ML20041C493
| ML20041C493 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 02/26/1982 |
| From: | Bloch P, Kline J, Shon F Atomic Safety and Licensing Board Panel |
| To: | OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| References | |
| ISSUANCES-OL, NUDOCS 8203020078 | |
| Download: ML20041C493 (6) | |
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- 02 FEB 26 P3:37 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h{
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w ATOMIC SAFETY AND LICENSING BOARD
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Before Administrative Judges:
Peter B. Bloch, Chairman Dr. Jerry frie Mr.Frederj i
p? pMgfl.$ V3 50-441-OL Dof t Nos. 50-440-OL In the Matter of
.. 9 CLEVELAND ELECTRIC ILLUMINATING i
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COMPANY, et al.
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February 26, 1982 yf (Perry Nuclear Power Plant, Units 1 MEMORANDUM 7)
~~(Concerning Late-Filed Contentions: Waste Disposal and Ng02 Bricks)
On November 21, 1981, Ohio Citizens for Responsible Energy (OCRE) requested leave to file two late contentions, one with respect to the likelihood that nuclear waste will be disposed of effectively (waste aisposal contention) and one with respect to the need for magnesium oxide (Mg0 ) bricks beneath the reactor vessel (core catcher contention).
2 Cleveland Electric Illuminating Company (applicant) and the staff of the I
Commission (staff) have responded to these contentions; and, on January 13, 1982, OCRE replied, pursuant to our specially adopted requirement that such replies must be filed.
Le have decided not to ' admit either of these late contentions into this proceeding.
However, we suggest possible avenues which OCRE may explore to obtain a determination concerning its core catcher contention.
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I WASTE DISPOSAL CONTENTION GCRE Contention #15 is:
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8203020078 820226 PDR ADOCK 05000440 0
P New Contentions 2 The Applicant has not provided reasonable assurance that it will be able to safely store and/or dispose of the radioactive materials that will be generated by Perry Nuclear Power Plant.
See 10 CFR section 50.57(a)(3) and 42 U.S.C. section 4332(2)(C)(1976).
That this matter poses serious concerns for the health and environment of OCRE members is undisputed.
Vermont Yankee Nuclear Power Corp. v N.R.D.C. 435 U.S. 519 (1978).
OCRE alleges a basis for this contention by citing N.R.D.C. v N.R.C. 547 F2ds 633, 641 (1978) and NUREG-0782.
We need not decide whether or not there is an adequate basis for this contention.
Its adjudication is beyond our jurisdiction by explicit direction of the Commission, which stated, in announcing the initiation' of a rulemaking concerning the disposal of radioactive waste:
During this proceeding the safety implications and environmental impacts of radioactive waste storage on-site for the duration of a license will continue to be subjects for adjudication in individual facility licensing proceedings.
The Commission has decided, however, that during this pioceeding the issues being considered in the rulemaking should not be addressed in individual licensing proceedings.
These issues are most appropriately addressed in a generic proceeding of the character here envisaged.
Furthermore, the court in the State of Minnesota case L5 tate of Minnesota v. N.R.C.
602 F.2d 412, 419 (C.C.D.C.1979)] by remanding this matter to the Commission but not vacating or revoking the facility licenses involved, has supported the Comnission's conclusion that licensing practices need not be altered during this proceeding.
However, all licensing proceedings now underway will be subject to whatever final determinations are reached in this proceeding.
44 Fed. Reg. at 61373 (emphasis added by applicant).
See also Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and l
2), ALAB-218, 8 AEC 79, 85 (1974)(waste disposal issues are subject to a generic rulemaking proceeding and ought not to be included in individual licensing proceedings). Compare Cleveland Electric Illuminating Company, et l
al. (Perry Nuclear Power Plant, Units 1 & 2, LBP-82-1A, (January 6,1982).
(The application of existing rules concerning anticipated transients without
7 fiew Contentions 3 scram cannot be avoided because of a rulemaking proceeding which has not expressly enjoined licensing boards from considering the issue.)
OCRE pleads that the Commission's rulemaking is not " effective" and that, consequently, it has no adequate remedy other than in this proceeding.
However, OCRE has not substantiated its allegation that the rulemaking is not effective and it also misapprehends the legal setting in which we might i
addrets that question.
It would be an uphill battle under any circumstances for OCRE to persuade us that a rulemaking instituted by the Commission, which is our caster, is not effective.
However, OCRE has not even bothered to inform us of the status of that proceeding nor has it indicated why the Commission's Second Prehearing Memorandum and Order (November 9,1981)--cited in footnote 3 of applicant's response--does not demonstrate that substantial progress is being made.
Indeed, there would seem to be little sense in our beginning to litigate these issues here af ter extensive evidence has already been received in the rulemaking proceeding; and OCRE fails to persuade us that there is any reason to believe that we can be any more effective than can the Commission in that parallel proceeding.
We also note that 0CRE relies on a portion of an appeals court decision which was overruled.
It states that N.R.D.C. v N.R.C. 547 F.2d 633, 641 (1977) requires that issues be considered in licensing proceedings unless they have been considered in effective generic proceedings.
- However, that ground for decision was overruled by Vermont Yankee Nuclear Power Corp.
- v. ii.R.D.C. 435 U.S. 519 (1978) and similar language was not employed in the subsequent State of Minnesota Case, which was discussed by the Commission as a reason for the ongoina rulemaking proceeding.
OCRE's interest in this important issue could more appropriately have been addressed in the rulemaking proceeding. We are without authority to N
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New Contentions 4 receive its arguments here.
(We find no reason to have to rule on whether there was good cause for the late filing of this contention.)
11 CORE CATCHER CONTENTION Despite the early stage of this prcceeding and our generally forgiving attitude toward the late admission of important safety or environmental issues, we find that OCRE has not shown good' cause for the late filing of, its Contention #16, which follows:
The Applicant should include in its cantainment design for Perry Nuclear Power Plant the use of magnesium oxide bricks. While this Intervenor has not fully investigated the utilization of this material or of its mechanism, it relies upon a Wall Street Journal article (November 13,1981 at 29) to base its contention.
The article states that the reactor cores of planned off-shore nuclear plants will be surrounded by " magnesium oxide bricks to keep any core meltdown from sending radioactive debris into the sea below."
If this method is available to protect against meltdowns at sea, should/could it not be used likewise as a further containment measure at PNPP? An enhanced margin of safety is what OCRE seeks for its members.
We agree with applicant that the appearance of a newspaper article does not in and of itself create cause for late filing under the criteria set forth in 52.714. The information reflected in the cited article is not new. The idea of a core catcher is more than a decade old.
Consolidated Edison Co. of N.Y. (Indian Point Station Unit No. 2), LBP-72-16, 5 AEC 43, 52 (1971). The idea of using the core catcher for the floating nuclear plant was included in the draft Final Environmental Statement (Part III) issued in May 1978.
We agree with applicant that permitting a newspaper article, reflecting information widely available previously, to be good cause for late filing would virtually wipe out the requirement of cause.
This is unlike the appearance of a scholarly article containing new analysis.
9 New Contentions 5 However, f ailure to show good cause is not OCRE's only deficiency related to late filino.
By relying on a newspaper article without any further research and by f ailino to raise any specific issues concerning the plans for Perry, OCRE has failed to provide a basis for believing that the core catcher is needed at Perry or that OCRE has any special competence to pursue this issue.
Furthermore, OCRE does not indicate why the rulemaking on degraded core issues is not satisf actory as a forum for its concerns.
Consequently, af ter balancing the f actors related to late filing, we conclude that the applicable criteria have not been met.
(We need not decide whether the criteria coverning the Emergency Core Cooling System necessarily exclude this contention, which OCRE relates to the sufficiency of the containment.)
Because of its concern with this issue, OCRE should be informed of the issuance of John L. Darby ('aandia National Laboratories) A Review of the Acplicability of Core Retention Concepts to Light Water Reactor Containments (NUREG/CR-2155, September 1981).
That NUREG/CR has no official standing in this proceeding.
Furthermore, its conclusions appear to be adverse to CCRE's contention. However, if OCRE can revise its contention and meet the criteria for late filing based on a careful, scholarly review of the l
l analysis in that docur.ent, it may wish to move for the admission of a new, substantially revised contention on this subject. While repetitive late filings on the sane subject are not encouraged, we might choose not to exclude a contention w'aich demonstrated, based on an understanding of the Perry Plant and of available technical information, that a serious safety pechlem exists which could be effectively aneliorated by some practicable l
form of core catcher.
See also Proposed Policy Statement on Safety Goals for Nuclear Power Plants (February 11,1982), slip op. at 13 ("the l
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New Contentions 6 Commission also recongizes the importance of mitigating the consequences of a core-melt accident").
OCRE may be able to raise this issue in an appropriately drafted petition to the Director of Nuclear Reactor Regulation pursuant to 10 CFR 42.206 0RDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 26th day of February,1982, ORDERED The motions filed on hovember 21, 1981, by Ohio Citizens for Responsible Energy concerning the admission of its contentions #15 and #16 are denied. This is an interlocutory order that is not subject to appeal.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
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I'eter B.L61oclV, Chairman ADMINISTRATIVE JUDGE h
(qdrry R. K\\l'ine!
%DMINISTRATIVE JUDGE g
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Frecerick J./Shon ADMINISTRATIVE JUDGE Bethesda, Maryland l
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