ML20040D768
| ML20040D768 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 01/27/1982 |
| From: | Burger J, Burger J, Laroche W, Sanger H, Wallace L TENNESSEE VALLEY AUTHORITY |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-664, ISSUANCES-OLA, NUDOCS 8202020235 | |
| Download: ML20040D768 (11) | |
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4 DOUETED UWC 1
'82 FEB -1 All :26 j UNITED STATES OF AMERICA
. NUCLEAR REGULATORY COMMISSION _. ,
t: , -
Before the Nuclear Regulatory Commission In the Matte of ) Docket'Nos. 50-259 OLA
) 50-260 OLA TENNESSEE VALLEY AUTHORITY ) 50-296 OLA
)
(Browns Ferry Nuclear Plant, ) (Low-Level Radioactive Units 1, 2, and 3) ) Waste Storage Facilit j ,,
S Yx TENNESSEE VALLEY AUTHORITY'S PETITI . SkiiO D FOR REVIEW 0F ALAB-664 ; FEBy -
1982 s V
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4 DECISION FOR WHICH REVIEW IS SOUGHT 03 N or The Tennessee Valley Authority (TVA) respectfully requests that the Nuclear Regulatory Commission (NRC or Commission), pursuant to 10 C.F.R. $ 2.786(b) (1981), review the decision and action of the Atomic Safety and Licensing Appeal Board (Appeal Board) (In re Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3),
ALAB-664~, 15 NRC (Jan. 6, 1982) (ALAB-664, slip op.)). The procedures established by the Appeal Board on remand will cause unwar-ranted delays in this as well as other licensing proceedings. The decision is clearly erroneous as a matter of law and directly conflicts with Commission policy as set forth in In re Statement of Policy on 3
1 Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981).
D563 The proceeding involves TVA's application to amend the i Browns Ferry Nuclear Plant operating license for the sole purpose of f[
obtaining permission for 5-year storage of low-level radioactive 9202020235 820127 w gDRADOCK 05000259 PDR
waste (LLRW) generated in the course of normal plant operation.1 In 3 response to the notice of an opportunity for hearing. dated December.11, 1980 (45 Fed. - Reg. 81,697), several persons filed identical petitions to intervene. The petitioners, through two additional filings by
-counsel (one postdating the April 10, 1981 prehearing conference),
proferred nine " contentions," eight of which sought solely to question TVA's purported future plans for volume reduction and long-term (life-of plant) storage of LLEW. TVA and the NRC staff opposed intervention =
on the grounds that none of the'nine proposed contentions sought to contest a relevant issue of fact with the required specificity of 10 C.F.R. $-2.714 (1981). In addition, TVA argued that petitioners, each of whom lived at least 30 miles from the site, lacked standing to intervene.
On October 2, 1981, the Licensing Board, as reconstituted (46 Fed. Reg. 46,032 (1981)), in a well-reasoned prehearing conference memorandum and order, denied the' petitions to intervene and requests for hearing (In re Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2, and 3), LBP-81-39, 14 NRC (1981) (LBP-81-39, slip op.)). Petitioners appealed.
On January 6,1982, the Appeal Board in ALAB-664 (served on TVA by mail on January 7) issued an unprecedented decision which vacates and remands LBP-81-39 for reconsideration of the adequacy of 1
On July 31, 1980, TVA submitted an application for onsite life-
.- of-plant storage of LLRW at TVA's Browns Ferry nuclear facility. On November 17, TVA modified the request to ask for approval only to store.LLRW for up to-five years. As permitted under NRC regulations, TVA has completed construction of several concrete modules for this purpose that stand ready for useotoday.
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petitioners' contentions (and provides petitioners with another oppor-tunity to file contentions) once the NRC staff has completed its full licensing evaluation. TVA seeks review of this action because of the Appeal Board's clearly erroneous application of the law, its failure to apply express Commission licensing policy, and the serious delays the Appeal Board's approach will inject into the already lengthy licensing schedule in this and other applicants' proceedings.
RECORD BELOW
. The Licensing Board in LBP-81-39 beld that the petitioners had stated no contention satisfying 10 C.F.R. 5 2.714 (1981) and for
, that reason dismissed the petitions. Specifically, it held that petitioners did not seriously question TVA's 3-year storage proposal (LBP-81-39, slip op. at 6), but rather focused on what appeared to petitioners to be a TVA plan for longer term LLRW management (id.).
The Licensing Board ruled that TVA's 5-year license request had immediate, independent utility and that petitioners did "not question this proposition" (id. at 7). It also held that granting the 5-year license would not prejadice future NRC action on later LLRW activities if proposed by TVA (id. at 7-8). The Licensing Board, in light of those two uncontested findings, then held that NRC's consideration of TVA's 5-year storage request did not improperly segment an LLRW manage-ment plan on the basis of Minnesota v. NRC, 602 F.2d 412 (D.C. Cir.
2 The Licensing Board declined to rule on the question of standing.
Although it found TVA's position opposing standing " interesting," the Licensing Board, in light of its decision, held that it was unneces-sary to address the issue (LBP-81-39, slip op. at 5).
3
1979) (id. at 10). Consequently, it decided that all of petitioners' contentions. based on a theory of improper segmentation must fail as outside the scope of the proceeding (id.).
As required by 10 C.F.R. $ 2.714, the Licensing Board also investigated the adequacy of each contention. Aside from the clear failure of the petitioners to raise relevant matters, many contentions were found to be too vague or were judged to raise matters outside NRC's jurisdiction. The Licensing Board said contention 9 was the only one that addressed the application for 5 year storage (LBP-81-39, slip op. at 16). This contention was found to be defective because it was impermissibly vague and raised matters beycnd NRC's jurisdiction
, (id. at 17).
WHERE THE APPEAL BOARD ERRED The Licensing Board correctly held that, under the license application before it, an inquiry into TVA's long-term LLRW management planning was improper. Its determinations that (1) the storage facility would have independent utility and (2) NRC approval of 5-year storage would not preclude effective NRC evaluation of later LLRW proposals are beyond reproach. Petitioners did not contest these two pertinent issues below (LBP-81-39, slip op. at 7) and did not even discuss them in their brief to the Appeal Board.
In remanding the proceeding for further consideration of contentions after the staff has acted on the license, the Appeal Board radically departs from all past NRC practice and injects new, 4
significant delay into the licensing process. Parties and contentions
. are to be delineated at the outset of a proceeding, not after the NRC staff has completed its licensing review. The Appeal Board's action in this respect directly contravenes NRC procedure (10 C.F.R. S 2.714 (1981)) and recent express Commission policy (In re Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981)).
Also, because petitioners did not raise or brief the two pertinent issues,3 the Appeal Board should have affirmed the Licensing Board's dismissal of the petitions (In re Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, IB, and 2B), ALAB-463, 7 NRC 341, 370 (1978)). In any event, none of the proposed contentions satisfy 10 C.F.R. $ 2.714 (clarity, precision, and specificity).
3 Appeal Board Chairman Eilperin in his lucid dissent focused directly on the pertinent issues when he found that petitioners had abandoned any interest they might have had in 5-year storage (ALAB-664, slip op. at 35-36). The Appeal Board proposals (id. at 21) to allow the petitioners to recast contentions (1) to address how 5-year storage inevitably leads to volume reduction and (2) to indicate those issues of volume reduction that cannot be addressed later rests on matters not properly raised below. The Appeal Board is under no obligation to take up these issues and, in light of the Commission's licensing policy, should not do so (In re Consolidated Edison Co. of N.Y. (Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7, 9 (1974)).
4 Petitioners argued in their appeal brief that'somewhere they have raised at least one " litigable contention." They fail to illuminate that one specific, relevant, factual issue. The Licensing Board clearly recognized that, apart from the question of scope of the hearing, many of the contentions were also defective for lack of specificity (see also tr. at 76). Petitioners cannot simply rest on an ultimate legal conclusion that TVA's planning requires NRC to do an environmental impact statement. They must indicate with precision and clarity in what way their interests would be affected and what specific aspects of volume reduction and long-term storage they seek to contest.
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' Additionally, the Appeal Board could have affirmed the dismissal because petitioners lacked standing under section 188 of the Atomic Energy Act and 10 C.F.R. $ 2.714. The petitions do not contain specific factual allegations that indicate how the license amendments would affect petitioners' interests. Cases which have found an interest based on nearness to a site involve the licensing of a nuclear facility or its high-level wastes. Thus, in this proceeding involving only a minor license amendment for LLRW storage, standing should not be automatically conferred under any geographical proximity theory.
In reaching its decision, the Appeal Board made several additional subsidiary errors. The Appeal Board completely misapplied the standards for judging independent utility under NEPA. The proper test is whether 5 year storage is needed (which no one contests.
(ALAB-664, slip op. at 11-12)) and will not result in an irretrievable commitment of resources (see, e.g., Kleppe v. Sierra Club, 427 U.S.
390 (1976); Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979); In re Duke Power Co. (Amendment to Materials License SNM-1773), ALAB-651, 14 NRC , Nuc. Reg. Rep. (CCH) W 30,613, at 29,933 (1981) (Oconee-McGuire)). The Appeal Board here in contrast erroneausly determined that it had to find that there was no " sufficient nexus" between 5-year storage and other planning options (ALAB-664, slip op. at 9).
The existence of a long-term plan is as irrelevant to this proceeding 5 National Environmental Policy Act of 1969, 42 U.S.C. $9 4321
< et seq. (1976).
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as it was in Oconee-McGuire, and the Appeal Board's statements to the contrary are wrong.6 To the extent that the Appeal Board (ALAB-664, slip op.
at 16-17) has suggested that ultimate LLRW disposal cests must be evaluated, it is wrong. Approval of the Browns Ferry operating licenses took into account these costs, since TVA would incur them regardless of whether or not it stored wastes prior to disposal (see In re Northern States Power Co. (Prairie Island Nuclear Generating Plants, Units 1 and 2), ALAB-455, 7 NRC 41, 46-47 n.4 (1978), aff'd in pertinent part and remanded on other grounds sub nom. Minnesota
- v. NRC, 602 F.2d 412 (D.C. Cir. 1979)).
Finally, the Appeal Board proposes on remand to allow peti-tioners to recast their contentions without justifying their filing a year late. This does not comport with Commission procedure. The Appeal Board cannot direct the Licensing Board to accept late-filed recast contentions (ALAB-664, slip op. at 21) without requiring peti-tioners to address the five factors required by 10 C.F.R. S 2.714(a)(1)
(In re Nuclear Fuel Servs. , Inc. (West Valley Reprocessing Plant),
CLI-75-4, 1 NRC 273 (1975); In re Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 616 n.6 (1977)).
6 The Appeal Board also erred in saying that NEPA mandates that the environmentally preferable option be implemented (id. at 17). There is no such substantive legal requirement (see Vermont Yankee Nuclear
. Power Corp. v. NRDC, 435 U.S. 519 (1978)).
7 Additionally, if TVA's assertions to the Licensing Board were meaningless as the Appeal Board suggests (ALAB-664, slip op at 13 n.8), it is illogical to assume that the Licensing Board, in later examining the adequacy of_ contentions, can use the NRC staff licensing
' documents or TVA's later required documentation (id. at 14). Thus,
- the Appeal Board's remand procedure makes no sense.
7
e MN THE COMMISSION SHOULD REVIEW ALAB-664 The Commission's policy statement on licensing (In re Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981)) means nothing if-it is not properly implemented by the Appeal Board and Licensing Board. All attempts to ensure a balanced and efficient hearing process will come to naught if the procedural rules are not'followed with some regularity.8 Petitioners have been given two chances to file adequate contentions and opportunities to explain their contentions on the record and on brief. The Appeal Board essentially ignores the require-ments of the Commission's regulations and permits the petitioners yet another occasion to recast their contentions to comply with the rules. This action misconstrues both the NRC regulations governing licensing proceedings and the Commission's policy statement. As the Commission has recognized, instead of continued unwarranted procedural delays the nuclear licensing procecs needs greater certainty and adherence to established NRC procedural regulations.
Moreover, by establishing a new procedure where a licensing board cannot rule on the adequacy of contentions until after completion of the NRC staff and safety review, the Appeal Board has turned the
, 8 An applicant and the NRC staff are entitled to a fair chance to defend. For that reason, from the outset of the proceeding petitioners must disclose what arguments are advanced with clarity and precision.
It should not be necessary to speculate. Contentions must raise contested, relevant, factual issues. Strict application of these pleading requirements is especially important in a case such as this where, absent intervention, a hearing, with its inevitable delays, would not otherwise be held (In re Consolidated Edison Co. of N.Y.
(Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7 (1974)).
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whole licensing process upside down, thereby substantially delaying future NRC evaluation of license amendments. Where persons have petitioned to intervene in the past, by the time the hTC evaluations were completed, the matter was essentially ready for trial with either the parties and issues identified or the petitions for intervention dismissed (thereby allowing the hTC staff to act on the license amend-ment without further delay). The novel procedures sanctioned by ALAB-664 inevitably will lengthen the time necessary to secure license amendments. In light of the Commission's goal of reducing licensing delays, ALAB-664 should be reversed.
For the foregoing reasons, TVA respectfully requests that the Commission review ALAB-664.
Respectfully submitted, P . , .
6n bs tf .u . x ', .
Herbert S. Sanger, Jr'. ,/
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General Counsel y Tennessee Valley Authority Knoxville, Tennessee 37902 Telephone No. 615-632-2241 FTS No. 856-2241 el . _n E. Wallacc~
Lepis / b-c Deputy General Counsel
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JamysF. Burger 3
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ci tc l W.' Walter LaRoch'e Knoxville, Tennessee Attorneys for Applicant January 27, 1982 Tennessee Valley Authority
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UNITED. STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Nuclear Regulatory Commission In the Matter of )
) Docket Nos. 50-259 OLA TENNESSEE VALLEY AUTHORITY ) 50-260 OLA
) 50-296 OLA (Browns Ferry Nuclear Plant, ) (Low-Level Radioactive Units 1, 2, and 3) ) Waste Storage Facility)
CERTIFICATE OF SERVICE I hereby certify that I have served the original and two
. conformed copies of the following document on the Nuclear Regulatory Commission by depositing them in the United States mail, postage prepaid and addressed to Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Section:
Tennessee Valley Authority's Petition for Review of ALAB-664 and that I have served a copy of the above document upon the persons listed below by depositing them in the United States mail, postage prepaid and addressed:
John H. Frye III, Esq. Stephen J. Eilperin, Chairman Administrative Judge and Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 t
. _ , . .r.
o Mrs. Elizabeth B. Johnson, Dr. John H. Buck Administrative Judge Atomic Safety and Licensing Oak Ridge National Laboratory Appeal Board P.O. Box X U.S. Nuclear Regulatory Commission Building 3500 Washington, DC 20555 Oak Ridge, Tennessee 37830 Mr. Gary J. Edles Dr. Quentin J. Stober, Atomic Safety and Licensing Administrative Judge Appeal Board Fisheries Research Institute U.S. Nuclear Regulatory Commission University of Washington Washington, DC 20555 Seattle, Washington 98195 Robert B. Pyle, Esq.
Richard J. Rawson, Esq. Suite 9, Oakwood Center Office of the Executive 4783 Highway 58 North Legal Director P.O. Box 16160 U.S. Nuclear Regulatory Commission Chattanooga, Tennessee 37416 Washington, DC 20555
. This 27th day of January, 1982.
U k de W. ' Walter 'LaRoche Attorney for Applicant Tennessee Valley Authority h