ML20039B483
| ML20039B483 | |
| Person / Time | |
|---|---|
| Site: | Dresden  |
| Issue date: | 12/18/1981 |
| From: | Rawson R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8112230105 | |
| Download: ML20039B483 (29) | |
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JLLLL f l? jy UNITED STATF.S OF AMERICA D
NUCLEAR REGULATORY COMMISSION G
BEFORE THE ATOMIC SAFETY AND LICENSING B ' IF 8
In the Matter of COMMONWEALTH EDISON COMPANY
)
Docket No. 50-10
)
(Decontamination)
(Dresden Nuclear Power Station,
)
Unit No. 1)
)
NRC STAFF RESPONSE TO PETITIONERS' AMENDED PETITION AND INITIAL CONTENTIONS I.
INTRODUCTION On December 19, 1974, Commonwealth Edison Company (" Ceco") proposed a plan for the chemical decontamination of the interior surfaces of the primary cooling system of its Dresden fluclear Power Station, Unit No.1.
The purpose of decontamination is to remove from the primary cooling system radioactive corrosion products which have accumulated during operation of the plant.
The NRC Staff completed its review of the decontamination proposal on December 9,1975, concluding that no adverse environmental impacts would result from the decontamination and that the program involved no significant hazard considerations.
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On November 14, 1979, Ceco applied for amendments to two Technical Specifications in-its operating license in order to carry out the proposed decontamination. A single petition was filed on July 8,1980 on behalf of Citizens for a Better Environment, Prairie Alliance, Kay Drey, Bridget Rorem, Illinois Safe Energy Alliance and !!arilyn Shineflug
(" petitioners") requesting that hearings be held on CECO's application 81 22 DESIGliATED ORIGIllAL hA O!ddhdk Certified By IM) k#
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,O and also on the NRC's environmental impact statementN for the decontamination operation at Dresden.
After soliciting additional information from the Staff, CECO and petitioners, the Commissicn issued a Memorandum and Order on September 28, 1981 addressing the petition.
Commonwealth Edison Company (Dresden Nuclear Power Station, Unit 1),
CLI-81-25, 14 NRC (September 28,1981).
The Commission directed that a Licensing Board be established to determine which petitioners, if any, had standing to intervene.
If a petitioner demonstrated standing and proffered at least one litigable contention, the Licensing Board was directed to initiate a hearing, the procedure and scope for which was stated in detail.
A Licensing Board was established pursuant to the Commission's order on September 30, 1981.
The Licensing Board on October 9, 1981 issued an order directing petitioners to file an amendment to their petition setting forth:
"(1) with particularity the interest of each of the Petitioners in the proceeding and how that interest may be affected by the results of.the proceeding; and (2) a list of contentions which each of Petitioners seek to have litigated and the bases for each contention set forth with reasonable specificity.
Petitioners' contentions must be confined to the matters specified by the Commission for litigation under the heading ' Scone of Hearing' in its Memorandum and Order."
y Despite the earlier finding that decontamination wocid cause no adverse environmental impacts, the Staff decided t.o prepare an environmental impact statement because of public intert it in the CECO proposal.
This environmental impact statement ("
i") was issued on October 17, 1980.
..a The October 9,1981' order also. established a. schedule for the filing of the amended petition and responses thereto.
By Order dated October 26, 1981,.that schedule was modified to require filing of the amended petitions by November 27, 1981 and of the responses by December 18, 1981.
Petitioners' Amended Petition and Initial Contentions, dated November 24, 1951, has been filed in response to the Licensing Board's October'9 Order.
As with the original petition, the Amended Petition and Initial Contentions is a single document filed on behalf of all six petitioners.
The Staff's response to the amended petition and proffered contentions is set forth below.
II.
DISCUSSION Under the Commission's regulations, intervention will be granted to a petitioner who has a cognizable interest in the proceeding and who presents at least one litigable contention.
10 CFR.s 2.714; Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3),
ALAB-125, 6 AEC 371, 372 (1973). The legal standards for the Commission's interest and contention requirements are-discussed in the I
'ollowing sections, and petitioners' amended petition and initial contentions are evaluated against those standards to determine whether intervention should be granted.
A.
Interest and Standing 1.
Requirements for Intervention as of Right The Commission's regulations require that a petitioner for leave to intervene submit a written petition setting forth with particularity the petitioner's interest in the proceeding and how that interest may be affected by the results of the proceeding, including the reasons why the f
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.- petitioner should be permitted to intervene.
10 CFR 9 2.714(a)(2).E In determining whether the foregoing' requirements have been satisfied, the Commission has' ruled-that contemporaneous judicial concepts of standing should be applied in NRC licensing proceedings.
Portland General' Electric Company, et al. (Pebbls Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976).
These concepts require a showing that the action being challengeo could cause " injury-in-fact"E to the person seeking standing, and that such injury is arguably within the " zone of interest" protected by the Atomic Energy Acts or the National Environmental Policy Act.N Id.
See also Warth v. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972);
Association of Data Processing Service Organizations, Inc. v. Camo, 397 U.S. 150, 153 (1970).
y This section of the Cormiission's regulations also requires that a petition for intervention identify the specific aspects of the subject matter of the proceeding 'as to which intervention is sought. The requirement of 10 CFR 5 2.714(a)(2) that petitioners identify aspects is satisfied in this instance through petitioners _'
submission of contentions.
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" Abstract concerns" or a " mere academic interest" in the matter which are not accompanied by some real impact on a petitioner will not confer standing.
See In the Matter of Ten Applications for Low-Enriched Uranium Exports to EURATOM Member Nations, CLI-77-24, 6 NRC 525, 531 (1977); Pebble Springs, CLI-76-27, supra at 613.
Rather the asserted hann must have some particular effect on a petitioner, Ten Applications, CLI-77-24, supra, and a petitioner must have some direct stake in the outcome of the proceeding.
See-Allied-General Nuclear Services, et al.(Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422 (1976).
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42 U.S.C. Q 2239 g seg.
y 4? U.S.C. 5 4321 g sea.
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The Appeal Board has ruled that the geographical proximity of a petitioner's residence standing alone is sufficient to satisfy the interest requirements ^ of 10 CFR 9 2.714.
Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979).
Though no firm outer boundary for this geographic zone of interest has been determined, distances of up to 50 miles have been accepted by the Appeal Board as conferring standing upon particular petitioners.
See, e.g., Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413 5 NRC 1418, 1421 at n. 4 (1977).
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Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631, 633-34 (1973); Northern States Power Company (Prairie Island Nuclear Generating Plant, " nits 1 and 2), ALAB-107, 6 AEC 188,190,193, reconsideration denied, ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973).
An organization may gain standing to intervene based on injury to itself.
Edlow International Company, CLI-76-6, 3 NRC 563, 572-74 (1976).
If the organization seeks standing on its own behalf, it must establish that it will be injured and that the injury is not a generalized grievance shared in substantially eoual measure by all or a large class of citizens.
Ten Applications, CLI-77-24, supra at 531.
i On the other hand, an organization may establish standing through members of the organization who have interests which may be affected by l
the outcome of the proceeding.
Public Service Co. of Indiana, Inc. (Marble i
Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976). At the same time, when an organization claims that its standing is based on the interests of its members, the organization must identify specific individual members (by name and address) whose interests M
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' may be affected and give some concrete indication that such members have authorized the organi:stk.1 to represent their interests in the proceeding.
Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 393-97 (1979); Public Servica Electric and Gas Compo:y (Salem Nuclear Generating Station, Units.1 a.d 2), ALAB-136, 6 AEC 487, 488-89 (1973); Duquesne Light Company, et al. (Beaver Valley Power Station, Unit No.1), ALAB-109, 6 AEC 243, 244 at n.2 (1973).
2.
Interest and Standing of Petitioners in This Proceeding An application of the foregoing p-inciples to ear:1 of the b in the instant proceeding is set forth below, petitioners a.
Petitioner Citizens for a Better Environment Fails To Meet the Interest Requirement of 10 CTR % 2.714(a)
Petitioner Citizens for a Better Environment ("CBE") states that it is an " Illinois not-for-profit corporation" with approximately 3000 Illinois members and approximately 12,000 members nationwide.
Its petition in this proceeding is filed on behalf of three of its members who reside within 20 miles of the Dresden facility "whose health, safety, and property may_be adversely affected" and also for its members "who reside near nuclear stations which may be decontaminated in the future." Amended Petition at 1.
CBE's showing of interest in this 6]
As noted by the Commission in its September 28, 1981 Memorandum and Order, Commission practice requires each party separately to
'stablish standing.
CLI-81-25, slip op. at 9.
Altnough the Ccmmission has directed consolidation of intervening parties in th+s proceeding, such consolidation may take place only after pNitioners hwe established standing and been admitted as parties.
CLI-81-25, slip op. at 10.
Thus, the Commission's direction to consolidate does not relieve any petitioner of its burden of establishing its interest and standing.
.- proceeding'as stated in the Amended Petition is inadequate to support fr.t rvention.
CBE has not attempted to demonstrate that it has standing based on any injury to itself as an organization.
Accordingly, CBE must rely for its standing on the standing of at least one of its individual members.
Marble Hill, ALAB-322, supra. While the three members who allegedly live within 20 miles of the Dresden facility would have standing on the basis of their geographical proximity, CBE has failed to identify these members and to demonstrate its authority to act on their behalf in this proceeding.
See Allens Creek, ALAB-535, supra.
CBE's statement that its petition is-also submitted on behalf of members who reside near nuclear stations which may be decontaminated in the future is also inadequate to give CBE standing in this proceeding.
Fir st, the matter in question here is the decontamination of the Dresden facility.
Decontamination of other facilities, if any, cannot serve to provide standing for intervention in this licensing action for.Dresden.
Injury-in-fact for other licensing actions is not transferable to the Dresden licensing action.72 Second, even if these persons demonstrated standing to intervene here, CBE again i
fails to identify these members and to demonstrate its authority to act on their behalf in this proceeding.
For the.e reasons, CBE fails to meet the interest requirement of 10 CFR 5 2.714(a) and intervention cannot be granted based on CBE's petition as currently constituted.
7f The interests of members who reside near nuclear stations "which may be decontaminated in the future" are simply not cognizable in this particular licensing proceeding.
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4 b.
Petitioner Prairie Alliance Fails To Meet the Interest
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Requirement of 10 CFR % 2.714(a)
Petitioner Prairie Alliance ("PA") alleges that it is an " Illinois not-for-profit corporation" with approximately 350 members residing in Illinois.
Its petition in this proceeding is filed "on behalf of one of its members who resides within 15 miles" of the Dresden facility and whose " health, safety and property may be adversely affected." Amended Petition at 1.
PA's showing of interest in this proceeding as stated in e
the Amended Petition is inadequate to support intervention for the same reasons as CBE's statement of interest is inadequate.
Again, in the absence of a showing that it has standing based on inju~ry to itself, PA must rely for its standing on the standing of at least one of its individdal members.
Marble Hill, ALAB-322, supra.
While the one member of PA who allegedly lives within 15 miles of the Dresden facility would have standing under North Anna, ALAB-522, supra,-
PA has failed to identify this member by name and address and to demonstrate its authority to act on that member's behalf in this proceeding.
See Allens Creek, ALAB-535, supra.
Accordingly, PA fails to meet the interest requirement of 10 CFR 9 2.714(a) and intervention cannot be granted based on PA's petition as currently constituted.
c.
Petitioner Kay Drey Fails To Meet the Interest Requirement of 10 CFR 6 2.714(a)
Petitioner Xay Drey states that she is a Missouri citizen and that she, her family and her descendants will be adversely affected "by any negative environmental impact resulting from tha decontamination at
- other nuclear stations." Amended Petition at 2.
This statement of interest is inadequate to support intervention by Ms. Drey.
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. Ms. Drey does not assert that she lives in geographical proximity to the Dresden facility and her concern about the potential effects of possible decontaminations at other nuclear stations is not cognizable in this particular licensing proceeding. The possibility and effects of non-existent decontamination programs at facilities other than Dresden are beyond the scope of the instant proceeding and cannot be considered in the instant proceeding.
In turn, they cannot provide a basis for standing in this proceeding. The adjudicatory process may be invoked only by those persons who have real interests at stake and who seek resolution of concrete issues which are proper for adjudication in the particular proceeding.
Philadelphia Electric Company, et al.
(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974). As the Appeal Board instructed in Duke Power Company (William B.
McGuire Nuclear Station, Units 1 and 2), ALAB-128, 6 AEC 399, 401 (1973):
"If facts pertaining to the licensing of a particular nuclear power plant are at issue, an adjudicatory proceeding is the right forum.
But if someone wants to advance generalizations regarding his particular views of what applicable policies ought to be, a role other than as a party to a trial-type hearing should be chosen."
There is no apparent reason why Ms. Drey cannot protect lier interests by presenting her concerns about decontamination of nuclear plants generally to the Commission or by intervening in proceedings for the decontamination, if any, of ar.y facility sufficiently clase to her to I
affect those interests.
Her interest in this proceeding, however, is purely academic and therefore not sufficient to support intervention.
Ten Applications, CLI-77-24, supra.
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Petitioner Bridget Rorem Has Satisfied the Interest Requirement of 10 CFR s 2.714(a)
Petitioner Bridget Rorem alleges that she resides within 15 miles of the Dresden facility and that her health, safety and property and that of her family and descendants "will be adversely affected by any negative environmental impact resulting from the decontamination" at Dresden.
Amended Petition at 2.
Under North Anna, ALAB-522, supra, this statement is sufficient to demonstrate Ms. Rorem's standing to intervene in tnis proceeding.
e.
Petitioner Illinois Safe Energy Alliance Fails To Meet the Interest Reauirement of 10 CFR s 2.714(a)
Petitioner Illinois Safe Energy Alliance ("ISEN') states that it is a coalition of nineteen affiliate organizations located in Illinois with a total of over 300 members.
Its petition is filed on behalf of "its members who reside near the Dresden Nuclear Poder Station, Unit 1 and who may be adversely affected by any negative environmental impact resulting from the decontamination" of the Dresden facility.
Am:nded Petition at 2.
ISEA's showing of interest in this proceeding as stated in the Amended Petiticn is inadequate to support inter /ention for the same reasons that CBE's and PA's statements are inadequate.
As an organization which does not allcge stEnding based on injury to itself,
. ISEA must rely on the standing of one of' its members / to support its E
own standing to intervene in this proceeding.
Marble Hill, ALAB-322, suora.
ISEA has failsd to identify the members who live near the Dresden facility, failed to state precisely how near those members live and failed to demonstrate its authority to act on those members' behalf.
See Allens Creek,- AL. '-535, supra.
For these reasons,-ISEA's petition fails to satisfy the interest requirement of 10 CFR 9 2.714(a) and intervention cannot be granted based on ISEA's petition as currently constituted.
f.
Petitioner Marilyn Shineflug Fails To Meet the Interest Requirements of 10 CFR 6 2.714(a)
T Petitioner Marilyn Shineflug states that she is a resident of Illinois and that "her health, safety and property and that of her family and descendants will be adversely affected by any negative environmental impact resulting from the decontamination" of the Dresden facility.
Amended Petition at 2.
This statement of interest is insufficient to support intervention by Ms. Shineflug.
It is a petitioner's burden to demonstrate that he or she has a cognizable interest in a proceeding to support intervention.
10 CFR Q 2.714(a)(2).
i Ms. Shineflug fails to demonstrate that she resides or otherwise engages i
in substantial activities in geographical proximity to the Dresden p/
The fact that ISEA is made up of affiliate orgar.izations, rather than individual persons, as members does not preclude ISEA from establishing standing through the standing of its members.
Since ISEA's members are organizations, the standing of the particular affiliate in question must also be demonstrated through identifi-cation of that affiliate's member who has standing.
Thus, ISEA is required to identify both its member organization and that organization's member who has standing.
- a facility as required under North Anna, ALAB-522, supra, and other cases interpreting the Commission's regulations. This omission is fatally.
defective and intervention should be denied.
3.
Discretionary Intervention As the Commission noted in its September 28, 1981 Memorandum and Order in this proceeding, intervention may be granted "as a matter of discretion according to specific criteria" to some petitioners wno are not entitled to intervention as a matter of right.
CLI-81-25, slip op.
at 9 (citing Portland General Electric Company, et al. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976)).
In Pebble Springs the Commission delineated these specific criteria as:
(a) Weighing in favor of allowing intervention -
I (1) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
(b) Weighing against allowing intervention -
(4) The availability of other means whereby petitioner's interest will be protected.
(5) The extent to which petitioner's interest will be represented by existing parties.
(6) The extent to which petitioner's participation will inappropriately broaden or delay the proceeding.
4 NRC at 616.-
The Commission also cautioned in Pebble Springs that adjudicatory boards "should exercise their discretion based on an assessment of all the
- facts and circumstances of the particular case." jd.
Discretionary
-intervention should be afforded more readily:
"where petitioners show significant ability to contribute on substantial issues of law or fact which will not otherwise be properly raised or presented, set forth these matters with suitable specificity to allow evaluation, and demonstrate their importance and immediacy, justifying the time i.acessary to consider them." 4 NRC at 617.
The Staff submits 'that none of the petitioners / in this proceeding E
quelify for discretionary intervention under Pebble Strings, CLI-76-27, supra.
Petitioners have not made the required showing of a significant ability to contribute on substantial issues which will not otherwise be properly raised or presented, nor have they demonstrated that the other criteria established by the-Commission in Pebble Springs have been satisfied.1S/ Further, petitioners have not shown that their partici-pation will assist in develeping a sound record, they have shown no interest other than a purely academic one, and they have shown no direct effect.on them of any order which may be entered in this proceeding.
Finally, there is no reason to believe that Ms. Rorem, who has a cognizable interest, will be unable adequately to represent whatever interests petitioners have.
To the contrary, Ms. Rorem is represented l
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References to " petitioners" in this section do not include Ms. Rorem, who has demonstrated her standing to intervene as a matter of right as a " person whose interest may be affected" within the meaning of the Atomic Energy Act, Section 189a,. 42 U.S.C. 2239(a).
l 10/ In lignt of the apparent remoteness of their interest in this proceeding, Ms. Drey and Ms. Shineflug have an especially strong obligation to demonstrate their ability to make a valuable contribution to the record.
See Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, l
1150 (1977).
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by the same counsel and has presented precisely the same issues for adjudication.
The burden of convincing a Licensing Board that discretionary intervention is appropriate lies with the petitioners.
Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978).
That burden has not been carried here.
Indeed, petitioners have made no attempt of any sort to address the criteria for discretionary intervention.
Under these circumstances, intervention should not be permitted as a matter of discretion to the remaining petitioners.
B.
Contentions 1.
Contention Recuirements Under 10 CFR 5 2.714(b), a petitioner is required to submit a list of the contentions petitioner s?eks to have litigated and a statement with reasonable specificity of the basis for each contention.
Among the i
purposes of the basis requirement are to establish sufficient foundation for the contention to warrant further inquiry o' 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 Station, Units 2-and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
For a I.etitioner to be granted intervention, petitioner must proffer at least one admissible contention.
10 CFR 6 2.714(b).
In evaluating the sufficiency of a contention, it is not the Licensing Board's function to reach the merits of the proferred conten-tion; admissibility requires only that the basis for the contention be rM-~~,
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.- provided with reasonable specificity. Houston Lightino and Power Comoany (111 ens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 548 (1980); Mississipoi Power and Lioht 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 of a contention as a basis for granting intervention:
"[T]he intervention board's task is to detennine, 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 indivi-dual licensing proceeding."
(footnotes omitted)
If a contention meets these criteria (and petitioner otherwise satisfies the requirements of 10 CFR 9 2.714(a)), the contention provides a foundation for granting inter /ention " irrespective of whether resort to extrinsic evidence might establish the contention to be insubstantial."
7 AEC at 217.
A licensing board ir. an operating license proceeding, however, "should take the utmost care to satisfy itsIlf fully" that one good contention has been alleged before it permits the hear'ng 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).
In addition to the criteria for contentions established by the Commission's regulations, the Commission has imposed constraints on the types of contentions which will be litigable in this spe.ific proceeding.
Under the Comminion's Memorandum and Order of September 28, 1981, the scope of a g hearing conducted by this Licensing Board
w includes only "tne proposed license amendments, and any health, safety or environmental issues fairly raised by them." CLI-81-25, slip op.
at 10. Matters unrelated to decontamination (such as other modifications to the Dresden facility required prior to restart) were explicitly excluded from this hearing. Id.
The Commission has also found that the public interest does not require a hearing on the Final Environmental Statement issued by the Staff on October 17, 1980 for the Dresden Unit 1 decontamination project.
Id_. at 11-12.
In recognition of these Commission-imposed constraints, this Licensing Board's October 9, 1981 order directed petitioners to confine their contentions to the matters specified by the Comission under the heading " Scope of Hearing" in its September 28, 1981 Memorandum and Order.
2.
Petitioners' Joint Contentions Petitioners' amended petition contains nineteen proposed contentions if subparts are treated as separate contentions.
The Staff's response to each of these proferrad contentions is set forth below.
a.
Contention A.1 Petitioners' Contention A.1 states:
"There has not been an adequate evaluation of the impact of the proposed decontanination if Dresden Unit 1 is to be restarted in 1986 or later [oecause] [i]t has not been demonstrated that the extended period between decontamination and start up will not increase the likelihood of increased corrosion of bolts and valves in the core support system or of metal in the vessel clad or any creviced areas or pockets."
As the Staff interprets this contention, petitioners assert that Dresden Unit 1 may be rendered unsafe for future operation by corrosion of metals within the primary coolant loop which may take place during the extended lay-up period following decontamination.
The Staff submits
. that this. contention is within the scope of this proceeding as established by the Cc= mission and satisfies the requirements of 10 CFx i 2.714(b).
Contention A.1 should be admitted.
b.
Contention A.2 "There has not been an adequate evaluation of the impact of the proposed decontamination if Dresden Unit 1 is to be restarted in 1986 or later [because] [t]here has been no demonstration that the final inspection criteria of the materials in the reactor coolant pressure boundary will be adequate to insure the safe resumption of operation."
Contention A.2 is too vague to be admitted in its present form.
Commission regulations require that the basis for a contention be stated with reasonable specificity.
10 CFR % 2.714(b).
From Contention A.2 as stated, it is not possible to determine whether petitioners are asserting merely that the licensee will be unable to detect the phenomena asserted in Contentions A.1, A.3 and A.4 (causing the facility to be unsafe when restarted) or whether tne term " final inspection criteria" means some-thing else entirely.
The parties are entitled to be put on notice of what they will have to defend against or oppose.
Philadelphia Electric Company, et al., ALAB-216, supra.
As presently stated, Contention A.2 fails to provide that information and it should be rejected for failure
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to meet the specificity requirement of 10 CFR 9 2.714(b).
c.
Contention A.3 "There has not been an adequate evaluation of the impact of the proposed decontamination if Dresden Unit 1 is to be restarted in 1986 or later [because] [1]t has not been demonstrated that the extended lay-up after decontamination will not exacerbate any stresses or cracks al' eady existing'and/or induced by the decontamination."
The Staff understands this contention to be an assertion, similar to Contention A.1, that Dresden Unit I may be rendered unsafe for future e '
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operation by the creation or exacerbation of stresses or cracks in metals within the primary coolant loop which takes place during the extended lay-up period following decontamination.
The Staff submits that, like Contention A.1, this contention is within the scope of this proceeding as established by the Commission and satisfies the require-ments of 10 CFR 5 2.714(b).11/ Contention A.3 should be admitted.
d.
Contention A.4 "There has not been an adequate evaluation of the impact of.the proposed contaminatior if Dresden Unit 1 is to be restarted in 1986 or later [because] [t]here has been no demonstration that the decontamination will neither induce nor increase the likelihood of stresses or cracks developing in materials embrittled by more than 15 years of exposure to radiation; evaluation of potential embrittlement problems has been ordered by the NRC for other reactors."
Petitioners' Contention A.4 appears to particularize (and provide a better basis for) the allegation contained in Contention A.3 by high-lighting the effect of decontamination on those metals which may have-been enbrittled by extended exposure to radiation.
In the Staff's view, Contention A.4 is within the scope of this proceeding as established by the Commission and satisfies the requirements of 10 CFR 9 2.714(b).
The Staff suggests that Contentions A.1, A.3 and n.4 be admitted as a single contention in this proceeding.
11/ The Staff notes that petitioners have not provided a basis for the assertion that " stresses or cracks" already exist within the primary coolant loop of Dresden Unit 1.
However, because the Safety Evaluation Report evaluates the effect of decontamination on possible stresses and cracks, this contention is acceptable without amendment at this time.
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Contention A.5 I
"There has not been an adequate evaluation of the impact of the proposed decontamination if Dresden Unit 1 is to be restarted in 1986 or later [because] [t]here has been no demonstration that any alternatives to decontamination are not preferable to the proposed method in light of the decrease in the remaining years of operation if the unit is c.ot restarted until 1986 (the operating perait-expires in 1996)."
Petitioners' Contention A.5 appears to allege that a decrease in remaining years of operation which may result from CECO's decision to defer restart of Dresden Unit 1 until 1986 should have been considered 1
in the NRC's environmental evaluation of alternatives to this chemical decontamination proposal.
This contention is beyond the scope of this proceeding as-established by the Commission's Memorandum and Order of September 28, 1981. Alternatives to this chemical decontamination pro-posal were analyzed in detail (at pages 2-6 through 2-11 and 5-1 through 5-4) in the NRC's FES issued in 3ctober,1980.
Petitioners' request for a hearing on the FES was denied explicitly in the Commission's itemorandum and Order of September 28, 1981 (slip op. at 11-12).
Contention A.5 is nothing more than an improper attempt to litigate the adequacy of the FES-in this proceeding and it is inadmissible for that reason.
f.
Contention A.6 "There has not been an edequate evaluation of the impact of the proposed decontamination if Dresden Unit 1 is to be restarted in 1986 or later [because] [t]here has been no demonstration that the cost of other actions 'and modifications necessary for restarting the unit will be sufficiently minimal that the total cost for restarting the reactor would be less than the ' break even renovation cost' of $105 million (Final EIS p. 8-5)"
Contention A.6 is inadmissible on several grounds.
First, this contention seeks to litigate matters - "other actions and modifications necessary for restarting the unit" -- specifically excluded from the
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- scope of this hearing by the Commission.
In this regard, the Commission
-stated in its September 28, 1981-Memorandum and Order:
"[i]f'a hearing is initiated. the Connission believes that only
. decontamination related matters should'be considered. -As CECO states, many other modifications must be completed before the plant-can return to -cperation.. The Commission did not intend to address' these other matters in this context." CLI-81-25, slip op. at.10.
For this reason, Contention A.6 is also improper under this Licensing Board's order of October 9, 1981.- Second, like Contention A.5, this contention is an impermissible attempt to litigate portions. of the FES in.this proceeding and must be rejected for the same reasons.
- Finally, the question of economic (as opposed to environmental) costs is not I
within the NRC's responsibility where there has been no showing that.
significant environmental consequences attach to the utility #s-proposal.
Florida Power & Light Company-(Turkey Point Nuclear Generating,.
Unit Nos. 3 and 4), ALAB-660,14 NRC-
'(November 30,1981), slip op.
j.
at 32; see also Consumers Power Company (Midland Plant, Units 1 and 2),
-ALAB-458,:7 NRC 155, 162-63 (1978). E g.
Contention A;7, "There-has.not been an adequate evaluation of the impact of the proposed decontamination if Dresden Unit 1 is to.be restarted in 1986 or later [because] [t]here has been no_ demonstration that the hazards analysis for the decontaminaticn and ~ post-decontamination review will be adequate for resumption'of-operation in light of~
TMI 2 and the current state'of knowledge."
Contention A.7 is too. vague to meet the specificity requirements of 10 CFR 5 2.714(b) and mast be rejected for that reason.
Petitioners fail.to state what lessonr of TMI-2 are. allegedly applicable to this -
12/ The statement in the FES to which this contention is addressed was not even a part of the NRC's cost-benefit analysis but rather a response to a comment submitted on the' draft-~ environmental statement.
W I-
.u.,,_-....
., _ _.._ _ _ _ 2
- 21.-
decontamination project and in what manner they apply.
Petitioners simi-larly fail to identify or describe what the " current state of kr.:uledge" is that they believe bears on this proposal or how it applies here; it is wholly unclear what " current state of knowledge" even means.
The parties are entitled to sufficient information to put them on notice of what they will have to defend against or oppose.
Peach Bottom, ALAB-216, supra, 8 AEC at 20.
Contention A.7 is woefully inadequate for these pur-poses and should be rejected for failure to comply with 10 CFR Q 2.714(b).
Moreover, although the meaning and thrust of this contention are wholly unclear, the contention appears to be directed toward the need to satisfy TMI-related requirements prior to restart of Dresden 1.
If indeed that is the thrust of Contention A.7, the contention is, in fact, beyond the scope of this hearing since the Commission has stated that "there is no need to now consider license modifications which may be required for a resumption of operation." CLI-81-25, slip op. at 11.
Contention A.7 should be rejected.
h.
Contentions B.1, B.2 and B.3 "There has not been an adequate evaluation of the impact of the proposed decontamination if Dresden Unit I will never be restarted.
1.
It has not been demonstrated that the proposed method of decontamination is the preferable method or if it is necessary based on environmental, health and cost considerations if the reactor is not restarted.
2.
It has not been demonstrated that decontamination is unrelated to decommissioning of the reactor.
3.
If the decontamination is not related to start-up or decommissioning then the applicant has not adequately demonstrated a need for the decontamination and for imposing any potential environmental and health impacts of the decontamination on the public."
.
- These_ contentions, taken together, assert inadequacies in the consideration of alternativas to the proposed decontamination program and inadequacies in the balancing of costs and benefits performed in the FES prepared for the decontamination licensing action.
In so doing, these contentions all seek improperly to convert this proceeding into a hearing on the FES.
The need for the decontamination of Dresden Unit 1 was discussed in Section 2.3 of the FES.
Alternatives to the proposed method of. decontamination were evaluated in Section 2.4 of the FES; alternatives to decontamination itself were analyzed in Sections 5.0 through 5.4 of that document.
As the Commission stated in initiating this proceeding, neither the. Atomic Energy Act, the flational Environmental Policy Act nor the Commission's regulations require a hearing on the FES.
Moreover, since the Staff's environmental evalua-tion of this project has been the subject of a public meeting and public comments which were reflected in the FES, the Commission found that -the public interest does not require the Commission to afford a hearing on the FES as a matter of Commission discretion.
Accordingly, the Coiamission denied the request for hearing on the FES.
CLI-81-25, slip op. at 11-12.
By proffering Contentions B.1, B.2 and B.3, petitioners i
j are attempting to obtain from this Licensing Board a hearing on the FES which the Commission has already determined should not be held.
Cuntentions B.1, B.2 and B.3 should be rejected as beyond the scope of t
1 this proceeding as established by the Commission in its September. 28,1981 Memorandum and Order.
E i
L
n.
.- 1.
Contention C "There was no adecuate demonstration that the choice of decontamination procedure both specifically and as a general alternative was not simply a rationalization as was suggested by the Advisory Committee on Reactor Safeguards on October 8,1980."
Petitioners' Contention C fails to present any comprehensible issue for litigation in this proceeding.
It is not clear what is meant by the allegation that this decontamination procedure is a " rationalization,"
nor is it clear what legal consequences flow from any such fact.J3/
gf petitioners are restating in different language their allegations that the need for decontamination has not been demonstrated and that alterna-tives to the decontamination project are not adequately evaluated, then this contention must be rejected for the reasons discussed under Conten-tions B.1, B.2 and B.3.
If something else 's intended in Contention C, the contention is unacceptably vague and the specificity requirements of 10 CFR 5 2.714(b) have clearly not been satisfied.
Contention C should be rejected.
j.
Contention D r
"The proposed decontamination is a novel procedure for a commercial reactor and thus no assurance of safety has been demonstrated."
This contention as stated fails to satisfy the basis and specificity requirements of 10 CFR 5 2.714(n).
Petitioners state in vague and l
conclusory terms that the decontamination has not been shown to be safe because.it is new.
As the Commission noted in its September 28, 1981 13/ Reference to the ACRS meeting transcript mentigned by petitioners does not illuminate the meaning of this contention.
One member of the ACRS criticized the Staff's draft environmental statement by saying tnat the conclusions in the statement were rationalized.
(ACRS Tr. 33 Oct. 3,1980)
Nowhere does the ACRS suggest that the l
decontamination procedure is a rationalization.
v Memorandum and Order, the Staff has conducted a safety review and found reasonable assurance that the health and safety of the public would not be endangered by the proposed decontamination.
Petitioners provide no information as to how or in what specific respects the proposed decon-tamination procedure is unsafe.
In short, no basis is provided for this contention, let alone a statement of basis with reasonable specificity.
Lacking these, Contention D must be rejected.
k.
Contention E "Neither the Board nor the public can properly evaluate the impact of the decontamination without more detailed information on the nature of the solvent, NS-1" Petitioners' Contention E must also be rejected for lack of specificity.
Petitioners do not allege that the use of NS-1 as a solvent is unsafe, but only that they (and the Board) cannot evaluate its impact-without "more detailed information." However, petitioners do not state what information they would find necessary or how that information would be important in evaluating the " impact of d: contamination." Petitioners must, at the very least, provide a sufficient foundation in their conten-tion to warrant its further exploration.
Peach Bottom, ALAB-216, supra; 3
Duquesne Light Company, et al. (Beaver Valley Pcwer Station, Unit No.1),
ALAB-109, 6 AEC 243, 246 (1973).
Contention E as presently constituted 4
fails to provide such a foundation and should be rejected.
1.
Contention F.1, F.2, and F.3 "The applicant and NRC Staff have not properly evaluated the potential impact of the waste generated by the decontamination.
1.
There has been no adequate evaluation of the potential for migration of chelated radionuclides, even in a dry environment, from waste temporarily trapped in a polymer matrix.
. 2.
The applicant has not demonstrated that there will not be more-migration from the chelated waste than other radioactive waste
-disposed of in the Beatty or Hanford sites.
3.
The applicant has not properly evalucted the potential for migration of chelated radionuclides following the eventual degradation of the polymer matrix which will occur after bu rial. "
These contentions are all concerned with the possibility that chelated radioactive wastes ray migrate from the site of burial at Beatty or Hanford.
Unlike Contentions B.1, B.2 and B.3, these conten-tions are not merely improper attempts to litigate the FES despite the Commission's clear statement that this proceeding is not a hearing on the FES.
These contentions appear to be within the scope of this.
proceeding as established by the Commission insofar as they encompass environmental issues raised by the proposed license amendments.
Even though they are within the scope of this proceeding, however, Con-tentions F.1, F.2 and F.3 must be rejected for failure to comply with the basis requirement of 10 CFR @ 2.714(b).
Petitioners. provide no basis for their assertion that chelated wastes will migrate nor do they identify the effects, if any, of such migration.
In the absence.of even a minimal showing of basis, Contentions F.1, F.2 and F.3 should be denied admission.
m.
Contention F.4 "The applicant and NRC Staff have not properly evaluated the potential impact of the waste generated by the decontamination
[because] [t]he applicant has not properly evaluated the environmental advantages to be derived from deactivation of the chelate complex in case of transportation accidents, leaks on site or leakage from the drums.either before or after burial."-
As with Contentions F.1, F.2 and F.3, this contention should be rejected for failure to satisfy the requirements of 10 CFR 9 2.714(b).
Petitioners have provided no basis for their assertion that
. " deactivation" of chelate complexes creates environmental advantages over not deactivating them, they have not identified these alleged advantages and they have failed to provide any basis to believe that deactivation of chelates is possible.
Because this contention' lacks a statement of basis with reasonable specificity as required by 10 CFR 5 2.714(b), the Staff opposes the admission of Contention F.4 as an issue in this proceeding, n.
Contention F.5 "The applicant and the NRC staff have not properly evaluated the
]otential impact of the waste generated by the decontamination because] [t]here was inadequata assurance that the disposal site will be able to accept all the waste from this and/or other decontaminations employing this procedure and still meet the disposal criteria described in the EIS" The Staff submits that contention F.5 is admissible insofar as it relates to the disposal of waste from this decontamination project.
The license amendment requires Ceco to dispose of the wastes generated during decontamination in a specified manner.
CECO's ability to comply with this provision is a proper subject for litigation in this proceeding.
There is no reason, however, for this Licensing Board to consider the disposal of waste from other, unspecified decontamination projects which may or may not create wastes similar to the wastes generated at Dresden.
Indeed, such a subject is beyond the scope of this Licensing Board's jurisdiction.
Nothing in the Commission's order or regulations supports such an unwarranted expansion of the issues which are litigable in this proceeding.
Beyond this, no basis has been provided for assuming that "other decontaminations employing this procedure" are contemplated or are reasonably likely to take place.
Contention F.5 should be admitted with the words "and/or other decontaminations employing this" stricken.
. ~
o.
Contention G "The EIS is deficient in that it does not adequately evaluate the potential impacts from the proposed decontamination."
For the reasons discussed earlier, contention G must be rejected as an impermissible attempt.to litigate the NRC's FES in this proceeding.
The Commission specifically excluded the FES from the scope of this proceeding in its Memorandum and Order of September 28, 1981.
- Further, Contention G lacks the specificity required under 10 CFR 5 2.714 in that
~
it fails to detail the manner in which the FES is allegedly deficient and must be denied admission for this reason as well.
See Allied-General Nuclear Services, et al. (Barnwell Fuel Receiving and Storage Station),
LBP-76-24, 3 NRC 725, 728-29 (1976).
III.
CONCLUSION Only petitioner Bridget Rorem has demonstrated that she satisfies the interest requirement of 10 CFR 5 2.714(a).
None of the remaining petitioners have demonstrated their standing to participate as a matter of right in this proceeding and none have satisfied the requirements for discretionary intervention. fis. Rorem should be permitted to intervene and her contentions A.1, A.3, A.4 (relating to the effect of decontamina-tion and extended lay-up on the metal interior of the primary cooling system) and F.5 in part (relating to CECO's ability to comply with the new license requirement concerning disposal of decontamination wastes) are admissable and should be accepted for litigation in this proceeding.
Respectfully submitted, 1
fa /04f0D-Richard J. Rawson Counsel for NRC Staff Dated at Bethesda, Maryland
- this 18th day of December, 1981.
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
COMMONWEALTH EDIS0N COMPANY Docket No. 50-10
)
(Decontamination)
(Dresden Nuclear Power Station.
)
Unit No. 1)
)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 52.713(b),
10 CFR Part 2, the following information is provided:
Name
- Richard J. Rawson Address
- U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, DC 20555 Telephone Number
- Area Code 301 - 492-7501 Admission
- New York Court of Appeals
- District of Columbia Court cf Appeals Name of Party
- NRC Staff U.S. Nuclear Regulatory Commission Washington, DC 20555 4-/ 0 Richard J. Rawson Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of December,1981.
1 a
LWIIED STATES OF A> ERICA NCCIEAR REGLLUORY COMISSION BEFORE THE ATOIIC SAFETY AND LICENSING BOARD In the Matter of
)
)
COMONMIH EDISON CO!PANY
)
Docket No. 50-10
)
(Dresden Nuclear Power Station,
)
thit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PETITI0tlERS' AMENDED PETITION AND INITIAL CONTENTION" and " NOTICE OF APPEARANCE" 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 18th day of December, 1981:
- John H. Frye, III, Esq., Chaiman Robert G. Fitzgibbons, Jr.
Administrative Judge Isham Lincoln & Beale Atomic Safety and Licensing Board OneFI.rstNationalPlaza U.S. Nuclear Regulatory Comission Suite 4200 Washington, DC 20555 Chicago, Illinois 60603 Dr. David L. Hetrick
- Atomic Safety and Licensing Board Administrative Judge U.S. Nuclear Regulatory Comission Professor of Nuclear Engineering Washington, DC 20555 Lhiversity of Arizona Tucson, Arizona 85721
- Atomic Safety and Licensing Appeal Board Panel
-Dr. Robert L. Holton U.S. Nuclear Regulatory Comission Administrative Judge Washington, DC 20535 School of Oceanography Oregon State University
- Docketing and Service Section Cervallis, Oregon 97331 U.S. Nuclear Regulatory Comission Washington, DC 20555 Daniel Mintz, Esq.
59 East Van Buren Street Suite 1600 Chicago, Illinois 60605 Martha E. Gibbs Isham, Lincoln & Beale One First National Plaza O
Suite 4200
~ ' Richard J/ Rawson' Chicago, IL 60603 Counsel for NRC Staff e
~-
y,,-
-+7
-