's environmental document. The relevant provision is:
On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report. The petitioner can amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's document.
10 C.F.R. 5 2.714(b)(2)(iii).
In Duke Power Co. (Catawba Nuclear Steion, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983), the Commission reversed an Atomic Safety and Licensing Appeal Board holding that the unavailability of an environmental statement of i!self provided good cause for failure to file environmental contentions within the times set in 10 C.F.R.
f 2.714. The Commission stated:
These procedural requirements are consistent with a petitioner's obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention.
Accordingly, the institutional unavailability of alicensing-related document does not establish good cause for filing a contention late ifinformation was publicly available early enough to provide the basis for the timely filing of that contention.
)
17 NRC at 1045.
l As to the unavailability of Staff environmental documents, the Commission l
l highlighted the duty of an intervenor to formulate contentions on the basis ofinformation
q
. 4 available to it at the time contentions are normally due, without awaiting the Staff's environmental documents. The Commission stated:
l l
While all environmental contentions may, in a general sense, ultimately be challenges to the NRC's compliance with NEPA, factual aspects of particular issues can be raised before the DES is prepared. As a practical matter, much of the information in an Applicant's ER is used in the DES.
Just as the submission of a safety-related contention based on the FSAR is not to be deferred because the staff may issue an SER requiring a change in a safety matter, so too, the Commission expects that the filing of an environmental concern based on the ER will not be deferred because the staff may provide a different analysis in its DES.
Should that circumstance transpire, there will be ample opportunity to either amend or dispose of the contention.
17 NRC at 1049.
i Thus, as a matter of law, an intervenor must file contentions on the basis of an applicant's environmental report, and does not have good cause to file new late contentions unless it establishes that new or different data or conclusions are contained in a later Staff environmental document.
B.
SLOMP's Late-Filed Contention XI Fails To Satisfy The Five Factors For 12te Contentions As noted above, SLOMP must show good cause for filing a late contention.
10 C.F.R. f 2.714(a)(1)(i). Failure to show good cause places a heavy burden on the intervenor to show that the other factors favor admission. Enrico Femi, ALAB-707 16 NRC at 1765. With regard to good cause, SLOMP merely states that the time it took to prepare its late-filed contention was " reasonable" and that its discovery obligations were " time consuming." Late-Filed Contention (hereinafter referenced as " Petition"),
at 14.
SLOMP's representation that it has good cause to file this contention on the EA's conclusion is not supported by the facts. The EA is sixteen pages long. It contains no information that was not previously available to SLOMP. SLOMP does not show that this material was not available in the licensee's environmental report. the Staff's prior environmental statement or other documents available to SLOMP. The Commission's i
regulations are particularly structured so that the claim of a need for an EIS cannot be a late-filed contention unless there is a significantly different conclusion in the Staff's environmental documents from that in the licensee's documents.
10 C.F.R.
-i 4
i f 2.714(b)(2)(iii). SLOMP points to no such significant difference and, indeed, there is none.
While it is true that SLOMP in Contention IX as originally submitted did, as part of its basis, state that a1 EIS was needed, the contention and the support for the contention rested on the need for a consideration of need for power and a cost-benefit analysis. SLOMP's argument for an EIS did not raise other environmental issues, P
I although it could have raised such matters based on the Licensee ER and the original FES. Having failed to do so when contentions were due, it does not have good cause to have such a contention tardily admitted. See 10 C.F.R. 6 2.714(b)(2)(iii); Catawba, supra; Union of Concerned Scientist v NRC, 920 F.2d 50, 55 (D.C. cit.1990).
Further, the Staff indicated at the prehearing conference that it had never been 1
found necessary to prepare an EIS with regard to an application for construction period recapture. Tr. 206. The Board reiterated this thought in its prehearing conference order, where it cited the Licensing Board in Vennont Yankee as having noted that EIS's had not
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been prepared in any of the prior recapture actions. LBP-93-1,37 NRC at 36, citing 31 NRC at 97-98. Thus, contrary to SLOMP's representation, no good cause exists for SLOMP's late filing.
Beyond that, virtually all of the documents on which SLOMP relies are much older than the EA itself. SLOMP's failure to familiarize itself with these documents at l
an earlier time does not constitute nor contribute to good cause for the late filing of this environmental contention.
An examination of each of the purported risks to the environment requiring the need for an EIS reveals that these were matters of which SLOMP had knowledge long before its original filing of contentions.
1.
Acing SLOMP first states an EIS is needed because of aging, relying principally on NUREG-1144 which is five years old. Petition at 2-8.
The other matters it cites principally predate the prehearing conference.
2.
Chances in Population Next, SLOMP claims an EIS is needed because of changes in the population.
Petition at 8.
Nothing is cited that SLOMP did not have before contentions were ori;inally filed. SLOMP knew or should have :'nown the content of the 1973 FES and, as it recites, it had knowledge of population changes before contentions were originally due. Ifit believed an EIS was needed because of this proposed population change, it was obligated to raise the maner on filing its original contentions.
4 i
,m,
- l 3.
Low Level Radiation Next, SLOMP says it raises the need for an ZIS late because of cumulative l
exposure to low level radiation. The only low level radiological releases cited at the l
facility long antedated the filing of contentions and SLOMP was obligated to raise them l
in connection with the licensee's environmental report ifit felt them germane. No good cause exists to raise this matter late.
4.
High Level Radioactive Waste Storace l
Next, SLOMP claims ui EIS is needed because of problems with high level i
radioactive waste storage. Petition at 10-11. No matter is cited that has arisen since the filing of contentions. No good cause is shown to raise this matter after original contentions were filed. 10 C.F.R. f 2.714(b)(2)(iii). Further, as discussed below, the availability of high level waste storage may not be raised in an individual licensing proceeding. See 10 C.F.R. 6 51.23(a).
5.
Low Level Radioactive Waste Storage l
Next, SLOMP claims an EIS is needed because of probbms with low level radioactive waste storage. Petition at 11-12. Again no new information is cited.
SLOMP was obligated to raise this matter at the time of filing contentions on :he j
licensee's environmental report.10 C.F.R. 5 2.714(b)(2)(iii), Catawba, supra. Having failed to do so, SLOMP shows no good cause to now raise this matter.
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llrCy
6.
Cost Benent Finally, SLOMP maintains that " cost benefits" require an EIS. Petition at 12-13.
This matter of need for power and the cost benefits of the facility may not be litigated here. See discussion, below.
The burden of showing why an EIS is needed after issuance of the Environmental Assessment is on SLOMP As the Board stated in LBP-93-1, a contention alleging the need for an EIS would have to be based on substantial and significant information.
37 NRC at 36. This SLOMP has failed to supply in its filing. As the Environmental Assessment stated, the conclusions of the May 1973 FES (and the 1976 Addendum) remain valid and operation of the plant has demonstrated that its impact on the environment has been within the bounds predicted by the FES for 40 years of operation.
EA at 13. There are no "previously unconsidered risks to the human environment" that are not bound by the conclusions in the FES.
The Staff concedes that SLOMP satisfies the second and fourth factors. With respect to the second factor, the availability of other means whereby the petitioner's l
l interest will be protected, no other means exist whereby SLOMP's interest can be protected. 10 C.F.R. Q 2.714(a)(1)(ii). With respect to the fourth factor, the extent to which the petitioner's interest will be represented by existing parties, no other party exists to represent SLOMP's interest. 10 C.F.R. 5 2.714(a)(1)(iv). Nevertheless, these two factors are the least important in balancing the five factors. See Comanche Peak, CLI-92-12,36 NRC at 74 (1992).
I I <
More significantly, SLOMP has failed to satisfy the third factor, the extent to l
which the petitioner's participation may reasonably be expected to assist in the development of a sound record.10 C.F.R. i 2.714(a)(1)(iii). When addressing the third i
l factor, a petitioner must " set out with as m' ch particularity as possible the precise issues i
it plans to cover, identify its prospective witnesses, and summarize their proposed l
testimony." Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2),
ALAB-704, 16 NRC at 1725,1730 (1982), quoted in Texas Utilities Electric Co.,
(Comanche Peak Steam Electric Station, Units 1 and 2), CL1-88-12,28 NRC 605,611 (1988).
With regard to the third factor, SLOMP states: "SLOMP's participation in the litigation of this centention will lead to development of a sound record. SLOMP has obtained technical assistance in preparing its case on this issue and expects to be able to provide expert testimony on the significant aging risks posed by the proposed operatinc license extension.
(Emphasis added)
Petition at 14.
Whatever may be the i
qualifications of SLOMP's unidentified witnesses on license extensions, license extensions are not the subject matter of this construction permit recapture application, as has been repeatedly pointed out to SLOMP. There may be a forum for SLOMP's expressed interest in aging as it relates to license extension, an item pleaded at length in its Supplement and again here; however, this is not a license extension, but a construction period recapture, and it is clear that anything SLOMP might offer on this score would not contribute to a sound record.
I l:
1 1 i l
Further, SLOMP has failed to identify the issues it plans to cover, the witnesses who would address those issues and the testimony they might present. Thus, SLOMP's showing on this important third factor is deficient and that factor should weigh heavily against the admission of Contention XI.
As regards the fifth factor, there is no doubt that admission of this environmental
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contention would broaden the issues and delay the proceeding.
10 C.F.R.
i f 2.714(a)(1)(v). In light of this factor, but more importantly in light of SLOMP's lack of good cause and inability to contribute to the record, the balance of factors weighs i
l against any benc - ' hat might be gained from delaying this proceeding.
II.
SLOMP Does Not Raise An Admissible Contention 1
The Commission's regulations pertaining to the admissibility of comcations are set forth in 10 C.F.R. f 2.714(d)(2). These contention pleadmg regmrements were l
established to " raise the threshold for the admission of contentions." See " Rules of j
Practice for Domestic Licensing Proceedings -- Procedural C'1anges in the Hearing Process," 54 Fed. Reg. 33168 (August 11, 1989). See also Ariwna Public Sen' ice Co.
i (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), CLI-91-12, 34 NRC 149, 155-156 (1991). Section 2.714(d)(2) incorporates the contention requirements found in 10 C.F.R. 6 2.714(b;'2) and specifies that contentions that fail to meet the admissibility requirements shall not be admitted.
10 C.F.R. f 2.174(d)(2).
The admissibility
t provisions of Section 2.714(b)(2) require the petitioner to supply "[a] concise statement of the alleged facts or expert opinion" and " references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely."
i 1
10 C.F.R. f 2.714(b)(2)(ii).
In addition, the petitioner must provide sufficient information to show that a i
genuine dispute on a material issue oflaw or fact exists. The Commission's regulations j
require that this showing include " references to the specific portions of the application
... that the petitioner disputes and the supporting reasons for each dispute." 10 C.F.R.
f 2.714(b)(2)(iii). If any one u these requirements is not met, the contention must be rejected. Palo Verde, CLI-91-12,34 NRC at 155. As discussed below, SLOMP fails 1
^
to show that a genuine dispute with respect to a relevant issue of fact or law exists.
Further, SLOMP fails to provide such substantial and significant information as the Board indicated must be provided as a basis for a contention calling for an EIS where none is otherwise required by the Commission's regulations.
A.
Agine As regards SLOMP's argument concerning aging as a basis for its contention that the Staff shou!d have prepared an EIS on the' proposed action, the argument was made l
in SLOMP's Supplement of October 26,1992, to support SLOMP's Contention IV as a health and safety contention. The Licensing Board correctly found that contention to be lacking in basis. SLOMP's late attempt to transfer its concern about aging to the environmental side and to suggest that unanticipated impacts of aging require an EIS is similarly baseless. SLOMP offers the same LER's it offered as support in October; i
i however, contrary to SLOMP's representation, SLOMP's admitted Contention I does not i
demonstrate that "NRC and PG&E records demonstrate defects in PG&E's maintenance and surveillance program." Petition at 4. A Licensing Board fimding that Contention I has a basis adequate for admission is merely a finding that Contention I satisfies a pleading requirement. It does not support the part of SLOMP's late-filed contention on the need for an EIS because of " aging." Therefore, SLOMP may not bootstrap the i
admission ofits Contention I into evidence of the existence of maintenance problems as a basis for an environmental concern about aging. Further, SLOMP continues to cite to l
the same irrelevant documents on a different subject matter, license renewal, despite the 8
fact that this position has already been rejected. See LBP-93-1, 37 NRC 1, at 24-25, (rejecting SLOMP's Contention IV concerning aging as lacking in basis).
On pp. 6-7 ofits Petition, SLOMP states that the success of PG&E's surveillance i
and maintenance programs cannot be used as "an excuse not to prepare an EIS."
However, SLOMP has the burden to show an impact significant enough to elevate the
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Diablo Canyon Construction Permit Recapture to the category of major federal action
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where no other such action has ever been found to require an EIS. As SLOMP recognizes, the EA states that the proposed action will not create any "new or unreviewed environmental impacts" and that the original FES considered a 40-year operating life.
Petition at 7, citing EA at 2. As explained above, the burden of showing the need for an EIS is SLOMP's and SLOMP has not met it. SLOMP has not even begun' to show that there is reliable information that should have caused the NRC to pre-pare an er.vironmental impact statement.
l r
. SLOMP, without basis, equates " corroded and degraded systems," etc. with aging and provides a list of LER's and IR's that it believes might relate to these subject matters. Petition at 4. However, SLOMP provides no basis for believing that any of these items has anything to do with aging. Therefore, they cannot form a basis for a contention concerning aging. As discussed above, SLOMP tries to tie this item into its E
admitted contention on surveillance and maintenance, opining that improper maintenance exacerbates aging effects. At 4. SLOMP offers nothing to cause the Board to rethink t
its rejection of Contention IV, where the Board said: "We also note that, to the extent that degradation is subject to maintenance efficacy, the subject will be examined in conjunction with the contention on that subject that we are accepting (Contention I)."
37 NRC 5 at 25.
B.
Change in Population r
SLOMP alleges that an EIS is needed to determine whether or not the change in population affects previous conclusions on the potential environmental impacts of offsite releases. SLOMP maintains that the FES did not anticipate or analyze the substantial population growth that has, in fact, already occurred as of 1992. SLOMP misapprehends the regulations and the analysis in the EA.
As stated in the EA, the current exclusion area boundary, Low Population 7_one (LPZ), and the nearest population center distance (PCD) will continue to meet the requirements of 10 C.F.R. f 100.11(a) for the proposed 40 year license terms. EA at
- 3. The fact that the nearest population center distance (Baywood - Los Osos) will change from 10 miles to 8 miles in 2020, does not change the fact that the requirements that the i
I PCD be least one and a third times the distance from the reactor to the outer boundary of the LPZ continue to be met. See 10 C.F.R. 6 100.11(a)(3). Thus, the changes projected for the population distribution through 2025 will not impact the boundaries used for existing accident analyses. Since the boundaries used will not change, the conclusions in the FES regarding the potential environmental effects of offsite releases from postulated accidents. EA at 3 continue to be valid.'
I SLOMP has simply not shown how the change in population impacts the analysis required by 10 C.F.R. 6100.11(a) and has not demonstrated the need for an EIS.2 f
C.
Cumulative Exposure to Low Level Radiation SLOMP requests an EIS be performed for the purpose of determining the cumulative and chronic impact of low level radiation on the population surrounding the Diablo Canyon Nuclear Power Plant. Petition at 9. SLOMP maintains that atmospheric releases and the generation, storage and transportation of high and low level radiation i
exposes the local population through the air, soil and water. Id. The organization cites l
several incidents purporting to show accidental releases that SLOMP seems to think might
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have affected the local population. Id.
In actual fact, however, only one of the incidents cited resulted in any offsite release of any sort, and this release was an insignificant fraction of the limits in 1
8 It should also be noted that the changes in population have been taken into account in the updates to the FSAR, which include population data from the 1990 Census (FSAR, Table 2.1-3, update September 1992, Rev. 8).
2 The analysis required by 10 C.F.R. 6100.11(a) is a function of distance and population, and does not translate into increased dose due to increased population, which seems to be the implicit assumption in SLOMP's allegation here.
10 C.F.R. Part 20, Appendix B.3 The other incidents all involved releases within the containment or auxiliary building and were wholly onsite.' The only exposure of concern i
was occupational exposure, and SLOMP does not purport to represent the workers at Diablo Canyon. LBP-93-1, 37 NRC at 12, 29. Additionally, the waste shipment referenced in SLOMP's filing had no effect on the surrounding environment. While the shipment itself had an internal reading somewhat higher than normal, this did not involve a release to the atmosphere.
l SLOMP also claims that the correlation between exposure to low doses of r
radiation and the risk of cancer did not exist when the FES was completed in 1973 and i
I that an EIS is now required to analyze the effects of chronic low level radiation on the i
local population.
Essentially, the argument here is not that the Environmental i
Assessment raised any new matters. In fact, the EA adequately confirms that the bounds 3 NRC Inspection Report 50-275/85-17 and 50-323/85-17 involved a ruptured disc within the BA evaporator that created an indirect vent path to the auxiliary building atmosphere. The auxiliary building ventilation system exhausted the radioactive release into the. environment via the plant stack. While radioactive gases escaped the auxiliary building via the exhaust path, any particulates were captured by ventilation filters. The total activity extrapolated to the site boundary indicated a concentration of 1.88 x 10-"
curies per milliliter and a whole body dose of 7.54 x 10* rem (i.e.,less than a billionth).
Activity levels during the release were significantly below the detectable threshold of the plant stack radiation monitor. IR at 6.
- For example, Notice of Violation, EA 87-131, August 7,1987, does not contain any reference to a release of radioactive material, but concerns draining the steam generation tube to a level lower than the procedures called for. Additionally, several other procedures were violated, but none of these reference any radiological release. The Notice of Violation NRC Inspection Report 50-275/92-26 and 50/232/92-26, November 13, 1992, involves a violation of the procedure for steam generator shot peening that led to the unanticipated spread of high airborne radioactivity in containment.
Several workers rxeived uptakes from this incident, but no release occurred to the outside atmosphere. IR at 9.
t
t i
1 set forth in the FES have not been exceeded. Indeed, the anticipated offsite dose during i
i the period covered by the proposed license amendment would remain a fraction of the 10 C.F.R. Part 50, Appendix I limits, based on the actual plant operating data, which is i
below the dose anticipated in the FES at 5-59, Table 5.26.
1
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What is at heart here is a challenge to the NRC reguIations in Appendix I.
SLOMP contends that no dose no matter how small is acceptable. This position takes issue with the NRC's ALARA requirements set forth in 10 C.F.R. Part 20 and 10 C.F.R. Part 50, Appendix I.
SLOMP cannot challenge the NRC regulations by way of a contention submitted in this proceeding. See 10 C.F.R. Q 2.758(a); Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79, 88-89 (1974); Cleveland Electric Illuminating Co. (Perry Plant, Units 1 & 2),
LBP-85-33,22 NRC 442,444 (1985). SLOMP may seek to file a petition pursuant to l
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10 C.F.R. 6 2.758, but cannot use this amendment proceeding to challenge the NRC's
)
i requirements.
Thus, SLOMP raises nothing in this aspect of the environmental contention that is new based on the Environmental Assessment.
The radiological consequences of operation of the plant have not changed since issuance of the FES, other than to be lower than projected. Hence this is not an issue that is related solely to the Environmental Assessment and it is not an issue that is litigable in this amendment proceeding.5 5 In any case, the somatic and genetic effects of radiation as set forth in the FES and its amendment were litigated and the FES was upheld by the Licensing Board, Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-78-19,7 NRC 989,1025-27 (1978). Thus, Intervenors have already lost on challenging the (continued...)
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. D.
Hieh Level Radioactive Waste Storage SLOMP once again attempts to mise the issue of high level waste storage at Diablo Canyon. This issue is barred as a matter of law from license operating and amendment proceedings. See 10 C.F.R. 6 51.23 (a). 37 NRC at 30, citing Vennont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LBP-90-6, 31 NRC 85,94-95 (1990).
This is not a matter raised in the Environmental Assessment, as it is specifically excluded from discussion therein by regulation. SLOMP may not refile this same issue based on the EA when it has already been barred from the proceeding and the Environmental Assessment does not raise the matter. Further, the seismic design basis i
of the structures, systems and components of the Diablo Canyon plant was analyzed in relation to the Hosgri Fault earthquake potential and found adequate, and SLOMP was a party to all the proceedings in which the Hosgri fault was fully examined. Pacific Gas
& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-79-26, 10 NRC 453, 470489; 500-502 (1979); ALAB-644,13 NRC 903 (1981); see also LBP-86-21,23 NRC 849 (1986) (rejecting contentions regarding seismic qualification of the Diablo Canyon spent fuel pool).
5 (... continued) conclusions in the FES and there is nothing in the Environmental Assessment that differs from what was previously found acceptable.
l l l E.
Low Level Radioactive Waste Storace i
SLOMP alleges that an EIS is needed because when the FES was written the 1
problem surrounding disposal oflow level waste did not exist. The problem oflow level i
waste disposal is addressed in the Low Level Radioactive Waste Policy Amendments Act of 19"<,42 U.S.C. f 2021(b) et seg,' and, by the terms of that statute, is outside the scope of this proceeding.
I j
As the Licensing Board in Vermont Yankee observed, "the obligations placed on l
Vermont by the LLRWPAA are independent of the NRC's licensing responsibilities under the Atomic Energy Act." LBP-90-6,31 NRC at 93. The same is true of California in
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this case. Further, the concern raised by SLOMP relates to the current operation of the plant (1994), and does not in any way relate to the recapture period (i.e., after 2008).
Hence the issue is also speculative as to what may or may not be a problem in the I
recapture period and does not lead to a requirement for an EIS in this proceeding.
F.
Cost Benefit l
l To support its contention that an EIS should be prepared, SLOMP takes issue with a statement in the EA that the cost b.nefit of the plant as compared with alternative electrical power generating capacity improves with age. Petition at 12. Citing a
- The constitutionality of this act, with the exception of the "take title" provisions requiring States to take title to the waste if a State is unable to provide for the disposal of ware generated within its borders at 6 2021e(d)(2)(c), has been upheld by the Supreme j
Cuart in New York v. U.S.,112 S. Ct. 2408 (1992). Thus, there is sufficient assurance that this issue will be addressed by the States as directed by Congress.
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statement prepared by a ratepayer advocate group,7 SLOMP questions the need for new baseload capacity and the economic benefit of extending the operating life of the Diablo plant as compared with the utilization of alternative energy sources. Id. at 13.
The question of whether new baseload capacity is needed or whether operation of plant compares favorably with other alternatives in economic terms, however, is not litigable in the context of an operating license amendment proceeding. Rather, the scope of a NEPA review of an amendment is limited to a consideration of the extent to which the action will lead to environmental impacts beyond those previously evaluated in the FES. Florida Power and Light Co. (Turkey Point Nuclear Generating, Units 3 and 4),
LBP-81-14,13 NRC 677,684-85 (1981), citing Consumers Power Co. (Big Rock Point Nuclear Plant),.ALAB-636,13 NRC 312 (1981). Even if the amendment might be necessary to continued reactor operation, the scope of review does not extend to a reconsideration of alternative energy sources or energy reduction measures. Id.
Thus, SLOMP is asking for consideration of issues that go beyond the scope of the NEPA review that is required for the requested amendment. Questions concerning the need for baseload capacity, of alternative energy sources or alternate sites are properly considered at the construction permit stage. Carolina Power and Light Co. and 7 Letter from the Division of Ratepayer Advocates to The Honorable Herschel Rosenthal regarding the Diablo Canyon license recapture, December 8,1992. (" Letter")
In this contention, SLOMP also states that Judge Bechhoefer asked the Staff to accept their Supplement to Petition to Intervene as a comment in the preparation of the EA. As noted in the Prehearing Conference Order (Slip op. at 15), and shown in the transcript (Tr.187-89), the Board asked the Staff to consider proposed Contention X in its no significant hazards determination in the Staff's Safety Evaluation, not SLOMP's environmental concerns in the Staff's EA.
u North Carolina Eastern Municipal Power Agency (Sheaton Harris Nuclear Power Plant, I
Units 1 and 2), LBP-83-27A,17 NRC 971,972 (1983); see Public Service Co. ofNew l
Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8,5 NRC 503,522 (1977). These considerations are not a part of the NRC's operating license environmental review.
10 C.F.R. 6i 51.95,51.106; Dairyland P0wer Cooperative (La Crosse Boiling Water Reactor), LBP-82-58,16 NRC 512,527 (1982).
In essence, the issue raised by SLOhfP's supporting documentation is whether
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operation of Diablo Canyon is the most economical way for PG&E to produce power.
That question can only be considered by comparing the cost / benefit of Diablo Canyon with the cost / benefit of alternative sources of energy. When, as here, issues concerning alternative energy sources are precluded from NRC review by regulation, consideration of the expense of producing power is also precluded. Id. at 526-27, citing Consumers Power Co. (hfidland Plant, Units 1 and 2), ALAB-458, 7 NRC 155,161-63 (1978);
Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1 A, 2A, 1B, 2B),
ALAB-367, 5 NRC 92,102-03 (1977); lilinois Power Co. (Clinton Power Station, i
Units 1 and 2), ALAB-340,4 NRC 27,48 (1976); Northern States Power Co. (Prairie j
l Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 862 (1974).
Beyond their concerns regarding the need for baseload capacity and use of alternative energy sources, SLOhiP has not raised any challenge to the Staff's cost benefit analysis. Thus, SLOhfP has failed to advance any litigable claim that the proposed amendment would have environmental costs beyond those that have previously been considered. Accordingly, proposed basis 6 should be rejected.
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CONCLUSION l
SLOMP's late-filed contention is late without good cause. It states no basis for its conclusion that an environmental impact statement should be prepared in connection
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with the proposed action. Accordingly, SLOMP's late-filed contention should not be i
admitted.
Respectfully Submitted, o
'h 4A
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Ann P. Hodgdon -
Counsel for NRC Staff powv hM de y Lisa B. Clark i
Counsel for NRC Staff b
Dated at Rockville, Maryland l
this 14th day of April 1993 l
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