ML20053A559
| ML20053A559 | |
| Person / Time | |
|---|---|
| Site: | Dresden  |
| Issue date: | 05/21/1982 |
| From: | Fitzgibbons R COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8205260227 | |
| Download: ML20053A559 (11) | |
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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
Docket No. 50-10 COMMONWEALTH EDISON COMPANY
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(Decontamination)
(Dresden Nuclear Power Station,
)
Unit No. 1)
)
COMMONWEALTH EDISON COMPANY'S REPLY TO " PETITIONERS' RESPONSE TO MEMORANDUM AND ORDER" and " PETITIONERS' SECOND AMENDED PETITION AND INITIAL CONTENTIONS" I.
Introduction On April 6, 1982 this Licensing Board invited comments from Petitioners as to the impact on their petition and contentions of Commonwealth Edison Company's
(" Licensee's") decision to defer chemical cleaning until 1983 or 1984.
Those comments were to be provided,. at the latest, by April 27.1/
Petitioners eventually did file comments on May 10, two weeks late, without offering any explanation for their delay.2/
Petitioners also filed at 1/
The Board's April 6, 1982 Memorandum and Order directed Petitioners to comment within 15 days of the date of service (April 7, 1982), that is, by April 22.
To this, one might arguably add 5 more days, until April 27, for service by mail.
See 10 CFR S 2.710.
2/
By Petitioners own calculations, their comments were not two, but three weeks late.
See " MEMORANDUM IN SUPPORT OF PETITIONER'S (sic) MOTION FOR LEAVE TO AMEND PETITION AND INITIAL CONTENTIONS OF NOVEMBER 24, 1981" at p. 3.
go3 s
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that time a "Second Amended Petition" which attempts to remedy some of the deficienc.es in their "First Amended Petition" relating to the standing of two of petitioners, Citizens For a Better Environment ("CBE") and Prairie Alliance.
These were only a few of the deficiencies which were pointed out to Petitioners by Licensee in its Answer filed on December 18, 1981, five months ago.
" Petitioners' Response to Memorandum and Order" is not entitled to any more respect than Petitioners showed for the Board in filing it.
Petitioners' "Second Amended Petition" also shows the lack of any serious effort by Petitioners to make a substantive contribution to this proceeding.3/
However, Licensee urges this Board to make a prompt decision striking Petitioners' "Second Amended Petition".
II.
REPLY TO " PETITIONERS' RESPONSE TO MEMORANDUM'AND ORDER" The Licensing Board would of course be entitled to ignore Petitioners' comments.
For Petitioners to evade a deadline established by the Licensing Board, without any excuse or apology, much less a proper request for an extension of time, displays a total disrespect for this Board and a disregard for orderly procedures.
It also 3/
For example, the NRC Staff issued its Safety Evaluation Report in December, 1981.
Petitioners have not amended any of their proposed contentions either to reflect the informa-tion made available,to them in this report, or to express dis-satisfaction with the basis for the Staff's conclusions.
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Indicates how seriously Petitioners view their own partici-pation in a proceeding which they themselves have instigated.
Nevertheless, on the assumption that this Licensing Board will consider Petitioners' comments despite their tardiness, Licensee offers the following reply.
It is not clear to us whether Petitioners are suggesting that their comments should be litigated in this proceeding.
If so, they have made no attempt to provide the bases and specificity required for contentions by 10 CFR S 2.714.
They have not even included these issues as new contentions in their "Second Amended Petition" which was filed contemporaneously with their comments.
Since this Board has no obligation to fashion contentions for an intervenor, see Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 406 (1974), Licensee suggests that these comments not be treated as new contentions.
In fact, Petitioners' comments appear to argue only that certain statements in Mr. Stiede's affidavit provide additional support for certain of Petitioners' pre-viously filed contentions.
Petitioners are clearly mistaken.
For example, Petitioners claim that Mr. Stiede's affidavit dated March 29, 1982 " calls into question (Licensee's]
ability to fund and properly staff this operation."
To the I
contrary, Mr. Stiede's affidavit demonstrates quite clearly that Licensee is not going forward with the chemical cleaning until it can devote' the financial and other resources necessary I
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to do the job properly.
Moreover, to the extent Petitioners are seeking to litigate Licensee's financial qualifications in this proceeding, this is precluded by the NRC's recent rule changes.
See 47 Fed. Reg. 13750 (March 31, 1982); 10 CFR S 50.91.
Petitioners' second comment is that "by delaying decontamination CECO will likely push back the date when Unit 1 will be returned to service".
Of course, as the Board apparently recognized in its April 6, 1982 Memorandum and Order, it is more likely that the real effect of delaying decontamination will be to reduce any lay-up period before Unit 1 is returned to service, rather than delay Unit l's return to service.
Moreover, as we argued in our December 18, 1981 Answer, the effects of any such lay-up period following decommissioning would properly be considered as part of any restart proceeding, and is not a proper subject for this proceeding.
There is little point in arguing about the effects of a lay-up period of indeterminate length, which may in fact never occur.
Finally, despite the issuance of the NRC's Safety Evaluation in December, 1981, which includes an extensive discussion of this lay-up issue at pp.
15-17, Petitioners have done nothing to amend their contentions to explain why Licensee's and the NRC's Staff's precautions are inadequate.
Petitioners' proposed contentions A.1 and A.3 do not provide the bases and specificity required by the Commission's Rules'of Practice.
Accordingly, these proposed
[.
contentions are still inadequate and should be rejected.
Petitioners' third comment is that the increased period before chemical cleaning somehow increases the likelihood of undefined " additional problems (cracks, etc.)."
Petitioners supply no basis for their assertion and such vague speculation hardly " reinforces" their proposed contentions A.1, A.2, A.3 and A.4 as claimed.
Petitioners also question whether the disposal sites will be able to accept the waste and meet the disposal criteria described in the EIS in 1984 or later.
In the first place, as Licensee has pointed out previously and points out again at pp. 6-8 below, none of Petitioners has any legally cognizable interest in the disposal of this waste in the States of Washington or Nevada and Petitioners have no standing to raise such issues.
I 10 CFR S 2.714 (f).
Petitioners' fourth comment is a request that this Board obtain " clarification from the Nuclear Regulatory Commission as to admissibility in these proceedings, of questions related to when and if CECO intends to return Dresden 1 to commercial operation."
Petitioners fail to explain exactly what " clarification" they believe is necessary.
In the
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opinion of Licensee, the Commission's MEMORANDUM AND ORDER (CLI-81-25) dated September 28, 1981 could not be any 4
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more clear.
Restart questions are simply not within the scope of this hearing.
Moreover, in light of the tortuous, prolonged (and expensive) procedural history of this case, Petitioner's suggestion that this matter be placed back before the Commission once again is ludicrous.
In conclusion, none of Petitioners' four " comments" either constitute admissible contentions themselves, or provide reinforcement for any previously filed contentions.
As such, the " comments" should be stricken for lack of merit.
III. ANSWER TO " PETITIONERS' SECOND AMENDED PETITION AND INITIAL CONTENTIONS."
Apparently the only changes Petitioners have made in their "Second Amended Petition" are to show that two of the petitioning organizations, CBE and Prairie Alliance, are authorized to represent in this proceeding certain.of their members living within 25 and 15 miles, respectively, of Dresden Unit 1.
This cures Licensee's objections to the representative capacity of those two organizations, although Licensee still fails to see how the chemical cleaning may adversely affect the " health, safety and property" of the identified members 15 or 25 miles away as alleged.
This case, it should be remembered, does not involve reactor operations and therefore it seems unreasonable to' apply the loose pleading requirements developed for construction permit or operating' license proceedings.
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No attempt has been made to meet Licensee's objections to the standing of Petitioners Illinois Safe Energy Alliance ("ISEA"), Kay Drey, and Marilyn Shineflug.
Accordingly, Licensee still opposes their admission to this proceeding for reasons previously stated in the December, 1981 Answer.
Petitioners' "Second Amended Petition" fails to establish that any of Petitioners, or any members of the petitioning organizations, live in Washington or Nevada or have any other interest in issues relating to disposal of low level waste cognizable under NEPA or the Atomic Energy Act.
As the United States Supreme Court said in Sierra Club
- v. Morton,
- a mere " interest in a problem," no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization " adversely affected" or " aggrieved" within the meaning of the APA.
The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our a
Nation's natural heritage from man's depredations.
But if a "special interest" in this subject were enough to entitle the Sierra Club to commence tPis litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization, however small or short-lived.
And if any group with a bona
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fide "special interest" could initiate such litigation,-
it is difficult to perceive why any individual citizen with the same bona fide special interest l
would not also be entitled to do so.
The requirement that a party seeking review must allege, facts showing that he is himself adversely affected does'not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial f
1 !
process.
It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome.
That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process.
The principle that the Sierra Club would have us establish in this case would do just that.
405 U.S.
727 at 739-40 (1972) (footnotes omitted).
This reasoning is applicable to NRC proceedings.
Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 421-2 (1976).
Pe4'tioners' participation in this proceeding should be limited to issues other than waste disposal in accordance with 10 CFR S 2.714 (f).
Petitioners have apparently not amended any of their proposed contentions.
However, they have included a 1981 article by Jeffrey L. Means and Carl A. Alexander in Nuclear and Chemical Waste Management, presumably in support of their proposed contention F.4.
Petitioners do'not explain why this article could not have been supplied to the Board earlier.
Nor do they indicate whether they in fact favor any of the alternatives listed in the Means and Alexander paper.
In any event, the alternatives discussed in the paper are, as a matter of law, irrelevant.
NEPA does not authorize this Board to consider such alternatives absent a showing by Petitioners that the proposed method of disposal, despite the conclusions of the FES to the contrary, will have a significant impact on the human environment or will j
involve unresolved conflicts concerning alternative uses of i
available resources.
Portland General Electric Company l
(Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 265-266 (1979).
This Board should not let itself be drawn into moderating an
?ssentially academic dispute as to which one of several satisfactory methods of disposal is the mest satisfactory.
And as we have previously stated, Petitioners' interest in potential migration of solidified chelated wastes in a desert more than a thousand miles away is not sufficient to support the litigation of such issues in this proceeding.
Licensee urges this Board to issue its decision on Petitioners' Second Amended Petition to Intervene as soon as reasonably possible.
If a hearing is to be required, we i
believe a prehearing conference (or a telephone conference call in lieu of such a conference) should be held promptly so that the " moving target" presented by Petitioners can be fixed and a schedule for further proceedings can be established.
Respectfully submitted,
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One of the Atg rneys j for Commonweanh Edison Company ISHAM, LINCOLN & BEALE Three First National Plaza Chicago, Illinois 60602 (312) 558-7500
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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Docket No. 50-10 COMMONWEALTH EDISON COMPANY
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(Decontamination)
(Dresden Nuclear Power Station,
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Unit No. 1)
)
s CERTIFICATE OF SERVICE I hereby certify that copies of' Commonwealth Edison Company's Reply to " Petitioners' Response to Memorandum and Order" and " Petitioners' Second Amended Petition and Initial Contentions" in the above-captioned proceeding have been served upon the attached service list by deposit in the United States mail, first class, postage prepaid, this 21st day of May, 1982.
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n Robert G.
O tzgi g s Jr.
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SERVICE LIST Robert Goldsmith, Esq.
Docketing and Service 59 East Van Buren Street Office of the Secretary Chicago, IL 60605 U.S. Nuclear Regulatory Commission Lawrence Brenner, Esq.
Washington, D.C.
20555 Office of the Executive Legal Director Leonard Bickwit, Esq.
U.S. Nuclear Regulatory Office of the General Counsel Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Office of the Attorney General State of Illinois John H. Frye, III Environmental Control Division Atomic Safety and. Licensing 188 West Randolph St.
Board Chicago, IL 60601 U.S. Nuclear Regulatory Commission Richard E. Fenske Washington, D.C.
20555 635 Forest Avenue Oak Park, IL 60302 Dr. David L.
Hetrick Professor of Nuclear Engineering Samuel J. Chilk, Secretary University-of Arizona U.S. Nuclear Regulatory Tucson, Arizona 85721 Commission Washington, D.C.
20555 Dr. Robert.L. Holton School of Oceanography Atomic Safety and Licensing Oregon State University Appeal Board Panel Corvallis, Oregon 97331 U.S. Nuclear Regulatory Commission Washington, D.C.
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