ML20053D057
| ML20053D057 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 06/01/1982 |
| From: | Brenner L, Cole R, Morris P Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8206040011 | |
| Download: ML20053D057 (160) | |
Text
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0 :', / h I { l I-UNITED STATES OF AMERICA NUCLEAR REGULATORY COM4ISSION
'82 mi -2 P2 :25 ATOMIC SAFETY AND LICENSING BOARD OU r C C X~
Before Administrative Judges Lawrence Brenner, Chairman Dr. Richard F. Cole Dr. Peter A. Morris In the Matter of
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Docket Nos. 50-352 OL
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50-353 OL PHILADELPHIA ELECTRIC COMPANY
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(Limerick Generating Station, Units 1 and 2)
SPECIAL PREHEARING CONFERENCE ORDER June 1, 1982 d
503 b
s l l A no1
?. $O" 8206040011 B20601 PDR ADOCK 05000352 O
o TABLE OF CONTENTS Page I.
INTRODUCTION AND BACKGROUND.........................
1 II.
STANDING............................................
3 A.
General Principles..............................
3 B.
Marvin I.
Lewis.................................
11 C.
Joseph H. White, II1............................
12 0.
John Shniper....................................
13 E.
Air and Water Pollution Patrol / Frank Romano....
14 F.
Keystone Alliance...............................
16 G.
Lime r i c k Eco l o gy Ac t i o n.........................
18 t
H.
Friends of the Earth in the Delaware Valley /
Robert H.
Anthony...............................
18 I.
Del-Aware Unl imi ted, Inc........................
20 J.
Consumers Education and Protective Association..
21 l
l K.
National Lawyers Guild, Philadelphia Chapter....
23 i
L.
Graterford Prisoners............................
31 M.
William A.
Lochstet.............................
33 l
[
N.
Environmental Coalition on Nuclear Power........
42 Radon...........................................
46 Waste Confidence................................
47 0.
Interested Government Agencies..................
49 i
t 1
1 e
I
Page III. CONTENTIONS CONCERNING THE SUPPLEMENTARY COOLING WATER SYSTEM................................
50 50 A.
Background......................................
B.
Effec't of NRC Decision at the Construction 53 Permit Stage....................................
C.
Effect of Consideration by Other Agencies.......
62 D.
Portion of the Neshaminy Water Supply System to be Co n s i d e red by NRC.........................
73 81 E.
Impacts of Construction.........................
F.
Particul ar Contentions..........................
90 101 IV. OTHER CONTENTIONS...................................
A.
General Discussion..............................
101 B.
Probabilistic Risk Assessment (PRA) Contentions.
103 C.
Other Group I Contentions.......................
113 0.
Group II Contentions............................
138 E.
Group III Contentions...........................
139 141 F.
Group IV Contentions............................
G.
Group V Contentions Other than those Concerning the Supplementary Cooling Water System..........
143 i
H.
Group VI Contentions............................
152 153 I.
Group VII Contentions...........................
J.
Emergency Planning (Group VIII) Contentions.....
155 157 V.
DISC 0VERY...........................................
VI. RECONSIDERATION AND APPEAL..........................
159 l
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t
SPECIAL PREHEARING CONFERENCE ORDER I.
INTRODUCTION AND BACKGROUND On August 21, 1981, notice was published in the Federal Register that the Nuclear Regulatory Commission (NRC or Commission) had received an application from the Philadelphia Electric Company (Applicant or PEco) for operating licenses for the Limerick Generating Station.
46 Fed. Reg. 42557 (1981). The notice statea that any interested person could file a petition for leave to intervene. Several such petitions were received.
On October 14, 1981, this Board issued an order indicating that oetitioners were to "use their best efforts to coordinate the filing of contentions" and to file a joint statement of contentions if possible.
In the same order, the Board requested more information from several petitioners.
On November 9, 1981, the Board ordered r[
r[SamuelandClarissaCooper 2
1 that Clarence Wells 1/ The Board subsequently received a letter from Mr. Wells dated November 2, 1981 indicating that he did not wish to participate in this proceeding.
2/ Subsequent to our order of November 9, 1981, as reflected in our
" Memorandum and Order Specifying Agenda for Special Prehearing Conference" at 2 (December 24,1981), we received a series of letters from the Coopers. These letters did nothing to clarify whether they were seeking status as intervenors, despite our request that they provide such clarification.
Notwithstanding this, our order of December 24, 1981 gave the Coopers another chance to attend the special prehearing conference and
... explain whether they intend to seek formal status as intervenors, and if so to explain why they apparently have ignored the Board's previous orders."
By letter dated January 2,
[Footnotecontinued.]
. Steven Levin, and Helene Greenstein not be considered petitioners for intervention in light of their failure to respono to its order of October 14 to clarify whether they were seeking intervention or making a limited appearance statement pursuant to 10 CFR 2.715(a).
At that time, the Board also indicated that a letter received from Charles Bruce Taylor would be considered a limited appearance statement unless he filed a response by November 17, 1981.
Having received nothing further from Mr. Taylor, the Board rules that he is not a petitioner for intervention in this proceeding.
Contentions were filed by petitioners, who had coordinated as requested by the Board, in a single filing dated November 24, 1981.
In addition, the Environmental Coaliticn on Nuclear Power (ECNP) filed two of its own contentions in a filing dated November 22, 1981.
In that filing, ECNP also indicated it wished to adopt as
[Footnotecontinued.]
1982 (See Tr. 22-23), the Coopers declined the opportunity to appear at the prehearing conference. The letter again failed to clarify the status they are seeking.
However, it set forth in terms clearer than their previous letters that their asserted interest is not in impacts from the facility, but rather as ratepayers interested in the ecnnomic effect on the customers of the Applicant.
( A review of a map discloses that the Coopers' home, Colora, Maryland, is about fifty miles from the facility.
According to the Coopers, they are electrical customers of the Applicant.)
Even if we assume arguendo that the Coopers are seeking to intervene, and if we further ignore arguendo their l
disregard of Board orders and the schedule for contentions, their asserted interest as ratepayers is not cognizable in this l
and enviromental proceeding.
radiological health and safety (Pebble Springs, Units 1 and Portland General Electric Co.
2), CLI-76-27, 4 NRC 610, 614 (1976). Accordingly, the Coopers are not permitted to intervene as a party to this proceeding.
l
[
3-its own all the contentions in the filing of the coordinated intervenors.
A Special Prehearing Conference was held January 6-8, 1982 to consider the contentions and to clarify certain matters concerning the status of petitioners. All petitioners were present or represented except for Mr. John Shniper.3_/
This order, addressing matters cc.isidered at the prehearing conference, rules on the petitions for intervention and the admissibility of the proposed contentions.
II. STANDING A.
General Principles Commission regulations require that petitioners for intervention set forth in their petitions their interest in the proceeding, how that interest might be affected by the result of the proceeding, the reasons why they should be permitted to intervene,
-3/ Subsequently, in response to an Order Directing Petitioner John
~
Shniper to Show Cause Why He Should Not Be Dismissed For Default (Jan.27,1982), Mr. Shniper explained that his failure to attend was caused by his father's death on January 4, 1982. See Response to Show Cause Why He Should Not Be Dismissed F6r Default
( Feb. 1, 1982). While we understand that Mr. Shniper was not thinking about this proceeding at such a time, we expect parties who are unable to atten_d a hearing in which they are expected to participate to notify the Board in Myance of the circumstances.
Should that prove to be impractical, as in this instance, we expect the party to provide the Board with an explanation as soon afterwards as possible.
. and the specific aspects of the subject matter as to which intervention is sought.
10 CFR 2.714(a)(2).4/ Whether the interests alleged are sufficient for intervention as a matter of right is governed by current judicial concepts of standing.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 612 (1976). Under these standards, the petition must disclose " injury in fact" and an interest
" arguably within the zone of interests" protected by the statute.
_Id. at 613.
In addition to demonstrating standing, a petitioner must advance at least one admissible contention in order to be permitted to intervene in the proceeding.
4/ As indicated in our Order of October 14, 1981, at 13-14, this Board believes that a petition cannot be dismissed in advance of the time provided by the 10 CFR 2.714(b) of the regulations on the grounds that the petition has failed to set forth the specific " aspects" of the subject matter of the proceeding as to which petitioner wished to intervene pursuant to Section 2.714(a)(2). The responses of the Staff and Applicant which we invited disagree with the Board's view, but fail to support their disagreement with any legal prescription or practical effect under Section 2.714. There appears to be no dispute that contentions supersede the more preliminary phase of " aspects."
Since we are ruling on both standing and contentions in this order, the need to decide whether there were adequate " aspects" originally set forth by petitioners is moot. However, even if we had ruled on standing prior to contentions, we would have done so based solely on asserted interests, subject to satisfaction of the later requirement of Section 2.714 that at least one contention be set forth. Arguably, in a situation where a j
petitioner is seeking discretionary intervention, identification l
of " aspects" at the time of the original petition setting forth l
interests would aid a Board's inquiry. However, in practice, close decisions on discretionary intervention require inquiry inta the greater detail included in a contention, as compared to the summary labeling of an " aspect" of the subject matter.
l i
. Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424 (1973).
Applicant argues that the requirement of injury in fact can be satisfied only by a demonstration that a petitioner has suffered an injury markedly different from that suffered by everyone residing close to the reactor. See Applicant's Answer to Marvin I. Lewis Petition to Intervene (September 18, 1981); Tr. 88-95.
Applicant admits that residence in close proximity to the reactor site has been held by the Appeal Board to create, at a minimum, a presumption of standing to intervene, but Applicant argues that this must be coupled with a " personalized showing" of harm.
For this proposition, Applicant cites the Commission decision in In re Ten Applications for Low-Enriched Uranium Exports to EURATOM secher Nations (Transnuclear, Inc), CLI-77-24, 6 NRC 525, 530-31 (1977), and the Opinion of Chairman Ahearne and Commissioner Hendrie in Westinghouse Electric Corp. (Export to South Korea),
CLI-80-30, 12 NRC 253, 258 (1980).
It is true that the Supreme Court in Warth v. Seldin, 422 U.S.
490 (1975), said that "when the asserted harm is a ' generalized grievance' shared in substantially equal measure by all or a large l
l class of citizens, that harm alone does not warrant exercise of jurisdiction."
Id. at 499. That principle, however, has been l
applied when virtually every American shares the generalized grievance. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.,
U.S.
, 71 l
l t
. L. Ed. 2d 214 (1982) (no standing as citizens whose constitutional rignts under the Establishment Clause had been violated by transfer of government property to religiously affiliated school);
Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974) (no standing as citizens to sue over violation of Incompatibility Clause resulting from numbers of Congress holding
'ommissions in the military reserves); United States v. Richardson, 418 U.S. 166 (1974) (no standing as voter to challenge parts of CIA Act as violative of the Accounting Clause); Frothingham v. Mellon, 262 U.S. 447 (1923) (no standing as taxpayer to challenge as unconstitutional Maternity Act).
In Valley Forge Christian College, supra, the Supreme Court explained that its holding that respondents lacked standing avoided l
a situation in which every citizen would have standing to challenge any governmental action as unconstitutional.
U.S. at
, n.26; 70 L. Ed. 2d at 720, n.26.
Similarly, in the Transnuclear case, the Commission indicated that if standing had been granted to petitioners, it would have meant that all United States citizens could have standing. 6 NRC at 531.1/
l 5/ In addition, the Commission found that Petitioners in the l
i Transnuclear case had failed to establish a causal link between the NRC action and their alleged injury.
See 6 NRC at 531-32.
In order for there to be injury in fact suTTTcient for i
Constitutional standing, the injury must be fairly traceable to See Duke Power Co. v. Carolina Enyt'l the challenged conduct. -
Study Group, 438 U.S. 59, 77 (1978); Simon v. Eastern Ky Welfare Rights Organization, 426 U.S. 26, 41 (1976).
t
1 5
The injuries which may be caused by residence in proximity to the Limerick reactor are not so universal that any United States citizen may suffer them.
Petitioners residing at great distances from reactor sites have been found not to be threatened with injury to their health or safety. _See Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), ALAB-497, 8 NRC 312, 313 (1978)
(residence 75 miles from site not sufficient interest for standing as a matter of right); Public Service Co. (Black Fox Units 1 and 2),
ALAB-397, 5 NRC 1143, 1150 (1977) (intervention denied to petitioner residing 125 niles from site).
Itisonlyresidentslivinginclose-('3 proximity to a reactor who are presumed to be threatened with injury "
/
by it. See Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALA8-522, 9 NRC 54, 56 (1976).
So f ar as this Board is aware, standing based on residence alone has neverbeenextendedbeyondfiftymiles.5/
j Although the Suprene Court has indicated that a generalized grievance is not sufficient injury to warrant standing, it has l'
also recognized that the f act that many others are similarly injured should not preclude standing, in United States v. Students
?
4 Challenging Regulatory Agency Procedures (SCRAP I), 412 U.S. 669 (1973), the Court stated, "To deny standing to persons who are in 6/Fiftymileshasbeenheldtobe"notsogreat[adistance]as necessarily to have precluded.a tinding of standing based upon residence...". See Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421, n.4 (1977).
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/,
f act injured simply because many others are also injured, would mean that the most injurious and widespread government actions could be questioned by nobody. We cannot accept that conclusion."
Id. at
~
683. SCRAP I involved esthetic (impact of litter) and health (increased air pollution) injuries.
Such injuries are much more-akin to the environmental, health, and safety injuries commonly t
fs alleged in a nuclear-licensing case than are the injuries to an e
i h
.lindividual's right to a government acting Constitutionally wh ch t e Supreme Court has rejected as a basis for standi
~g.
I l}s s,
The Commission and the Appeal Board have s} ilarly recognized
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.s that an injury may be shared by many and still form the basis for
.y standing. See Edlow International Co. ( Agent for the' Government of India on Application to Export Special Nuclear Material), CLI-76-6,
-r'
/
3 NRC 563, 576 (1976); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-150, 6 AEC 811, 812-13 (1973). Although the alleged injury to health and sStety may be shared equally by all those residing near the reactor, it can form the basis for standing.
~
(
?
Interventjon is clearly contemplated in nuclear' licensing l
procNdings, but if naarby residents fearing' fo'r their health and s
safety cannot establish ~ standing to intervene,'who can do so?
Both the Transnuclear and the Westinghodse_scases, cited by Applicant in support of the position that residence near the plant is insufficient for standing, involve export licensing.
The Applicant suggests that the Commission has not distinguishe'd standing requirements for export licensing from standing I
. requirements for other proceedings.
We disagree.
The Commission has recognized that export licensing matters involve " sensitive questions of the nation's conduct of foreign policy" and that
"[t]he accommodation of deeply felt national interests recuires a process of international negotiation, clarification and adjustment which does not fit an adjudicatory format or timetable."
Edlow International, 3 NRC at 570.
See also, Transnuclear, 6 NRC at 530.
In deciding to take, therefore, a restrictive view of standing for matters of export licensing the Commission distinguished licensing proceedings for domestic reactors, noting, "for domestic licensing our licensing buards have recognized claims of risk which may be considered somewhat remote as a basis for intervention."
In addition, analogizing FCC procedures for granting a broadcast license to NRC procedures for granting a domestic license, the Connission distinguished them from export licensing procedures by l
stating:
The proceeding there saw the FCC in its central licensing function, comparable to a construction permit proceeding before this agency, and a function in which adjudication was the expected and appropriate mode of decision.
The petitioners there, representatives and residents of local viewers, had a direct and personal stake in the outcome which sharply differentiated them from the nation's citizenry as a whole.
Here adjudication is not a normal mode, in part because of the foreign relations considerations.
Edlow International, 3 NRC at 571 (emphasis added).
In conclusion, residence near a nuclear power plant, coupled with allegations of threatened injury to health and safety or the l
i l
. environment of P petitioner, is sufficient to establish the interv. sessary to intervene in an operating license proceeding.
If a petition does not disclose sufficient interests for the petitioner to be granted intervenor status as a matter of right, intervention may still be granted at the discretion of the Board.
Pebble Springs, 4 NRC at 616.
Such discretionary intervention is more readily granted when " petitioners show significant ability to contribute on substantial issues of law cr 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 to consider them."
Id_. at 617.
Some of the factors to be considered in deciding whether discretionary intervention is warranted are:
(1) the extent to which the petitioner's participation will 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 an order may have on the petitioners interest; (4) the availability of other means to protect the l
petitioner's interest; j
(5) the extent to which other parties in the proceeding will represent the petitioner's interest; and (6) the ex' tent to which the proceedings would be I
inappropriately delayed or. broadened by petitioners i
participation.
l Id. at 616; 10 CFR 2.714(a) and (b).
. Having indicated the general principles which govern our evaluation of the petitions, we now consider in turn the adequacy of the-interests set forth in each one.
Unless we indicate otherwise, petitioners who have satisfied the standing requirements also have submitted at least one admissible contention and are, therefore, granted intervenor status in this proceeding.
Because there are petitioners in this proceeding who have satisified the requiements for intervention, there will, as we indicated at the Prehearing Conference, be a hearing on the application.
Tr. 5.
B.
Marvin I. Lewis The NRC received a petition to intervene from Marvin I. Lewis on September 8, 1981.
Mr. Lewis lives in Philadelphia, Pennsylvania approximately 25-30 miles from the Limerick plant.
The Staff believes his petition satisfies the requirements for standing to intervene. The Applicant argues that Mr. Lewis has failed to l
l establish injury in fact.
Mr. Lewis' intervention petition discloses that he resides in l
Philadelphia, within fifty miles of the Limerick site, and is concerned for his health and safety.
His proposed contentions l
reveal the aspects of the proceedings in which he is interested and how he believes his alleged interest may be affected. The Board i
i
.._m
. finds he has established his interest in the proceeding, and he is admittedasanintervenor-((
C.
Joseph H. White, III A timely petition to intervene was received from Joseph H.
White, III on September 25, 1981. The Staff believes that Mr. White has standing to intervene. The Applicant opposes intervention by Mr. White, stating that he fails to state a particular injury on which to base standing and to identify the aspects of the proceeding in which he is interested.
Mr. White lives in Bryn Mawr, Pennsylvania, which is approximately 25-30 miles from the plant.
He alleges his health and safety will be endangered by the plant's operation. Specifically, he indicates that he is concerned about the quality of his food supply if-Limerick operates. These allegations are sufficient to j
establish his interest in this proceeding.
Moreover, his proposed contentions indicate those aspects of the proceeding which concern l
l 7/ Mr. Lewis also alleges that he will suffer economic injury in that his pension fund has invested in the Applicant and operating Limerick will harm the Applicant financially. This type of purely economic injury cannot be the basis for standing in an NRC
-licensing proceeding. Houston Lighting and Power Co. ( Allens Creek Nuclear Generating Station, Unit 1), ALAB-582,11 NRC 239, 242 (1980).
l l
l I
l
B
. him.
Mr. White has satisfied the requirements for standing in this proceeding and, therefore, is admitted as an intervenor.8/
D.
John Shniper On September 24, 1981, a petition to intervene was received from John Shniper, an attorney seeking intervention on his own behalf. Subsequently, on October 16, 1981, a Supplemental Petition to Intervene was also received from Mr. Shniper.
Mr. Shniper avers that he both lives and works within ten miles of the Limerick site.
In his Supplemental Petition, he clearly states that he is concerned about radioactive emissions from the plant affecting his health and that of his children. Although not essential for standing, he further indicates the mechanisms by which he and his family could be exposed to such emissions.
This is sufficient to show how he could be injured by operation of the plant and to establish his standing to intervene.
Moreover, it is clear from his pleading what aspects of the proceeding concern him.
However, as discussed below, none of the proposed contentions filed by Mr. Shniper (Contentions III-2 and V-10) satisfies the requirements for admission in an operating license proceeding.
Because Mr. Shniper has failed to propose even.
one admissible contention, he is denied intervenor status in this proceeding.
1 8/ Mr. White also alleges several other grounds for standing in this proceeding.
Since we have found he has standing, we need not
. consider these alternate bases for standing.
. E.
Air and Water Pollution Patrol / Frank R. Romano On September 8,1981, Frank R. Romano filed, a Petition For Intervention on behalf of himself, his f amily, and the Air and Water Pollution Patrol (AWPP) of which he is Chairman. The Staff considered the petition only in terms of a petition for intervention by the organization and concluded that standing had been shown. The Applicant, on the other hand, concluded that the requirements for standing had not been satisfied either for the organization or for Mr. Romano as an individual.
Special requirements must be met in order for an organization to have standing. The organization must show injury either to its organizational interests or to the interests of members who have authorized it to act for them.
See Warth v. Seldin, 422 U.S. 490, 511(1976); Sierra Club v. Morton, 405 U.S. 727, 739-40 (1972);
Consumers Power Co. (Palisades Nuclear Plant), LBP-79-20,10'NRC 108, 113 (1979).
If it is depending upon injury to the interests of' its members to establish standing, the organization must provide with its petition identification of at least one member who will be injured, a description of the nature of that injury, and an authorization for the organization to represent that individual in the proceeding. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 390-96 (1976).
Four affidavits were filed with the Petition for Intervention.
2 4
Each of the affiants alleges concern about the health and welfare of members of the Air and Water Pollution Patrol and of the affiant's
. family.
The affidavits indicate offices or residence within twenty miles of the plant.
(Two of the affidavits simply indicate residence in Norristown. Norristown is approximately fifteen miles from the plant). Each affiant authorizes Mr. Romano as Chairman of the.AWPP to represent his or her interests.
There are two potential problems with these affidavits for the purposes of establishing standing.
First, there is no indication that the affiants are members of the Air and Water Pollution Patrol.
However, the Petition for Intervention, sworn to by the organization's chairman, indicates that the affiants are, in fact, members. The Petition may be read together with the affidavits to indicate membership. See,Public Service Co. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976).
Moreover, Mr. Romano is clearly a member and he, as mJCh as any of the affiants, alleges injury from the plant.
See Duke Power Co.
( Amendment to Materials License SNM-1773-Transportation of Spent Fuel froni Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 151 (1979).
Secondly, these affidavits (and similarly the Petition for Intervention) do not directly allege injury to the affiants.
We recognize, however, that the petitioner is not represented by counsel. We are willing, therefore, to overlook some lack of clarity in the pleadings.
See Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 NRC 470, 471 (1978); Public Service Electric and Gas Co. (Salem Nuclear Generating Station,
. Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1973). We believe that in alleging injury to their families and to members of the AWPP, Mr. Romano and the affiants intended to include themselves among those being injured.
Based on this interpretation of the pleadings, we find that each affiant and Mr. Romano has alleged that he or she will be injured.
This will, therefore, establish standing for theAWPP.E Mr. Romano also would have standing in this proceeding.
However, he has in no way atteirpted to differentiate his interests from those of the AWPP.
Indeed, if the interests varied there could be a conflict of interests regarding his representation of the AWPP.
Therefore, we will treat this as a single consolidated petition for intervention by the AWPP and Mr. Romano.
Mr. Romano will be the representative of the consolidated entity, which we will identify as the AWPP. See Tr. 687-88.
F.
Keystone Alliance On September 22, 1981, the NRC received a timely petition from the Keystone Alliance seeking to intervene in this proceeding on its j
own behalf and on behalf of its members. The petition included a list of the subject areas in which the Keystone ~ Alliance wished to intervene. Subsequently, affidavits were supplied in which members 9] The proposed clintentions attached to the Petition for Intervention indicate the aspects of this proceeding which are of l
interest to this petitioner.
In any event,.these were superseded by the AWPP contentions included with the coordinated filing of contentions of November 24, 1981.
l I
l
. of the Keystone Alliance indicated their interest in the proceedings and authorized the Keystone Alliance to represent them.
The Keystone Alliance has demonstrated standing to intervene in this proceeding on behalf of its members.
It has shown by affidavit that it has members living within twenty miles of the site who are concerned that operation of the plant will cause injury to their health and safety.
These members have authorized the Keystone Alliance to represent them.
In addition, the Keystone Alliance has
~
indicated which aspects of the proceeding are of interest to it J0f The petition states that Mr. Nogee has been authorized to represent the Keystone Alliance in this proceeding.
10f The Staff believes that the Keystone Alliance had demonstrated standing on its own behalf before it submitted any affidavits because its stated purpose relates to the zone of interests protected by the statutes governing this proceeding.
For this proposition, the Staff cites Houston Lighting & Power Co.
( Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 392 (1979). We believe the Staff is misinterpreting the Allens Creek decision.
Even when the purposes of the l
organization f all within the zone of interests protected, it still must be shown either that any of the group's activities is threatened with injury in fact or that the group has members who are threatened with injury from the grant of an operating license.
Id.
In Hunt v. Washington State Apple Advertising l
Comm'n, 43TlJ.S. 333 (19//), cited by the Appeal Board in Allens Creek, the membership of the group was known without t,he need l
for individual member identification because it was a specially defined association of Washington State apple growers, and such growers were threatened with injury.
Alternatively, the case could be viewed as involving an injury in fact to the trade association's organizational interest. With respect to an l
organization like Keystone Alliance with open membership, the Board could not presume that at least one member satisfied the injury in fact prong of the standing test. While specific
[ Footnote continued.]
. G.
Limerick Ecology Action Limerick Ecology Action (LEA) filed a Petition to Intervene and Request for a Hearing with the NRC on September 21, 1981.
The Staff supports LEA's standing to intervene. The Applicant opposes it.
LEA has provided affidavits from members residing less than twenty miles (and in one case less than two miles) from the site who allege that operation of the facility would cause injury to their health by means of radiological releases and who have authorized LEA to represent them in these proceedings.
LEA also provided a list of subject matter areas which it seeks to have litigated. These were later superseded by contentions, many of which we find adnissible, as discussed below. We find that LEA has satisfied the criteria for standing and is admitted as an intervenor in this proceeding.
h.
Friends of the Earth in the Delaware Valley / Robert H. Anthony Robert H. Anthony petitioned to intervene in this proceeding on his own behalf, on behalf of Friends of the Earth in the Delaware
[ Footnote continued.]
authorization for an organization with a defined agenda to oppose licensing of local nuclear power plants to represent its members may not be necessary, there is certainly no harm in stating that authorization explicitly at the time members supply affidavits attesting to their threatened injury from the proceeding's outcome.
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d j
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Valley (F0E), and on behalf of other individuals who had author'ized himtorepresenttheirinterests.11./'Forthereasonsset forth in our discussion of the AWPP (See page 16, supra), we will treat this as a single consolidated petition and identify it by the=
4 designation F0E. We find that F0E has standing to intervene in this proceeding.
Mr. Anthony appears in his own petition.to be concerned primarily with economic injury of a type not within the zone of:
interests of the statutes relevant to this' proceeding.
- However, attached to the petition is the affidavit of Elizabeth Anthony which does allege injury of a type ~ cognizable in this proceeding.
t l
Specifically, Ms. Anthony states'that operation of the Limerick j
plant will adversely affect her health.and well-being. A supplemental filing by F0E12/ states that Ms. Anthony is a member of the organization.
Her affidavit indicates her desire to have F0E represent her interests.
In addition, the petition includes a memorandun from the Chairperson of Fri. ends of the Earth 11/ As presented in the petition, the interests of these individuals are identical to those of Mr. Anthony and F0E. Mr. Anthony in-
~
protecting.his own interests and those of F0E will essentially protect the interests of these individuals. Moreover, if the individuals felt their interests differed from those of Mr.
Anthony and F0E, they could have appeared separately.
12/ Response to Memorandum and Order of the Safety and Licensing Board, dated 10/14/81,- from Robert H. Anthony for himself and Friends of the Earth in the Delaware Valley (October 25, 1981).
. in the Delaware Valley authorizing Robert H. Anthony to represent the organization's interests. Finally, attached to the petition are proposed contentions which suffice to indicate the aspects of this proceeding which F0E is interested in litigating, and how F0E believes its interests may be affected.
These were superseded by contentions advanced by F0E as part of the combined filing of contentions by all intervenors except ECNP. At least one of F0E's contentions is admitted by us. Thus, all the requirements for standing to intervene have been satisfied.
I.
Del-Aware Unlimited, Inc.
Del-Aware has petitioned for intervention both on its own behalf and on behalf of its members.
Del-Aware's concern with operation of the Limerick plant is limited to the supplementary cooling water system. Therefore, Del-Aware apparently intends that its participation will be limited to issues related to that system.
l See 10 CFR 2.714(f).
Del-Aware has not alleged any injury to its organizational interests.
It must, therefore, rely on injury to its members to establish standing. Affidavits of Colleen Wells and Val Sigstedt, members of Del-Aware, have been submitted to the Board.
In addition, Ms. Wells and Mr. Sigstedt.both testified before the Board
. during the prehearing conference for the purpose of establishing the type of injury they would suffer as a result of operation of the Limerick facility.
Tr. 27-37.
Both affiants live within five miles of the Point Pleasant diversion, which will be used to supply water to cool the Limerick plant.
Both state that'they regularly use the Delaware River in the vicinity of the diversion for recreation.
Mr.
Sigstedt uses wells to supply both his home and his business with water.
These wells are allegedly three miles down gradient from the Bradshaw Reservoir, a part of the diversion.
Both Ms. Wells and Mr. Sigstedt allege the diversion will have an adverse impact on the esthetics of the area and their enjoyment of it.
In addition, Mr. Sigstedt alleges that leakage of toxic materials from the Bradshaw Reservoir will harm his water supply.
These alleged injuries are sufficient to establish standing to litigate the particular aspects of this proceeding which Del-Aware indicates are of concern to it.
J.
Consumers Education and Protective Association On September 28, 1981, the NRC received a Petition for
~
Intervention and Request for a Hearing from the Consumers Education and Protective Association (CEPA).
The Board requested further information from CEPA in its Memorandum and Order Setting Schedule for Submission of Contentions and Other Preliminary Information (October 14,1981).
On October 28, 1981, CEPA filed four affidavits '
by members to supplement its petition. Then, on November 17, 1981, 2
. CEPA amended its petition and supplied an affidavit by the Executive Director of CEPA indicating that CEPA had appropriate authorizationtointerveneinthisproceeding.13_/
We find that CEPA has established standing to intervene in this proceeding.
The affidavits from the four CEPA members indicate that each affiant resides in Philadelphia. This is roughly 25 miles fran the Limerick facility. Moreover, each affiant alleges that operation of the Limerick plant will affect his or her health and/orsafety.l.1/ Each affiant authorizes CEPA to represent his or her interests in this proceeding.
Finally, CEPA has complied with the requirement that it submit a list of the aspects of the proceeding which it is interested in litigating.
This st was subsequently superseded by contentions advanced by CEPA.
13/ The Applicant argues that the two later filings by CEPA were untimely and should be disregarded by the Board.
In the Board's October 14 Order requesting further information, the Board indicated that the information should be provided by October 26.
As the Staff points out, however, NRC regulations do permit petitions to intervene to be amended without leave of the Board earlier than 15 days before the special prehearing conference.
Therefore we will consider these submissions. As we warned CEPA and the other parties at the prehearing conference held January 6-8, 1982, in the future, filings by any party which are later than the date set l
for them by the Board will be viewed with extreme disfavor.
--14/
CEPA members also allege injury to their economic interests as ratepayers. This, however, is not an interest within the l
zone of interests protected by the statutes involved in this proceeding.
See Portland General Electric Co. (Pebble Sprincs, l
Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976).
l
i l
f
- K.
National Lawyers Guild, Philadelphia Chapter By a petition docketed September 23, 1981, the Philadelphia Chapter of the National Lawyers' Guild (Guild) seeks to intervene in this proceeding on its own behalf and on behalf of its members.
Subsequently, in response to an Order by the Board dated October 14, 1981, the Guild filed a Supplemental Memorandum which clarifies the Guild's concerns and includes affidavits from Guild members and from prisoners who indicate that they authorize the Guild to represent them in this proceeding.
The Guild has also filed an affidavit from Susan Arnhold, a member of the Guild's Executive Committee, indica-indicating that the Guild has authorized Mr. Bronstein to represent it in this proceeding as its attorney.
The Guild has standing to raise health and safety concerns of its members.
It has submitted affidavits of five Guild members who live within 25 miles of the Limerick plant and who seek to have the Guild represent their interests in this proceeding.
Each member alleges that the Limerick plant would threaten his or her health and safety.
T'.e Guild has not, however, indicated that it is concerned with health and safety issues (other than concern with the safety of prisoners in the event of an emergency, as will be discussed separately).
Rather, the Guild's concerr.' center on possible
violation of its First Amendment rights by surveillance of its members (Contention VII-1) 11/
Standing to raise issues concerning alleged violation of First Anendment rights due to security measures taken in connection with a plant is, as far as the Board is aware, a novel question in NRC licensing proceedings. We recognize that effective arguments can be made both for and against a finding of standing on this issue. The initial question which the Board must address is whether the Guild members are threatened with injury in fact. The Guild alleges that the Applicant will conduct surveillance of Guild members.
Clearly improper surveillance could cause injury. Our inquiry does not end there, however. The nature of the injury is important in determining whether the injury is one cognizable in the present proceeding.
To satisfy the requirement of injury in fact, the injury must be caused by the action contemplated. There must be "a ' fairly tr.:eable' causal connection between the claimed injury and the challenged conduct."
Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72 (1978) (citations omitted); See Village of Arlington Heights v. Metropolitan Housing Development Corp.,
---15/ The Guild at one point in its petition indicates that it is raising this issue on behalf of all individuals who oppose the plant.
Since the Guild is plainly not authorized to act on behalf of individuals other than its own members as indicated by affidavit, we consider its standing only as it derives from injury to Guild members. See Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-77-11, 5 NRC 481, 483-84 (1977).
429 U.S._252, 261 (1977).
In addition, there must be "a
' substantial likelihood' that the relief requested will address the injury shown."
Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. at 75, n.20.
Thus, the injury must be attributable to the proposed action rather than to "the independent action of some third party...." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 42 (1976); see Pacific Legal Foundation
- v. State Energy Resources Conservation and Development Commission, 659 F.2d 903, 913-14 (9th Cir. 1981).
The Guild's petition indicates that the Applicant has admitted performing surveillance in the past.
Therefore, the Guild argues, we may anticipate that the Applicant will perform such surveillance in the future to protect the security of the Limerick plant.
This past surveillar,ce, however, is plainly attributable to the independent actions of the Applicant since the security plan required for an operating license is not yet in effect.
- Moreover, if surveillance has occurred in the past, it is not apparent that denial of an operating license (the relief sought by the Guild) would terminate the surveillance. Thus, if the threat alleged were simply surveillance by the Applicant, requirements for injury in l
fact would not be satisfied.
l The Board recognizes, however, that, through the licensing process, the NRC could become involved in the alleged Surveillance.
This would be the case, for example, if the NRC were to require or approve surveillance of those opposed to the Li.merick plants as a l
condition for granting operating licenses.
Only if the NRC were involved in causing the injury could a First Amendment violation occur.35/
The First Amendment addresses only the actions of the government; it does not address itself to private actions which may affect the rights of individuals to associate.12/ Thus, 0
e any injuries resulting from the independent past actions of the Applicant could not be violations of First Amendment rights.
However, if the Board, relying on its authority under the Atomic Energy Act of 1954, were to order or approve of security plans requiring surveillance which infringed upon the associational rights of the Guild, that would arguably be a violation of the First Amendment. Moreover, the violation of the First Amendment would be directly attributable to the Board's action and could be avoided if no license which required such security measures were issued.
l J6/ The Guild concedes this. At the Special Prehearing Conference, l
the Guild's representative stated, "I think if we could absolutely say that there was no surveillance contemplated on t
l the security plan, then I do not think we would be able to take i
it any further,..
Tr. 636.
J7/ The First Amendment states:
" Congress shall make no law l
respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, l
and to petition the government for redress of grievances."
~
U.S. Const. amend. I.
l
One further requirement remains before the Guild could satisfy the requirement of injury in fact.
There must be some reasonable possibility that the injury alleged might actually occur.
The Supreme Court has said, " pleadings must be something more than an ingenious exercise in the conceivable." United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 688 (1973).
More is required than that the party can imagine circumstances in which he would be affected by the agency's action.
Id. 't 689.
a The Guild has, in fact, hypothesized without basis a set of circumstances in which the Board might infringe upon its First Anendment rights.
It is sheer speculation to assume that the Board will order or approve a security plan which contains plans for surveillance to be conducted on the Guild because it opposes nuclear power. While it is true that the Atomic Energy Act of 1954, as amended, Section 103(d), 42 U.S.C.
2133(d) (1976), states that no nuclear facility may be licensed if such an action "would be inimical to the common defense and security or to the health and safety of the public," this provision has never been interpreted to require off-site surveillance of opponents of nuclear power. We are not aware of any occasion on which the NRC has ordered such measures.
The Guild is unable to direct us to any security plans
~
l approved for nuclear facilities which increase surveil-lance,18/
The provisions of 10 CFR Part 73 govern security measures for nuclear facilities, but they deal with measures taken on the site to address the physical security of the facility and require no surveillance of the type hypothesized here.
Indeed, the evidence that NRC would require such surveillance is so unconvincing that the Guild finds itself in the awkward position of arguing for an interpretation of the Atomic Energy Act which would require surveillance, and then arguing that NRC is violating the Guild's constitutional rights by acting upon that interpretation. Because this injury is so speculative, the Board holds that the Guild has not shown injury in fact.
In reaching such a conclusion, the Board does not seek to indicate that it considers the possibility of surveillance by the Applicant to be entirely speculative, but only that it considers the possibility that such surveillance will be required by the NRC to be completely fanciful.
The other requirement for standing is that the injury alleged be within the zone of interests of the statute involved. Although we have concluded that the injury in fact test has not been satisfied with regard to a violation of First Amendment rights, we nevertheless consider whether such an injury would be within the
---18/ The Guild points out that it is not able to see other security plans, but it claims surveillance has occurred elsewhere.
Tr. 635.
zone of interests of the Atomic Energy Act. The Act seeks to protect the interests of common defense and security and public health and safety.
See 42 U.S.C.
2133(d) (1976).
Thus, it is not directly concerned with First Amendment rights. The Constitution, however, is superior to the Atomic Energy Act and that Act, like any other, may not conflict with the Constitution.
In order to insure that no constitutional provisions are violated by governmental actions based on a statute, an individual alleging that such actions will cause him an identifiable injury should have standing to challenge the constitutionality of those actions. See Chicano Police Officer's Association v. Stover, 526 F.2d 431, 436 (10th Cir.
1975), vacated and remanded on other grounds, 426 U.S. 994 (1976),
holding on standing reaffirmed, 552 f.2d 918 (10th Cir.1977); 3 K.
Davis, Administrative Law Treatise 22.08, at 240 (1958). Other agencies have considered constitutional claims when they related to the agency's statutory mandate. See NAACP v. FPC, 425 U.S. 662 (1976) (charges of employment discrimination considered to the extent discrimination affects labor costs and thus rates); Bell &
Howell Co. v. NLRB, 598 F.2d 136, 149 (D.C. Cir. 19 ) (serious constitutional question if agency certifying union were to acquiesce in union discrimination), cert, denied, 442 U.S. 924 (1979);
Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621 (D.C.
Cir. 1978)(FCC considers discriminatory employment practices of licensee to the extent they affect licensee character j
qualification and ability to fulfill obligation to provide l
i l
programming for minority viewpoints). To the extent a First Amendment claim related to NRC's actions to provide for the common defense and security, that claim would be within the zone of interestsofthestatute.32/
In spite of the fact that the zone of interests test is satisfied, we decline to allow discretionary intervention by the Guild on the First Amendment issue. The possibility of the feared injury occurring by the means hypothesized is remote. While it may be true that the Guild has special expertise in the matter in question, the Board does not.22/ Finally, there are other 19/ Surveillance by the Applicant without NRC approval is not within the zone of interests protected by the statutes involved
~-~
in this proceeding. There would be no constitutional element to the claim, and neither the Atomic Energy Act nor the National' Environmental Policy Act are concerned with protecting associational interests or privacy interests of individuals.
i The appropriate forum for such a claim would be a court having jurisdiction over a civil action.
l 20/ This would not, of course, deter the Board if it believed that the Guild had raised a significant issue.
~~~
l l
l l
t l
l
forums where the Guild can use its expertise to address questions concerning surveillance which has already occurred and which may occurinthefuture.2]/
In sunmary, the Guild has not shown injury in fact and, therefore, lacks standing to participate in this proceeding.
Nor do we find that the Guild has satisfied the criteria for discretionary intervention. Therefore, the Guild is not admitted as a party in this proceeding.
As discussed below, the Guild may act as counsel for the Graterford Prisoners.
L.
Graterford Prisoners The Guild has also advanced contention VIII-10, alleging that the emergency plan does not provide adequately for evacuation of the State correctional institution at Graterford from the perspective of protection of the safety of the prisoners.
The last paragraph of the contention states that it is raised "on behalf of said inmates."
Graterford prison is less than ten miles from the Limerick facility, i
apparently within the " plume exposure pathway" energency planning zone of potential evacuation to be established under 10 CFR 50.47(c)(2). Accordingly, along the lines we discuss below for l
other emergency planning contentions, the contention is 21/ The Guild acknowledges that the Pennsylvania Public Utility Commission is investigating the alleged conduct. Tr. 645.
Indeed, the Guild seems concerned that the security plan and the NRC will legitimize activities which the Guild believes i
might otherwise be reprimanded in other available forums.
Tr. 636.
l
[
conditionally admissible. The issue raised by the Applicant and Staff, however, is whether the Guild has standing to litigate the contention.
The Board believes it would be a close question as to whether the Guild has standing to raise the contention. The Guild has established general standing based on the sufficiently close residence of its members to the Limerick facility as discussed above.
However, this particular contention concerns the interests of the prisoners, who are not Guild members. The interests of the prisoners arguably may be distinguished from the interests of members of the general population, such as Guild members, in an orderly, safe prison evacuation from the perspective of the safety of members of the public. See 10 CFR 2.714(f).
Indeed, the excerpt from the last paragraph of the contention quoted above supports the Staff's argument that the Guild should be considered counsel for the prisoners, and not a proper party itself to raise contention VIII-10.
We need not resolve the issue. The Guild would find it acceptable for the prisoners to be admitted as the party and the Guild to be considered their counsel. Tr. 45-48; 667-69.
In response to the Board's order of October 14, 1981, the Guild has supplied the affidavits of 17 Graterford prisoners (not due to be discharged within the next three years) affirming that they fear that their safety may be adversely affected in the absence of an emergency evacuation plan which protects them, and that they l
authorize the Guild to represent them in the proceeding.
See Guild filings of five prisoner affidavits on October 26, 1981, and 12 additional affidavits of prisoners filed on December 3,1981.
Accordingly, the 17 identified prisoners are admitted as a consolidated party under the collective group designated as the Graterford Prisoners. The Guild is recognized as their counsel.
M.
William A. Lochstet Dr. Lochstet's petition, received September 22, 1981, states that he resides approximately 120 miles from the plant and sometimes travels within three miles of the plant.
He alleges that both at
~
home and while traveling by the plant, he may consume food grown close to the plant which contains unknown quantities of radioactivity and that this endangers his health.
He also alleges that the danger that some of the food available near his home will contain radioactivity could depress property values.
In addition, l
he alleges that the amount of radon gas present in the air close to his home will be increased by uranium mining and milling necessary to provide fuel for the plant and that this will endanger his health.
Dr. Lochstet's residence 120 miles from the plant is not sufficient to provide standing. When a petitioner resides more than 75 miles from the plant, this alone will not establish an interest sufficient for standing as a matter of right.
Dairyland Power Cooperative (Lacrosse Boiling Water Reactor) ALAB-497, 8 NRC 312,
313 (1978).
See also Public Service Co. of Oklahoma (Black Fox Units 1 and 2), ALAB-397, 5 NRC 1143,1150 (1977) (not allowed to intervene when residence 125 miles from site).
Nor do Dr. Lochstet's visits to the vicinity of the site suffice to bring this interest to the level necessary for intervention.
His petition, as amended, shows only occasional visits close to the site.
At best, six occasions are mentioned specifically when he has been within 50 miles of the site, and no time frame for these visits is provided.
Intermittent visits to the area do not show an interest sufficient to require granting intervenor status. Public Service Co. of Oklahoma (Black Fox Units 1 and 2), supra, at 1150; Union Electric Co. (Callaway Plant Unit 1), slip. op, at 3 ( ASLB April 21, 1981) (special prehearing conference order).22/
-22/ Recreation close to the site has been a factor contributing to standing in some cases, but in those instances the individuals have also resided less than fifty miles from the plant. See, Je.., Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-73-10, 6 AEC 173, (1973)
(affidavit shows grounds for standing when it states members live within five miles of the facility and some members engage in recreation close by it); Virginia Electric and Power Co.
(North Anna Nuclear Power Station, Units 1-and 2), ALAB-522, 9 NRC 54, 57 (1979) (in case where imediate ruling on intervention was desirable, Appeal Board found it preferable to allow intervention when member group resided 45 miles away, and canoed close to the plant); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190 (1973) (residence within 30 to 40 miles of the site sufficient to show interest, particularly in light of recreatio'al activities in close proximity to site).
In his Supplement to Petition to Intervene-(October 22,1981),
and at the prehearing conference (Tr. 68-69), Dr. Lochstet relied on the WASH-740 update study for the proposition that residence at distancos greater than fifty miles should, when coupled with allegations of injury, be sufficient for standing.
Dr. Lochstet subsequently filed a copy of the material on which he relies.
He believes this establishes that an accident would cause deaths as much as 150 kilometers (90 miles) from the site.
The material filed by Dr. Lochstet is the minutes of a meeting in 1964 of the steering committee on the revision of WASH-740.
The Board is not convinced by this that it should extend the distance for standing to over 90 miles.
(Even if it did so, Dr. Lochstet's 4
residence, 120 miles from the site, would not be included.)
This material predates the cases cited above which indicate that 75 miles is too great a distance for standing based on residence location.
s I
It is simply a record of what was discussed at a meeting, not an accepted conclusion of the steering group or the NRC. Moreover, Dr. Lochstet has not shown that 'the assumptions made in the minutes apply to a commercial reactor such as Limerick.
For these reasons, these minutes fail to establish that the distance at which residence raises a presumption of standing should be extended.
Nor do the interests related to contaninated food which Dr. Lochstet alleges provide him with standing.
Insofar as his 4
allegations deal with diminished property values because of the fear
)
that produce available locally will be contaminated, this is not
4:
. p within the zone of interests protected by the statute.
Economic injury serves as a basis,for standing only if it is environmentally (or radiologically) related. Portlan'd General Electric Co. (Pebble i
Springs Nuclear. Plant, Units 1 and 2) CLI-76-27, 4 NRC 610, 614 (1976); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1) ALAB-582, 11 NRC 239, 242 (1980);
Tenne'ssee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2)
ALAB-413, 5 NRC 1418,1420-21 (1977). The basis for the interest alleged here is fear of contamination, rather than the effect of radiological food contamination (which we discuss next).
If people believe the plant will cause contaminated food, real estate values may drop whether or not any contaminated food actually exists.
As to' allegations that the plant will cause radiologically contaminated food which Dr. Lochstet may consume, these allegations are too remote and too generalized to provide a basis for standing to intervene. See Tr. 68.
There is, for example, nothing contained in the petition to explain why, if there is contaminated food, it l
would find its way onto Dr. Lochstet's table. While the Board assumes for the purpose of testing for standing that the allegations in the petition are true, it will not take it upon itself to manufacture through sheer speculation a mechanism by which the petitionermightconceivablyreceivetheinjuryMefears.
I Finally, we come to Dr. Lochstet's allegations concerning radon.f While radon release as a result of the uranium fuel cycle was'at one time addressed generically by a Conrnission regulation,
this is no longer the case, and radon issuer may be raised before Licensing Boards. See 43 Fed. Reg. 15613 (April 14, 1978). This i
does not mean, however, that anyone has standing to raise questions concerning radon before the Board.
Injury in fact is still required.
If Dr. Lochstet's residence 120 miles from the plant is insufficient to give him standing, it is inconceivable that he will suffer a sufficient injury from uranium milling and mining operations over a thousand miles away (Tr. 72) to give him standing.
Dr. Lochstet also seeks discretionary intervention.
Despite his bare request for discretionary intervention status in his filings prior to the Special Prehearing Conference, the Board was interested in a thorough explanation of whether Dr. Lochstet woul,d have a significant special expertise to contribute on important issues which the Board believed should be explored.
Therefore, we pursued this in the context of Dr. Lochstet's proposed j
l contentions and his expertise. See Tr. 73-74, 309-35. The l
pertinent inquiry is not whether the contention would be admissible l
1 under section 2.714 if its sponsor had standing, but whether it states a signficant issue which should be resolved and whether Dr.
Lochstet can contribute significant expertise to that end. We find that the transcript discussion cited above discloses that such is not the case and therefore discretionary intervention is denied.
Summarizing that transcript briefly, Dr. Lochstet has advaeced four contentions on three subjects:
1-47 and I-48:
Number of HPCI pumps V-8:
Radon emissions in the fuel cycle V-9:
Iodine-129 emissions in the fuel cycle Dr. Lochstet has a doctorate in physics and has been an assistant professor of physics at Pennsylvania State University since 1966.
He has also been an informed observer and participant in NRC proceedings. He has filed canments on many NEPA environmental impact statements regarding uranium fuel cycle activities and nuclear power plants.
He also has several published articles, although none of which, from the titles, appear to concern the subjects of his proposed contentions. See filings of Dr. Lochstet in this proceeding of September 18, 1981 and January 14, 1982.
Our denial of Dr. Lochstet's request for discretionary intervention does not denigrate his general qualifications as a physicist and informed observer of nuclear regulatory matters.
However, in the context of the issues he seeks to raise, he disclosed nothing which would contribute significantly or portend an l
important future contribution to the operating license decision before us. For example, his desire (Contentions I-47 and 48) that there be three High Pressure Coolant Injection (HPCI) pumps for each unit, rather than the proposed one, arranged so that each pump would inject coolant into a separate core spray loop, was based on a very l
superficial approach to a complex analysis.
See Tr. 312-13, 316.
Briefly, based on the FSAR (Section 6.3.1.1.2), the HPCI system l
is one of the high pressure coolant systems that are part of the 1
t
Limerick design. The system is comprised of a single steam turbine-driven, constant flow pump assembly and associated piping, valves, controls and instrumentation. Water is injected into the reactor pressure vessel by way of one of the two core spray loop pipes.
The purpose of the HPCI system is to maintain reactor pressure vessel water inventory following a snall pipe break or a transient which does not depressurize the reactor vessel.
If this system fails, high pressure coolant can be supplied from the reactor core isolation cooling system, the control rod drive system and the cor.densate and feedwater systems. As in other G.E. boiling water reactors (BWRs), the high pressure systems are supplemented by the 4
automatic depressurization system (safety / relief valves) which lowers the pressure in the reactor vessel, and the low pressure coolant injection system (four pumps) and the core spray system (four pumps), which supply makeup water to the reactor vessel.
Dr. Lochstet does not contend that the HPCI system design does not meet the Connise,1on's regulations, but asserts that this design is not adequate because of the high population density at Limerick.
Tr. 309-310.
He admitted that he had done no analysis of the BWR emergency core cooling systems (ECCS) including the HPCI system (Tr. 313), saying, "You can do that calculation in your head."
Further, in response to the Board question, "How did you arrive at the number three?", he replied, "To be very honest with you, I thought two [HPCI pumps] would do the job but I thought I would shoot for three just to make sure I would get there." Tr. 316.
Dr. Lochstet generally displayed a lack of knowledge of the design and performance analysis of the Limerick ECCS, including the HPCI system.
Tr. 309-18. Both Applicant (Tr. 320) and Staff (Tr. 321) concluded that Dr. Lochstet had demonstrated that his participation in this proceeding would not contribute to the record of this proceeding.
Dr. Lochstet filed additional material to support his proposed contentions'on January 14, 1982.
This included a copy of the Advisory Committee on Reactor Safeguards (ACRS) Report to the Chairman of the Atomic Energy Commission on Newbold Island Nuclear Generating Station Unit Nos.1 and 2, August 10, 1971. The ACRS letter conditionally approved construction of the Newbold Island Station, and included additional comments of three of the fifteen members.
One comment was that for a high power reactor at a site as densely populated as Newbold Island, the applicant should give further consideration to the use of an HPCI system on the second
{
Mere citation of these comments adds nothing to core spray loop.
Dr. Lochstet's expertise.
In Contention V-8, Dr. Lochstet alleges that radon emissions as l
l a result of the nuclear fuel cycle have not been properly evaluated.
The Board noted at the prehearing conference that this issue is presently before the Appeal Board. Tr. 323.
The Appeal Board has already reached a generic decision on the quantity of radon emissions attributable to the fuel cycle of any reactor.
It is presently determining, generically, the health effects of such l
~
I emissions.
Dr. Lochstet apparently concedes that the decision by the Appeal Board would be applicable to Limerick.
Tr. 325.23/
Since the Appeal Board decision would be technically applicable to Limerick, with limited flexibility to show why it should not be followed, the significance of the radon issue for Limerick is lessened. The Board is not convinced that the issue is crucially important, and to the extent it is important, it may be developed by ECNP which also addressed it in a contention.
Dr. Lochstet has not shown us that he brings particular expertise to the question. Therefore, the Board will not permit him discretionary intervention on this matter.
Dr. Lochstet's point in raising contention V-9 is a curious As explained one, of no apparent impcet to a decision in this case.
in the record (Tr. 329-37), Dr. Lochstet agrees that the emissions attributed to I-129 in Table S-3 to 10 CFR 51.20(e) (1.3 curies)
However, he wants the particular health is correct. Tr. 330-31.
effects of the 1.3 curies separately discussed while eschewing any argument that health effects from the much larger total releases in Table S-3 should be factored into the NEPA cost benefit analysis.
The Board sees no purpose in this academic separation of.the effects of the 1.3 curies attributed to I-129, and Dr. Lochstet has supplied I
i The manner in which this Board would apply that decision on 23/
Limerick is discussed at pages 46-47, infra.
~~~
none.
For this reason, without deciding whether such a contention would be admissible if Dr. Lochstet had standing as of right, it is not an important issue so as to justify a grant of discretionary intervention to consider it.
This would be true even if Dr. Lochstet has expertise, which he has not disclosed, on health effects of radiation.
N.
Environmental Coalition on Nuclear Power The Environmental Coalition on Nuclear Power (dCNP) filed a petition for leave to intervene in this proceeding on September 25, 1982. On October 14, 1981, the Board ordered ECNP to file affidavits authorizing the organization to intervene and authorizing the representative filing the petition to act on behalf of the organization.
ECNP supplied the required affidavits in two subsequent filings.
The affidavits supplied by ECNP indicate that it has members l
residing less than 50 miles from the Limerick site (one affidavit is from a member who resides four miles from the site) who fear injury to their health and safety due to the release of fission products from the plant.
These members have authorized ECNP to represent l
their interests in this proceeding.
In addition, Dr. Judith Johnsrud, Co-Director of ECNP, by affidavit states that ECNP has authorized Dr. Chauncey Kepford and herself to represent the organization in this proceeding.
ECNP has also indicated the l
aspects of this proceeding in which it desires to participate.
Its subsequent filing of two contentions has clarified somewhat the scope of these aspects. Therefore, ECNP has standing to participate in this proceeding.
The requirement that ECNP has filed an admissible contention must be satisfied.
ECNP was not identified as a sponsor of any of the contentions in the coordinated filing of all of the other intervenors.
Instead, on the same day the coordinated filing was received, the Board received from ECNP its own supplemental petition to intervene.
This filing contained two contentions and indicated that ECNP wished to adopt all the contentions in the consolidated filing, approximately 150 contentions.
In seeking to adopt all the contentions, ECNP has not complied with the Board's request for either a coordinated filing or at least separately stated contentions of its own (beyond the two filed) by ECNP.
ECNP wishes the Board to believe that it coordinated with the f
other petitioners in preparing contentions. The evidence of such coordination is minimal. While counsel for the petitioner who coordinated the filing of contentions knew the subject areas which interested tCNP, she did not know what contentions ECNP would file.
Tr. 124.
Nor did ECNP aid in formulating the wording of the coordinated contentions, or, indeed, know what the wording was at j
the time the contentions were filed. Tr. 111, 124-25.
l l
l l
ECNP was not sufficiently familiar with the content of the coordinated filing to know that the two contentions it filed separately were, in essence, advanced in the coordinated filing by other petitioners.
Tr. 110.
Nor, in spite of its stated desire to adopt all the contentions, is ECNP interested in litigating all of them. Tr. 112.
For example, ECNP's representative stated that ECNP would not be interested in pursuing independently contentions I-47 and I-48 concerning the HPCI system. Tr. 319.
At the prehearing conference, the Board indicated that ECNP had not coordinated in the manner of the other petitioners.
ECNP had not supplied a basis for each contention or indicated how each contention relates to its interest in the proceeding. Therefore, the Board discussed using its discretion to allow ECNP to participate as a consolidated intervenor on all the admitted contentions.
Tr. 115-23.
ECNP would not have been a named party on
(
the contention. The burden of getting information, suggestions and discovery requests to the named intervenors would have been entirely upon ECNP.
The named intervenor could have chosen whether or not to use the material it was given by ECNP.
I l
Upon reflection, the Board has concluded that it will not adopt this concept of consolidation because it does not believe such consolidation would serve a useful purpose. Any contentions for which ECNP would be a consolidated intervenor would already have been admitted in t'iis proceeding.
(Only Dr. Lochstet's contentions
45 -
are precluded because their sponsor lacks standing.
ECNP stated it was not interested in the HPCI and Iodine-129 contentions and has submitted its own contention which essentially duplicates Dr. Lochstet's radon contention.)
Although not a consolidated intervenor on the admitted contentions, ECNP is free to offer assistance to contention sponsors. However, since ECNP is not a consolidated intervenor, there will not be the burden on contention sponsors which they might otherwise feel from their relationship with ECNP.
See, e.g., Tr. 121-22.
The only advantage that might accrue to ECNP from making ECNP a subservient consolidated intervenor in the manner contemplated at the prehearing conference would be that, in the event the named party for some reason was unable to pursue a contention, ECNP could be designated lead intervenor for it.
ECNP notes that Boards do not always permit other intervenors to adopt such contentions.
Assuming arguendo that ECNP's point in that regard is correct, the Board l
will not adopt the technique of consolidated intervention for the purpose of avoiding future procedures which might properly lead to contentions being eliminated.
On the other hand, the Board has substantial discretion to control the proceeding.
If it appears in the future that a contention will be dropped, the Board may permit an intervenor with related contentions to adopt it.
Moreover, the Board has authority m
to pursue independently issues which it finds particularly important.
See 10 CFR 2.760a.
For these reasons, the Board concludes that ECNP may not participate on any of the contentions filed by the coordinated intervenors.
ECNP will be an intervenor only if we find at least one of its own contentions admissible.
Radon ECNP's first contention is that there is no accepted assessment of the total health effects resulting from radon gas emitted as a result of mining and milling uranium fuel for Limerick.
In its contention, ECNP recognizes that there is a proceeding before the Appeal Board which is to determine the health effects associated with the releases of radon.
We will admit a contention concerning the health effects of radon enissions only if provided the
" documented opinion of one or more qualified authorities... that the incremental [ health effects of] fuel cycle-related radon emissions" will be greater than those determined in the Appeal Board proceeding.
See Philadelphia Electric Co. (Peach Bottom Atomic l
Power Station, Units 2 and 3), ALAB-654,14 NRC 632, 635 (1981).
For this reason, we will defer ruling on ECNP's radon contention until after the Appeal Board decision in the Peach Bottom case is issued.
n
47 _
The Staff should assure that ECNP and the Applicant receive copies of the Peach Bottom decision promptly after it is issued.
ECNP will then have 30 days after the service of that decision to supply the necessary documentation to question the findings therein.
The-Staff and Applicant will be allowed to reply to any filings made by ECir. We caution ECNP that even if it can supply the documented opinion required, we will have to consider whether collateral estoppel will prevent ECNP from challenging the Peach Bottom decision in light of ECNP's participation in that consolidated proceeding.
Waste Confidence The only additional contention advanced by ECNP contends that an operating license should not be issued unless and until there is assurance of adequate and safe storage and disposal of spent fuel and high-level radioactive wastes which will be created by the j
Limerick nuclear power plant. Contention V-7, advanced by CEPA is in essence the same contention, although it is directed only to the disposal of spent fuel. These contentions are denied.
It is correct that consistent with the decision in Minnesota v. NRC, 602 F.2d 412 (0.C. Cir.1979) the Commission has instituted a generic rulemaking proceeding, which is still pending, to reassess its confidence that radioactive wastes produced by nuclear facilities will be safely stored and then can be safely disposed of. 44 Fed.
Reg. 61372 (October 25,1979).
That notice by the Comission interprets the Minnesota case as not requiring the altering of individual licensing practices while the Commission reassesses its confidence. Accordingly, the Comission, in its notice, explicitly directs "... that during this [ waste confidence rulemaking]
proceeding the issues being considered in the rulemaking should not be addressed in individual licensing proceedings."24/
The Board has reviewed the decision in Pacific Legal Foundation
- v. State Energy Resources Conservation and Development Commission, 659 F.2d 903 (9th Cir. 1981), which ECNP asserts supports admission of its waste confidence contention. The decision does not undercut either the basis for the Commission's determination not to halt l
licensing pending the completion of the waste confidence rulemaking or the Commission's right to make that determination.
The Court l
24/ Earlier, in 1977, the Commission denied a petition for a rulemaking filed by the Natural Resources Defense Council which sought to halt licensing on the same grounds advanced in th1s contention. 45 Fed. Reg. 34391 (July 5,1977), aff'd Natural Resources Defense Council v. NRC, 582 F.2d 166 (2d. Cir. 1978).
This Commission action is relied upon by the Staff before us and by a recent Appeal Board decision. Florida Power and Light Co. (Turkey Point, Units 3 and 4), ALAB-660, 14-NRC 987, 1011, E38 (November 30,1981). The Commission's 1977 action, and the 1978 NRDC decision, supra, potentially could have been modified by subsequent events, including the Minnesota l
decision, supra, and the Commission's 1979 initiation of the waste confidence proceeding. As it happens, however, the Commission chose to reaffirm in its 1979 notice that individual licensing proceedings should not address the issue of waste confidence.
l I
- 4g -
there decided merely that California has the right, in the face of claims of Federal preemption, to require by statute, inter alia, a finding by its state energy commission that a federally approved method of disposing of nuclear waste exists as a prerequisite to California approval of nuclear power plants.
O.
Interested Government Agencies Three petitions were received seeking participation pursuant to 10 CFR 2.715(c).
The Cormionwealth of Pennsylvania, the Consumer Advocate of the Commonwealth of Pennsylvania,El and the City of Philadelphia may all participate as interested governmental representatives. Although they were not required to submit contentions as a precondition to participation, they may raise issues which particularly corcern them. They n?ed not take a position on such issues. They must raise these issues with enough specificity and detail that they permit evidentiary determinations i
i
-25/ At the Special Prehearing Conference, the Board was assured that the Commonwealth Of Pennsylvania and the Consumer Advocate represent different interests (Tr. 52-54), therefore they will both be allowed to participate.
The Board expects, however, that their participation will not be repetitive. The Board notes that the issues which appeared to be of the greatest interest to the Consumer Advocate, financial qualifications and need for power, have since been removed from the scope of this hearing. The Constner Advocate is, of course, free to participate on other issues of concern to it.
t
- 50 3
to be made in an adjudicatory setting. The Board and the parties must receive notice of these issues sufficiently.in advance of the hearing that reasonable 4
preparation is possible. See Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 768-72 (1977). Similarly, timely notice is necessary if an interested governmental representative wishes to present direct testimony on an issue raised by another party.
III. CONTENTIONS CONCERNING THE SUPPLEMENTARY j
COOLING WATER SYSTEM i
A.
Background
i Several proposed contentions relate to the supplemental cooling water system for Limerick.
This system is necessary because, although cooling water is to be taken from the Schuylkill River and/or the Perkiomen Creek, there will be times when these sources will not have_ sufficient water to cool Limerick and meet downstream needs. SeePhiladelphiaElectricCo.(Limerick _ Generating l
Station, Units 1 and 2), LBP-74-44, 7 AEC 1098, 1115, 1117 (1974).
Initially,-
the plant was proposed with supplementary cooling water to be supplied from the Delaware River as augmented by controlled releases from the then-proposed Tocks Island Reservoir.25/ Because there was uncertainty about the future l
---26/ Use of the Tocks Island Reservoir would involve channeling water from the Delaware River to the plant via the Perkiomen Creek.by means of a diversion to be constructed at Point Pleasant. The Point Pleasant diversion of Delaware River water to the Perkiomen would be utilized under all the alternatives considered.
of the Tocks Island project, the AEC Staff recommended that the Applicant be required to get a firm commitment for an alternative water supply should Tocks Island not be available. See 7 AEC at 1119.2Z/ The Applicant asked the Delaware River Basin Commission (DRBC), which allocates the use of water from sources in the Delaware River Basin, for such a commitment.
See 7 AEC at 1114.
The DRBC indicated on March 15, 1973 that, by January 1,1977, it would decide whether there were adequate existing water storage f acilities to supply all water needs, including those of the Applicant.
If water storage were found not to be adequate, the Applicant was to build a storage reservoir sufficient for its needs.
See 7 AEC at 1120. This possible reservoir was treated in the AEC Staff's Final Environmental Statement (FES) through an evaluation of a range of impacts which would typically be associated with such a reservoir although the particular location, design, and costs of the reservoir had not been specified.
In addition, the Staff and Applicant presented analyses of a
" river follower" mode of operation whereby there would be no storage of supplemental cooling water and the power levels at the Limerick plant would rise and fall with changes in the allowable quantities of water available from the Schuylkill and Delaware Rivers.
See 7 AEC at 1127-28.
In the construction permit proceeding, the Licensing Board found that the river follower mode of cooling would completely change the proposal for the Limerick plant and that this method of cooling had not been adequately 27/ Pursuant to the Energy Reorganization Act of 1974 and an implementing Executive Order, the licensing and regulatory functions of the Atomic Energy Commission were transferred to the Nuclear Regulatory Commission on January 19, 1975.
evaluated.
See 7 AEC at 1128.
It therefore dismissed this alternative as a basis for issuance of a construction permit.
The Licensing Board also found that the consideration given to environmental effects of a supplemental reservoir was inadequate because it did not discuss a specific reservoir. 7 AEC at 1123.
The Board authorized the issuance of a construction permit, but directed that, if and when the DRBC permitted the Applicant to construct a supplemental reservoir, the AEC Staff was to prepare an impact statement.
The statement would be prepared prior to construction of the reservoir and would discuss the impacts of its construction and operation.
7 AEC at 1147.
The Appeal Board agreed with the Licensing Board that the generic consid-eration of impacts from reservoirs was an insufficient basis for granting a construction permit to Limerick. See Philadelphia Electric Canpany (Limerick Generating Station, Units 1 and 2), ALAB-262,1 NRC 163,197-8 (1975).
However, the Appeal Board removed the permit condition requiring the NRC to prepare an environmental impact statement (EIS) on the supplemental reservoir if one were to be built.
Unlike the Licensing Board, the Appeal Board found that the radiological and environmental consequences of operation in the " river follower" mode were adequately considered. See 1 NRC at 192-95.
Concluding that the NEPA balance would be no less favorable to Limerick if the Tocks Island reservoir or supplemental reservoir option were adopted than it would be l
if the plant were operated in a river follower mode, the Appeal Board l
authorized issuance of the construction permit on the basis of the l
environmental analysis performed on the river follower option.
1 NRC at 205.28/
In reaching its conclusions, the Appeal Board found that the AEC Staff had acted appropriately in relying for part of its own assessment on an EIS prepared by the DRBC.
See 1 NRC at 189.
The Appeal Board noted that authorization of the construction permit on the basis of the " river follower" alternative would not foreclo;6 eventuai use of the other alternatives if available and found preferable.
1 NRC at 200 n.56.
A decision concerning the alternative of a supplemental reservoir, however, was specifically left for the DRBC.
NRC would review that decision only to the extent it created collateral safety issues.
1 NRC at 206.
The proposal presently before us still envisions the plant operating in a river follower mode similar to that upon which the Appeal Board based its approval of the construction permit.
B.
Effect of NRC Decision at the Construction Permit Stage i
Both the NRC Staff and the Applicant argue that because many of these supplemental cooling water matters were considered by the Licensing Board and the Appeal Board at the construction permit stage, they eed not be reconsidered now.22/ At the prehearing conference, counsel for Del-Aware l
l
~~~28/The Commission subsequently endorsed this approach, calling it " issuance of a permit on the basis of a ' worst case'" analysis.
See Public Service Company (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 545, n.52 (1977).
l
~~~29/The Staff and Applicant agree that in the event Del-Aware can show l
sufficiently changed circumstances from the time the construction permit l
was issued, the changed matters could be appropriately considered now.
l
l conceded that water issues were before the Board at the construction permit stage but argued that, in light of events since that time, relitigation of these issues is appropriate.
Tr. 348-49.
Not all environmental issues need be reconsidered at the operating license stage.
The Commission's regulations provide that the Environmental Report submitted by the Applicant with its application for an operating license will include the same matters discussed in the Environmental Report for a construction permit "but only to the extent that they differ from those discussed or reflect new information in addition to that discussed in the final environmental impact statement prepared by the Commission in connection with the construction permit." 10 CFR 51.21.El In turn, the scope of the Staff's Draft and Final Environmental Statements (DES and FES) at the operating license stage is defined by matters which Section 51.21 mandates for the Applicant's Environmental Report.
See 10 CFR 5 51.23 and 51.26.
The District of Columbia Circuit approved of this approach in Calvert Cliff's Coordinating Committee, Inc. v. AEC, 449 F.2d 1109 (D.C. Cir.1971), saying full consideration under the National Environmental Policy Act (NEPA), 42 U.S.C.
4332 et. seq., "need not be duplicated, absent new information or new developments, at the operating license stage." M.at1128,quotedinUnionof 30/
In the construction permit proceeding for Limerick there was supplemental testimony supplied by the Staff and relied upon by the Appeal Board for its environmental findings. This is treated as having amended the FES.
See 10 CFR s 51.52(b)(3); cf., Citizens for Safe Power v. NRC, 524 F.2d T271,1294 & n.5 (0.C. CirD975) (approving Appeal Board holding)that FES should be deemed modified to correspond to stipulation by parties ;
Ecology Action v. AEC, 492 F.2d 998, 1001 (2d Cir. 1974) (deficiency in FE5 not automatic grounds for reversal when missing matter may be considered in agency hearing).
Concerned Scientists v. AEC, 499 F.2d 1069, 1079 (D.C. Cir. 1974).
Thus, it is clear that NEPA does not mandate that environmental issues considered in the construction permit proceedings be considered again in the operating license hearing, absent new information.
Even were NEPA interpreted to require an environmental review at the operating stage of all matters considered when the construction permit issued, the principle of collateral estoppel might apply to issues litigated in the earlier proceeding.
Collateral estoppel provides that an issue which has actually and necessarily been determined by a court of competent jurisdiction may not be relitigated in a subsequent case based on a different cause of action involving a party to the prior litigation. Montana v. United States, 440 U.S. 147, 153 (1979). Collateral estoppel applies to administrative as well as judicial proceedings and, therefore, may apply to issues before a l
licensing board.
See Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974).
In Farley, the Commission noted with I
approval the Appeal Board's conclusion that this doctrine shall be " applied with a sensitive regard for... changed circumstances or...
special public interest f actors in the particular case...."
Id,. at 203.
Traditionally, collateral estoppel has applied only if four elements are l
present.
These are that (1) the issue for which preclusion is sought is the l
same as was involved in the prior action; (2) the issue was actually litigated; (3) the issue was determined by a valid final jtJgment; and (4) determination l
of the issue was essential to the prior judgment. Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563, 566 (1979),
i aff'd, ALAB-575,11 NRC 14 (1980). These elements are arguably present for
some of the issues contained in petitions for intervention presently before the Board.
It has also traditionally been required that the party in the second litigation who is to be bound by the judgment of the prior litigation was a party or a privy to a party in the earlier litigation.
See, e.g., id. at 572.
This has assured that a " full and fair" opportunity to litigate the issue has been provided the party at some point and has avoided the possibility that a party will be denied due process of law.
See Allen v. McCurry, 449 U.S. 90, 95,(1980); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979).
Del-Aware was not a party to the construction permit proceedings, but one licensing board has recently held it is not necessary for the party being estopped to have participated in the earlier litigation, at least in the special circumstances of an NRC operating licensing proceeding. See Cleveland Electric Illuminating Co., (Perry Nuclear Power Plant, Units 1 and 2),
LBP-81-24, 14 NRC 175, 200 (1981); cf. Southern California Edison Co. (San f
Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-3, 15 NRC _
(Jan.11,1982), slip op. at 20-28 (matter which could have been an issue in construction permit proceeding foreclosed at operating license stage although intervenor seeking to raise it was not a participr t in construction permit l
proceeding).
The Perry board observed that nuclear licensing proceedings are
" notorious",14 NRC at 199, and that other intervenors as well as the NRC Staff represent the public interest in such proceedings.
_Id,. at 200.
The Perry board held that in light of the Applicant's reliance on the construction permit decision and the function of collateral estoppel in preventing needless I
relitigation, collateral estoppel could equitably be applied to issues litigated at the construction permit stage. M.at199-200.3_1/
Under the Perry approach, collateral estoppel could apply to Del-Aware on matters litigated in the construction permit proceeding although Del-Aware was not a participant in that proceeding.
However, the Appeal Board preliminarily has disagreed with this approach in the course of ruling on a request to stay the San Onofre decision, supra.
Southern Cal. Edison, (San Onofre, Units 2 and 3), ALAB-673,15 NRC _ ( April 26,1982). Because we find that the scope of review required by NEPA at the operating license stage does not require reevaluation of environmental matters considered before the construction permit was issued in the absence of sufficiently changed circumstances, we need not decide whether, as an independent doctrine of repose, the Perry approach to collateral estoppel should apply here.
In support of its position that the issues set forth in its petition for intervention should be litigated, Del-Aware alleges that several changes have l
occurred since the construction permit was issued which justify our reconsideration of environmental impacts of the cooling water system in this operating license proceeding.
Some of these changes are sufficiently significant that their consideration is warranted.
For example, short-nosed sturgeon, an endangered species, have reportedly been found in the Delaware River after the conclusion of the construction permit proceeding.
Similarly, since that time the proposed location for the Point Pleasant intake structure 3_1/ The Supreme Court has recognized that the policies underlying collateral estoppe_1 may apply in contexts not recognized by the coninon law.
See l
Al len v. McCurry, 449 U.S. at _, 66 L. Ed. 2d at 313.
i
in the Delaware River purportedly has been changed and its location allegedly may be changed again. These two changes since the conclusion of the construction permit proceedings, particularly when considered together, create the possibility of sufficiently different impacts on the Delaware River to justify their analysis in the operating license environmental impact statements and our further consideration of the admissibility of contentions relating to their changed impacts.
Several other changes also are alleged by Del-Aware.
In general, we will discuss their significance when we discuss the contention to which they relate. A few, however, deserve mention now.
We note that the National Historic Preservation Act, 16 U.S.C.
470-470(b) and 470(c)-470(n) (1976 and supp.), and the Endangered Species Act, 16 U.S.C.
1531-1543 (1976 and supp.), have been amended since the construction permit was issued. Compliance with these acts will be required.
However, reconsideration of environmental impacts under NEPA is not necessitated by changes in these laws unless it appears that the changes in the laws in some way relate to changing environmental impacts.
If the environmental costs remain the same, the amendments to these laws do not require that the matter be opened for reconsideration.
But where there are significant changes in environmental impacts, the impacts must be evaluated in light of current statutory authority.
Thus, for example, if it is shown that short-nosed sturgeon exist in the Delaware River, this must be factored into the NEPA analysis and the sturgeon's status as an endangered species will be governed by the current Endangered Species Act.
Although the proposal presently before us relies on the " river follower" mode of supplementary cooling, as did the design on which the Appeal Board's approval of the construction permit was based, we must be cautious in determining to what extent the " river follower" proposal was actually evaluated in those prior proceedings.
The " river follower" mode as presently constituted involves a pumping station on the Delaware River at Point Pleasant.
(See Figure A.)
Water from the Delaware will flow through a transmission main to the Bradshaw Reservoir and pumping station. From the Bradshaw Reservoir, water will flow through another transmission main to the East Branch of the Perkiomen Creek.
It will flow down the Perkiomen until it reaches a point close to the Limerick plant where there will be another pumping station and a final transmission main through which water will flow to the plant. Part of this system will also be utilized to provide water to the Neshaminy Water Resources Authority (NWRA). Thus, some of the water passing through the Point Pleasant pumping station and transmission main to the Bradshaw Reservoir will be carried by yet another transmission main to the North Branch of the Neshaminy Creek l
from whence it will flow to the North Branch Water Treatment (Chalfont) Plant to be used to supply supplemental water to central Bucks and Montgomery Counties.
l
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61 -
The details of the " river follower" plan approved at the construction p2rmit stage are ambiguous.
It appears to the Board, however, that the " river follower" plan, as then conceived, included making use of the Point Pleasant intake and the Bradshaw Reservoir to divert water into the Perkiomer. Creek.
See, e.g., Staff Testimony of A. R. Lyle, following Tr. 5847 (March 5, 1974);
Tr. 3656-57 (Dec. 5, 1973).
The extent to which details of the project were known or considered is unclear.
Some consideration of the environmental impacts of the project was undertaken by the Appeal Board, however. See 1 NRC at 202.
Although the FES did not specifically address the river follower option (1 NRC at 189), the Appeal Board found that its discussion of environmental costs was adequate.
1 NRC at 202.
It appears that the basis for finding that the environmental costs set forth in the FES would apply equally well if the plant operated in the river follower mode was largely that no intervenor raised the issue of possibly differing environmental costs attributable to that method of supplemental cooling.
The Appeal Board did not on its own see any greater environmental costs attributable to the river follower method of cooling.
See l
1 NRC at 190, 202-3.
Therefore, the Appeal Board found that there were no i
environmental costs unique to the river follower method of supplementary 1
cooling.
However, environmental costs ascertainable only as the plan gained greater concreteness after the construction permit was issued have not been l
considered by the NRC.
It is appropriate that they be considered now, because the plan is now more definite and measures to mitigate impacts may be more apparent.
However, absent a determination of significantly increased environmental impacts, we will not consider issues concerning the overall l
l I
l l
-acceptability of the river follower method of cooling. This does not mean we are precluded from considering adjustments to the design used for this method of cooling.
For example, we may consider the impacts of a change in intake location, but not the fundamental alternative of dry, cooling towers.
C.
Effect of Consideration by Other Agencies In addition to considering the extent to which these issues were evaluated at the construction permit stage, we must also consider the effect that should be given to determinations by other agencies concerning these matters.
While an agency must be cautious in claiming that another agency has addressed and conclusively determined an issue, see Federal Trade Commission v. Texaco, 555 F.2d 862, 881 (D.C. Cir.1977), cert. denied, 431 U.S. 974 (1977), for NEPA purposes some degree of reliance has been upheld. The Council on Environmental Quality, with responsibility for overseeing implementation of NEPA, has issued.
regulations calling for lead agencies when more than one federal agency is involved in a project. 40 CFR 1502.5.6 (1981); see also, Silentman v. Federal Power Commission, 566 F.2d 237, 240 (D.C. Cir. 1977).
But cf., Jones v.
District of Columbia Redevelopment Land Agency, 499 F.2d 502, 510 (D.C. Cir.
1974), cert. denied, 424 U.S. 937 (1975) (requiring each of three agencies considering a project seriatim to prepare an EIS, but not addressing the extent to which one agency could depend on the EIS of another).
The question is the extent to which one agency may rely on an EIS prepared by another agency. The rule of reason which applies to NEPA in other circumstances should also apply here.
See Natural Resoures Defense Counc.il v.
Morton, 458 F.2d 827, 834, 837 (D.C. Cir. 1972). Thus, needless redundancy
h 63 -
J should be avoided.
In Natural Resources Defense Council v. Callaway, 524 F.2d 79 (2d Cir.1975), for example, the court said that while a federal agency could not abdicate its responsibility by allowing a non-federal entity seeking a permit to prepare the EIS, the situation was different when a second federal agency was involved.
Because federal participation was assured, the agencies could decide for themselves which would be the lead agency and would prepare the EIS.
_Id. at 86; see also, Sierra Club v. Morton, 400 F. Supp. 610, 645 n.60 (N.D. Ca.1975), modified on other grounds sub nom Sierra Club v. Andrus, 610 F.2a 581 (9th Cir. 1980), rev'd on other grounds sub nom California v.
Sierra Club, 101 S. Ct. 1775; 63 L.Ed.2d 101 (1981) (only one of two federal 8
agencies passing upon a plan need do an EIS).
Even an analysi,s by a state agency may be given substantial weight.
It may be adopted if it is first reviewed by a federal official exercisir.g independent judgment. Trinity _
Episcopal School Corp. v. Harris, 445 F. Supp.
204,222-23(S.D.N.Y.),rev'd i
on other grounds sub nom Karlen v. Harris, 590 F.2d 39 (2d Cir. 1978), rev'd sub nom Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 l
(1980) (per curiam), District Court opinion aff'd, 652 F.2d 54 (1981); see Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), LBP-78-20, 8 NRC 281, 282 (1978).
This does not mean that a federal agency may completely abdicate, its NEPA responsibilities. Although there may be an EIS prepared by another federal l
agency, each agency must consider environmental consequences at every stage of its decision.
Silentman, supra, 566 F.2d at 241.
It may do this by accepting, modifying, or even rejecting the analysis of the lead agency.
_Id. at 240.
Henry v. Federal Power Commission, 513 F.2d 395, 407 (D.C. Cir.1975);
64 -
Tennessee Valley Authority (Phinps Bend Nuclear Plant, Units 1 and 2),
ALAB-506, 8 NRC 533, 546-48 (1978).
The Appeal Board, in its decision on the Limerick construction permit, provided guidance on the type of review which NRC must perform on an environmental analysis done by another federal agency.
In' approving NRC reliance on an EIS prepared by the Delaware River Basin Connission (DRBC), the Appeal Board stated that it was " entirely appropriate for this Commission's staff to use that statement as a basis for its own assessment." 1 NRC at 189.
While it is not entirely clear how extensive a review the Appeal Board believed the Staff had performed of ORBC's findings, we believe that the Appeal Board was approving reliance on the scientific data and expert scientific evaluation i
of the data on which the DRBC based its conclusions.
These " underpinnings" would not require independent review by the Staff.
See 1 NRC at 171.
Conclusions based on these underpinnings as to the nature and extent of environmental impacts and the ultimate finding as to the total environmental impact of the project were to be reviewed to see if the Staff concurred in them.
Iji. at 186.
If the Staff concluded that some impacts had not been adequatelyconsidered,itwastoprovidefurtherinform[tionontheimpactsin
/
1 t
question.
In the construction permit proceeding such information was provided through supplementary testimony.
Id.3_2_/
More recently, the Commission addressed the question of whether EPA's findings on the acuatic impacts of a once-through cooling system may be treated by the NRC as conclusive. See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2) CLI-78-1, 7 NRC 1 (1978),
aff'd sub nom New England Coalition on Nuclear Power v. NRC, 582 F.2d 87 (1st Cir. 1978).
It concluded they may be.
In doing so, the Commission stated:
But perhaps the strongest reason for accepting as conclusive the EPA determinations of aquatic impact is to avoid protracted relitigation of these factual issues. Where litigants have had one full and fair opportunity to contest a particular issue, they need not be given a second opportunity to reopen the whole matter before another tribunal where the same issue is relevant.
7NRCat26(footnoteomitted.)N This theme of not requiring relitigation of matters before a second forum was repeated by the Court of Appeals. See New England Coalition on Nuclear Power v. NRC, 082 F.2d 87, 98-99 (1st Cir. 1978).
However, in Tennessee Valley
-32/ Our doubts about the extent of the NRC staff review approved by the Appeal Board stem from a comparison of the statement "without independently reviewing their underpinnings, the Limerick FES adopted the cost / benefit findings and conclusions contained in the DRBC impact statement" (1 NRC at 171) with the statement, "the staff went far beyond a mere uncritical factoring of the ORBC findings into its cost / benefit analysis....
[T]he staff reviewed DRBC's final environmental impact statement on the entire Point Pleasant Diversion project."
(1 NRC at 186.) We believe our interpretation resolves the apparent inconsistency and is consistent with the teachings of the judicial and NRC decisions discussed in this memorandum.
33/
In Seabrook, the parties appearing before the NRC had participated in the 3
EPA hearing.
Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-506, 8 NRC 533, 545-47 (1978), the Appeal Board emphasized that unless there is clear statutory authority precluding the NRC from performing a NEPA review, the NRC must fulfill its NEPA duties.
It may rely on the EIS of another agency, but it is not required to do so.33,/
In Seabrook, the Commission cited a second reason to rely on EPA's evaluation of water quality impacts.
The Commission concluded, 7 NRC at 24, 26, and the First Circuit agreed, 582 F.2d at 98, that section 511(c)(2) of the Federal Water Pollution Control Act (now called the Clean Water Act), 33 U.S.C.
1371(c)(2), would preclude the NRC from examining the impacts determined by EPA's evaluation.
Hence, NRC was to accept EPA's determination of impacts and factor those impacts into its cost / benefit analysis.
Cf., Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 NRC 702, 712-15(
511(c)(2) precludes NRC from imposing water quality monitoring provisions on a permit when that monitoring is not required by EPA).
In this proceeding, as at the construction permit stage, we are urged that consideration of certain matters by the NRC is not necessary because they have been considered by the DRBC. On March 17, 1971, the Point Pleasant l
Pumping Station, the Bradshaw Reservoir and Pumping Station, and the l
34/
In Phipps Bend, the other agency which prepared an EIS, the Tennessee Valley Authority, was also the applicant for the license from the NRC.
I
transmission main to the East Branch of the Perkiomen Creek were added to DRBC's Comprehensive plan for the Delaware River Basin.EI In connection with this action, the DRBC prepared a final statement of environmental impact. This was updated and presented to the Council on Environmental Quality as a Final Envir.onmental Impact Statement (FEIS) in 1973.
It was on this statement that the Appeal Board permitted NRC to rely in the Limerick construction permit proceedings.
In 1979 both PECO and the NWRA filed applications with the DRBC to commence construction of the Point Pleasant Diversion project.
The DRBC prepared an environmental assessment in response to these filings and in August 1980 issued a negative declaration on the impact of changes since the original FEIS.
This was followed by decisions on February 18, 1981, approving the applications.
Subsequently, the District Court for the Eastern District of Pennsylvania approved the negative declaration, neting that the modifications to the project essentially involved downscaling the project's size. Delaware Water Emergency Group v. Hansler, i
No. 80-4372 (E.D.Pa.
Aug. 17, 1981).36/
l Many matters which have changed since the issuance of the construction permit for Limerick have been considered by the DRBC.
For example, water l
l 35/.See Philadelphia Electric Company (Bradshaw Reservoir, Pumping Station and l
T Rnsmission Main), DRBC No. D-79-52CP, slip op. at 4 (Feb. 18, 1981) l (filed in this proceeding as an attachment to Applicant's Answer to l
Petition for Intervention of Del-Aware Unlimited, Inc.
(Oct. 7, 1981)).
36/ The approved capacity of the proposed Bradshaw Reservoir, however, has been doubled from 35 to 70 million gallons.
See Philadelphia Electric Co.
l (Bradshaw Reservoir, Pumping Station and Transmission Main), DRBC No.
l D-79-52CP, slip op. at 3 (Feb. 18, 1981).
quality compatibility between the Delaware and the Perkiomen has been considered explicitly.
See Philadelphia Electric Co. (8radshaw Reservoir, Pumping Station and Transmission Main), DRBC No. D-79-52CP, slip op. at 5 (Feb. 18, 1981). When matters have been the subject of consideration by the DRBC, NRC need not ignore the DR8C's work and proceed as if the matters had never been studied.
Nor, however, may the DRBC's estimation of impacts be adopted without further inquiry. Other changes followed both the construction permit and DRBC decisions.
If these changes are significant, NRC must do its own independent evaluation of them in its FES because they have not yet been considered in a NEPA review.
The Staff has indicated (Tr. 415) that in evaluating the matters considered by the DRBC, it will engage in the same type of review which the Appeal Board endorsed at the construction permit stage. We interpret this to mean that the staff will do an independent review of the findings and the cost / benefit analysis performed by the DR8C. The underlying scientific data and inferences drawn from it through the exercise of expert scientific evaluation of the data may be adopted by the NRC staff without independent evaluation.
However, the NRC must exercise independent judgment with respect to conclusions about the environmental impacts based on interpretations of such basic facts.
The uaderlying scientific data and the direct basic factual conclusions drawn from them will not change due to the context or perspective from which the agency views them. The environmental impacts weighed in the cost / benefit analysis, however, may be different when viewed in the context of a different or modified project.
Mitigation measures which may not seem worthwhile from one perspective may have merit from another. Hence, these
C_f., Federal Trade Commission v.
matters must be independently assessed.
f Texaco, supra, 555 F.2d at 881 (FTC not collaterally estopped from relitigating issue previously resolved by Federal Power Commission because agencies had
,different perspectives and different substantive jurisdiction.)_
The Board believes this type of review will be appropriate.
Such a review would follow the guidance of the Appeal Board concerning reliance on the DRBC, and would be consistent with precedent allowing rel'ance on analysis by another federal agency if the analysis is subject to some independent review.
The Appeal Board found that DRBC is a federal agency for NEPA purposes.
1 NRC at 187. While Judge Van Artsdalen expressed doubts about DRBC's status as a NEPA agency in Delaware Water Emergency Group v. Hansler, No. 80-4372, slip op. at 17 (E.D.Pa. Aug. 17,1981), he did so in dictum only.
Other
]
federal judges, while not explicitly holding that the DRBC is a federal agency for the purpose of NEPA, have acted upon that assumption.
See, e.g., Bucks County Board of Commissioners v. Interstate Energy Co., 403 F. Supp. 469 (E.D.Pa. 1975); Borough of Morrisville v. Delaware River Basin Commission, 399 F. Supp. 469 (E.D.Pa.1975), aff'd, 532 F.2d 745 (3d Cir.1976). We find these decisions, together with the holding of the Appeal Board in the Limerick construction permit decision,1 NRC at 187, persuasive authority that DRBC is a NEPA agency for the purposes of preparing an EIS.
Even if we were to conclude that it is a state agency, however, the type of review we believe the Staff will perform satisfies the criteria as set forth above for reliance on state agency actions.
l
We are directed to a provision in the Delaware River Basin Compact which we are told creates a preclusion of the nature discussed in the Seabrook and Phipps Bend cases, supra.
Section 15.1(s)1 provides, in part:
Nathing contained in this Act or in the Compact shall impair or affect the constitutional authority of the United States or any of its powers, rights, functions or jurisdictions under other l
existing or future legislation in and over the area or waters which are the subject of the Compact including projects of the Commission:
provided, that whenever a comprehensive plan, or any part or revi-sion thereof, has been adopted with the concurrence of the member appointed by the President of the United States, the exercise of any powers conferred by law or any officer, agency or instrumen-tality of the United States with regard to water and related land resources in the Delaware River Basin snall not substantially conflict with any such portion of such comprehensive plan....
Pub. L. No.87-328, 75 Stat. 688 (1961) (emphasis added).
The Comprehensive Plan, to which all parts of the Point Pleasant diversion have been added, deals with immediate and long range development i
and use of the water resources in the basin.
Pub. L. No.87-328, 13.1, 75 Stat. 688 (1961).
DR8C's function is to regulate water supply and control consumptive uses of water in the basin through development of the Comprehensive l
Plan. See 1 NRC at 191-92. We do not believe that tne NRC is precluded by the Compact provision from considering all environmental questions arising from the diversion. We note that this provision is much less specific than was the l
l section of the Federal Water Pollution Control Act which precluded NRC consideration of water quality impacts in Seabrook and Phipps Bend.
- However, in light of the DRBC's role in determining the uses for water in the basin, we believe that it bars us from reevaluating the DRBC decision to allocate water to the Limerick facility operating in the river follower mode.
Beyond this however, we do not find that this precludes us from considering environmental l
l
~
~.
impacts in the manner we have discussed for situations where a federal agency has done such an evaluation previously. Thus, although we will not look at the allocation decisicr. itself, we might determine whether changes in the plan since the construction permit stage call for new mitigation efforts or would cause significantly increased environmental impacts such that overall alternative cooling methods should be examined.
In addressing contentions concerning the supplementary cooling water system, the Board will therefore consider the effect of the preclusion clause.
We note, however, that although the District Court in Hansler, No. 80-4372, slip op, at 7, indicated there was federal concurrence in the February 18, 1980 DRBC decision, we are not aware of anything before the Board which would indicate that the federal representative concurred in any other DRBC decision.
Without such concurrence, the statutory preclusion of NRC NEPA review is not applicable.
Because the Staff is presently undertaking its environmental review, we do not know the precise use it will make of the DRBC materials. We have stated that the type of use we believe the Staff contemplates is permissible under NEPA.
Therefore, after the Staff supplies its environmental review of the supplenentary cooling water system, we expect proponents of admitted contentions concerning the supplementary cooling water system (Contentions Nos.
l l
V-14, V-15, V-16(a) and V-16(b)) to further refine their contentions. Where the Staff has elected to rely upon material from the DRBC environmental evaluations, the specific reasons why such reliance is inappropriate in light of our statements here must be stated. We recognize that our discussion of 1
i t
what may be relied upon provides only general guidance.
However, it the Staff's role in the first instance to determine how to use the DRBC material.
The Corps of Engineers is presently considering some of the matters contained in the contentions presented to us.
For example, the Corps is evaluating the impact of the Point Pleasant intake on the short-nose sturgeon.
The discussion above on the weight to be given DRBC findings under NEPA applies equally to findings by the Corps. There is no statutory provision precluding NRC from performing its NEPA duties with regard to matters considered by the Corps.
Therefore, these matters will have to be addressed by NRC in its FES.
The Corps may have completed its study before the NRC DES is issued and its findings may be factored in. After the Staff's environmental review of the cooling water system is issued, we will expect intervenors to refine contentions which address areas where the NRC Staff has chosen to rely on the Corps in the same manner as we have indicated we will expect refinement of contentions dealing with reliance on DRBC materials.
In addition to NEPA concerns, we have heard arguments that we must suspend this proceeding until several agencies issue necessary permits for the supplementary cooling water system. We see no reason to grant such a continuance.
It is much more efficient for this proceeding to progress, recognizing that other agencies, state, federal, and local, will simultaneously be working on permit requirements. See Wisconsin Electric Power Company (Koshkonong Nuclear Plant, Units 1 and 2) CLI-74-45, 8 AEC 928, 930 (1974).
While it is true that the Applicant must have either certification from the state under section 401 of.the Clean Water Act or a waiver by the state of the need for such certification before a license can issue, other permits are not a
prerequisite to issuance of an operating license.
Nor is this the proper forum to litigate whether other agencies should issue permits. Therefore, we may close our record without a showing that all permits have been received.
D.
Portion of the Neshaminy Water Supply System to be Considered by NRC In its contentions, Del-Aware addresses environmental impacts not only from the parts of the Point Pleasant Diversion which will be utilized just to supply supplementary cooling water to Limerick, but also from the parts which will be used solely or jointly by the Neshaminy-Water Resources Authority (NWRA).
Del-Aware maintains that environmental effects of the entire Neshaminy Water Supply System (see Figure A) should be considered by the NRC. The Applicant argues that impacts of those parts of the water supply system owned by the NWRA but utilized to supply water to Limerick (the Point Pleasant intake and pumping station and the transmission main to the Bradshaw Reservoir) are not attributable to Limerick.
The Staff apparently believes that the portion of the impacts of the joint part of the system (the Point Pleasant intake and pumping station, the transmission main to the Bradshaw Reservoir and the Bradshaw Reservoir) which is attributable to Limerick must be considered by the NRC, but the impacts of the portion of the system attributable to only the NWRA need not be.
We disagree with the Applicant's position that none of the impacts of the jointly utilized part of the system owned by the NWRA need to be considered by the NRC.
The Appeal Board ruled at the construction permit stage that it was "beyond dispute" that impacts of the Point Pleasant diversion were to be taken into account in the Limerick environmental evaluation to the extent the
was expanded to accomodate Limerick.
1 NRC at 185.E/ The dit
'a A
d apparently included only the impacts of expanding the Point c' version, instead of requiring that all impacts from the diversion be ared.
In doing so, it apparently assumed that a plan for the diversion existed and that the plan for the Limerick cooling system would be added to it.
Moreover, the Appeal Board believed that tho diversion would be built whether or not it was to be utilized by Limerick.
Del-Aware now represents that the entire water supply system either would not be built or would be greatly scaled down if it were not being used, in part, to supply cooling water to Limerick.
(Tr.448.) The Applicant is unable to assure us this is not the case.
(SeeTr.408).}8/ Even so, if we are presented with a rational method of separating and determining what the incremental impacts of this addition are, we might limit our consideration to these incremental impacts.
Certain problems would remain.
For example, the fact that the utility (PECo) is paying for the intake may make the impacts from the intake 37/
If the diversion were not considered in conjunction with the Limerick cooling water system, the segment of the cooling system which would be covered by the NRC's NEPA review would not be functionally useful. Thus, it would not satisfy the test of independent utility for segmenting NEPA.
See discussion infra on independent utility.
_38/ The DRBC apparently believes the Neshaminy Water Supply System is needed.
See Neshaminy Water Resources Authority (Neshaminy Watershed Plan - Water Supply) URBC No. U-bb-/b-UF(8), slip op. at 9 (Feb.18,1981 (filed in this proceeding as an attachment to NRC Staff Answer to Amended Petition to Intervene of Del-Aware Unlimited (Nov. 16,1981)).
This does not, of course, mean the project would necessarily be built.
attributable to it.
Cf., Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179,196-98 (limited work authorization required for county road expansion paid for by applicant). Further, it appears likely that environmental impacts of a jointly used intake system and reservoir result from the total size and operation of the system and that they cannot meaningfully be separated.
In the absence of such a methodology permitting separation, we will consider the total environmental impacts of the Point Pleasant intake and pumping station, the transmission main to the Bradshaw Reservoir, and the Bradshaw Reservoir itself.
To a large extent, questions about how impacts are to be apportioned are answered by the requirement under NEPA that cumulative impacts be considered.
In Kleppe v. Sierra Club, 427 U.S. 390 (1976), the Supreme Court required that when pending proposals have cumulative or synergistic environmental effects their environmental consequences be considered together.
_Id_. at 410; see also Atchison, Topeka and Santa Fe Railway Co. v. Alexander, 480 F. Supp. 980, 996 (0.0.C. 1979), aff'd in part and rev'd in part on other grounds sub nom Izaak Walton League v. Marsh, 655 F.2d 346 (D.C. Cir. 1981).
In Kleppe, the Court referred to proposals pending before the same agency. Arguably, here the l
l overlapping proposal (NWRA use of the Point Pleasant diversion) is pending before the DRBC, a different agency. We do not believe this is a significant distinction. The impact on the environment is the same whether or not there t
are two agencies involved. As the court recognized in Henry v. Federal Power i
Commission, 513 F.2d 395 (D.C. Cir. 1975), NEPA's purpose must not be i
f
frustrated through divisions of agency responsibilty "that would defeat a comprehensive and integrated consideration by reason of the fact that particular officers and agencies have particular occasions for and limits on their exercise of jurisdiction."
Id. at 406. Thus, in Henry it was not sufficient that the FPC consider only the incremental environmental damage of the tap and valve part of a coal gasification project. Although the FPC would authorize only the tap and valve facilities, the environmental impacts of the remainder of the project (subject to the consideration of several other federal agencies) had to be considered by the FPC to satisfy NEPA.
Operation of the Point Pleasant diversion is similarly a single project all portions of which should be considered together. Only if it can be shown that Limerick does not contribute to the cumulative environmental impacts of the jointly used parts of the Point Pleasant diversion (e.g., the Point Pleasant intake and the Bradshaw Reservoir) is their consideration in the NRC NEPA review not required.
The parts of the water supply system which will be used only by the NWRA (i.e., the transmission main from the Bradshaw Reservoir to the North Branch of the Neshaminy Creek, the North Branch Water Treatment Plant and the transmission mains from the treatment plant) are a different matter. Their consideration by the NRC is not required.
Del-Aware argues that this part of the system would not be built by the NWRA or would be vastly. reduced in size if it were not for the need to build the Point Pleasant intake and Bradshaw Reservoir for use by Limerick.
(Tr. 448).
However, the test for determining whether a project has been illegally segmented for NEPA purposes is not whether one segment would be not built but for the other.
Caution is necessary in dividing a project into segments for NEPA purposes in order to avoid arbitrary divisions which may hide significant total impacts.
Consideration of a number of segments with small impacts while not considering their cumulative consequences is proscribed.
The test for whether a project may properly be divided for purposes of environmental impacts has three parts.
First, does the segment have independent utility?
Second, does approval of the segment under consideration foreclose alternatives to the part of the project not being considered?
Finally, is the entire plan sufficiently definite such that it is highly probable it will be carried out in the near future? See Swain v. Brinegar, 542 F.2d 364, 369 (7th Cir.1976) (en banc); Duke Power Company ( Amendment to Materials License SNM-1773 - Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-651,14 NRC 307 (1981).
Consideration of independent utility has generally focused on the utility of the segment currently being evaluated.
Clearly the segment of the project i
1 which we have already indicated should be considered has independent utility i
i l
because, even if the NWRA never completed its branch of the total system, the part considered will supply cooling water to Limerick. E Because the present situation differs from the usual case in which the segment under consideration is expected to be completed before the other segment, one might argue that there must be independent utility to both parts of the project.
The question changes from "Will this be useful if the other segment is not built?" to "Would the rest be useful without this?" The present proposal, however, contains two projects each of which has independent utility. The one serves to supply cooling water to Limerick; the other supplies water to the area served by the NWRA.
The fact that the two projects are made compatible does not necessitate their joint consideration for NEPA purposes.
See Sierra Club v. Callaway, 499 F.2d 982, 987 (5th Cir. 1974). Even if the two projects are " intimately related," it may be appropriate to treat them separately.
See Kleppe v.
Sierra Club, 427 U.S. 390, 408-414 (1976); Sierra Club v. Hodel, 544 F.2d 1036, i
39/ Recerstly, in Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units l
1, 2, and 3), ALAB-664, 15 NRC (Jan. 6, 1982) petition for review grated, April 16, 1982, the ApFeal Board reversed a holding by a Licensing Board that a proposal had independent utility, holding that independent utility could not be determined prior to issuance of the Staff's environmental assessment. That case is distinguishable.
In that instance a majority of the Appeal Board found that it was impossible to datermine in the early stages of litigation wnether the project had l
independent utility and whether there were a variety of options available l
for the fui.ure.
Cf., Northern States Power Co.
(Prairie Island Nuclear I
Cenerating Plant, Units 1 and 2), ALAS-4bb, / NRC 47-51 (1978) (NEPA r equires consideration only of the action and its unavoidable consequences; when there are several options for the future, an EIA.may be l
limited to the present proposal). Here, because the segmentation will l
t ake place between two concurrent projects, the utility of and options for each segment are clear even before the Staff's EIS has been issued.
I
1039-41 (9th Cir.1976). The projects have distinctly different purposes and they are independently useful.40/
It would be incorrect to say that the presence of the cooling water system for Limerick has no effect on the means by which the NWRA gets water.
The intake location and the reservoir become fixed although the remainder of the project may change. However, Limerick is not foreclosing options the NWRA might have.
Once again, the fact that the division of environmental impacts in this case is being done between two concurrent projects instead of between two projects, one of which follows the other in time, is significant. The NWRA's options are not being foreclosed as a result of Limerick because the NWRA has already committed to pursue one of those options.
The NWRA has applied to the DRBC to have its chosen option added to the Comprehensive Plan and this has been done. This Board does not have the function of reviewing DRBC's determination that NWRA's water supply project is a beneficial and worthwhile use of the water resources of the Delaware River.
Congress, in approving the Compact, made a judgment that the DRBC should determine what use should be made of the resources of the Delaware River. We must avoid interfering with DRBC's decisions in that respect.
CJf., United States Research and Development l
Administration (Clinch River Breeder Reactor), CLI-76-13, 4 NRC 67 (1976) (ERDA l
i I
40/
In Henry, supra, the court did not permit the FPC to consider only tap and l
valve facilities when they were part of larger project.
However, the tap l
and valve facilities would not appear to be useful without the rest of the project. Nor did they have a separate purpose from the rest of the project.
l
EIS dispositive on issue of need when ERDA had overall planning function for demonstration breeder reactor project).
In addition, by proposing a particular plan to the DRBC, the NWRA has already made its own decision with the effect of foreclosing other options it might have had. Thus, there is very little impact our approval of Limerick can have on the choices available to NWRA.33/
The third part of the test for segmentation looks at how definite the plan is for the part of the project not being included.
Because segmentation is not based on time in this case, this element of the test is inapplicable. The concern that expenditures made after approval of the first segment but before proposal of the second will distort the environmental review of the latter, see Susquehanna Valley Alliance v. Three Mile' Island Nuclear Reactor, 619 F.2d 231 (3d Cir. 1980), cert. denied, 449 U.S. 1096 (1981), is not applicable when the second segment is a concurrent project.
The degree of certainty about future actions is therefore irrelevant. Moreover, the NWRA project has already been subjected to an environmental review by the DRBC.
In the ordinary situation where one segment follows another in time, cumulative impacts of the first and second segment must be considered before the second segment can proceed. Thi: is in lieu of a single impact statement i
encompassing all impacts including those which are cumulative. See Kleppe v.
Sierra Club, 427 U.S. at 414 n.26; Florida Power and Light Company (Turkey 4]/ We recognize that if the Limerick plant did not exist, the details of the NWRA water supply project might be different.
However, as noted above, the fact that two projects have been designed to be conpatible does not mean they must be considered together for NEPA purposes.
Point Nuclear Generating, Units Numbers 3 and 4), ALAB-660,14 NRC 987,1009 (1981). Here, because the two segments are concurrent, there will be no later EIS which will consider cumulative impacts. Therefore, if we had been directed to any cumulative impacts arising from the portion of the project solely attributable to the NWRA, we might consider them.
However, no sucn impacts have been pointed out to us and we envision none other than the impact on the total water resources available for allocation by the DRBC.
As we found above, DRBC has sole authority to make water allocation decisions.
Indeed, DRBC has already evaluated the two projects together under NEPA. As discussed supra, we recognize that there may be cumulative impacts from the jointly utilized parts of the system.
These will be considered by the NRC.
In light of the above discussion, we hold that the part of the Neshaminy Water Supply System which is utilized solely by the NWRA need not be considered in the NRC's environmental review of Limerick.
E.
Impacts of Construction Some of Del-Aware's proposed contentions seek to litigate environmental impacts of Ionstruction of portions of the supplemental cooling water system.
l Del-Aware argues that this Board, which is to rule on whether the Limerick l
facility should receive an operating license, has jurisdiction to consider the impacts specified.
Jurisdiction over these impacts of construction would, according to Del-Aware, arise because of changes in both construction plans and circtnstances such that the impacts as changed were not evaluated at the construction permit (CP) stage.
The changes alleged since the CP approval are an alleged change in location of the proposed Point Pleasant intake
(Contentions V-15 and V-16a) and the designation of the Delaware Division, Pennsylvania Canal on the National Register of Historic Places (Contention V-13), and the determination by the Pennsylvania historic preservation officer that the Village of Point Pleasant is eligible for the National Register (Contention V-14).
In addition, as we noted (note 36, supra), the proposed capacity of the Bradshaw Reservoir has been doubled from 35 to 70 million gallons.
We conclude that, under the Commission's licensing procedures, subsequent to the construction permit it is the NRC Staff which has jurisdiction, at least in the first instance, to consider changes in impacts of construction resulting from changed circumstances.
However, as we discuss below, we are concerned that some of the contentions which allege impacts after operation of the supplemental cooling water system could be rendered substantially moot prior to consideration of their merits by virtue of the construction of the intake and reservoir. We are also concerned that the Applicant will incur the time and expense of major construction work not previously reviewed in a licensing l
proceeding which may later have to be undone in whole or in part in the event l
we find a change in location or design is necessary to mitigate impacts which would arise from operation. Accordingly, we attempt below to chart an approach which provides for early review by the Staff of construction impacts and early review before the Board of certain operational impacts.
These operational impacts may be greater than thought at the construction permit stage because the proposed construction changes and official recognition of places of historic value were not foreseen.
s_._
The Staff itself agrees with Del-Aware that the Board has jurisdiction to consider construction impacts due to changed circumstances (Tr. 436-37),
and the Applicant apparently does not disagree with respect to construction attributable to the facility (Tr. 463-67). Notwithstanding the view of the parties, the Board believes we do not have jurisdiction to consider construction impacts. However, we do have jurisdiction to consider the operational impacts of construction changes.
The Board's jurisdiction commences with and is governed by the hearing notice issued pursuant to 10 CFR 2.105.42/ The proposed action before us as set forth by the Notice of Opportunity for Hearing (46 Fed. Reg. 42557, August 21,1981) is to consider the issuance of an operating license.
The Notice points out that, consistent with NEPA and 10 CFR Part 51, the Applicant's Environmental Report (ER) " discusses environmental considerations related to the proposed operation of the facilities," and that, in turn, the NRC Staff's EIS will analyze the ER.
t 5
10 CFR 2.717(a). Consumers Power Company (Midland, Units 1 and 2),
ALAB-235, 8 AEC 645, 646-47 (1974); Public Service Company of Indiana, Inc.
(Marble Hill, Units 1 and 2), ALAB-3'6, 3 NRC 167, 170-71 (1976).
See also, Pacific Gas and Electric Company (Stanislaus, Unit 1), ALAB-4E 5 I
RRC ll75, 1177 (19//).
l l
l l
l
The Notice is consistent with 10 CFR Fart 51 which contains the Commis-sion's " Licensing and Regulatory Policy and Procedures for Environmental Protection." $ Section 51.21 provides that the Applicant's operating license stage ER discuss "the same matters described in 51.20" governing the con truction permit stage ER, but only to the extent they differ or reflect new information from that discussed in the construction permit stage EIS. The incorporation by reference of "the same matters described in 51.20" does not require that changes in impacts of construction be considered in the operating license proceeding because 51.20 does not refer specifically to construction impacts. Rather, the list of matters to be considered in 51.20(a) pointedly refers to impacts of the " proposed action" or "the proposal." The proposed action before us in this proceeding is operation, not construction, of the l
facility.
Our view that review of construction changes is to be performed by the Staff is reinforced by the fact that the Limerick construction permit con tains, among the general conditions for the protection of the environment, condition 3.E(3) which provides:
$ 10 CFR 50.57(a)(1) and the Notice of Opportunity for Hearing both require that construction of the'f acility be substantially completed in accordance with the construction permit and applicable requirements before an operating license may issue.
Contrary to Del-Aware's assertion, this-does not support the view that this Board should examine the impacts of Indeed, it confirms that the legal and practical posture of construction.
an operating license proceeding is to examine the question of proposed operation as if the facilty is completed.
Often, construction is substantially complete at the time of an operating license decision by the Board.
It would make no sense for a hearing timed to be complete at that stage to consider impacts of construction.
Section 50.57(a)(1) and the Notice do confirm our view that we may consider construction practices and design where relevant to an issue of the safety or environmental impacts of the proposed operation.
At least two weeks before engaging in a construction activity which may result in a significant adverse environmental impact that was not evaluated or that is significantly greater than that evaluated in the Final Environmental Statement, the applicant shall provide written notification to the Director of Licensing.
Most, and perhaps all, Commission construction permits have a similar
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condition to govern situations where there are changes in circumstances which could change the previously assessed impacts of construction. This condition has been modified for nuclear plants which have construction permits issued more recently than the June 19, 1974 Limerick permits.
The modified version makes clear that the Applicant's environmental evaluation must be a written one, and provides that the prior approval of the Staff must be obtained if there may be significant changes in adverse environmental impacts of construction, as follows:
Before engaging in a construction activity not evaluated by the Commission, the applicant will prepare and record an environmental evaluation of such activity. When the evaluation indicates that such activity may result in a significant adverse environmental impact that was not evaluated, or that is signifi-cantly greater than that evaluated in this Environmental State-ment, the applicant shall provide a written evaluation of. such activities and obtain prior approval of the Director of Nuclear Reactor Regulation for the activities.
Presunably, consistent with NEPA, under the condition in the Limerick CP, the Director of NRR can exercise his authority to stay a construction i
activity which may cause significant adverse impact not previously evaluated, until the NRC Staff can complete its evaluation of the changes.
The conclusion we reach here is in full accord with a decision of the Appeal Board, issued after the initial draf ting of this section, which holds that a licensing board for an operating license proceeding:
i
... can authorize or refuse to authorize the issuance of an operating license.
It does not, however, have general jurisdiction over the already authorized ongoing construction of the plant for which an operating license application is pending, and it cannot suspend such a previously issued permit.
Consumers Power Company (Midland, Units'l and 2), ALAB-674,15 NRC __, slip op, at 3 (May 5,1982) (Footnote omitted).
Accordingly, Del-Aware's allegations that changes in construction impacts-due to either changes in proposed construction or the changes in the recognition of the historical value of areas which may be impacted by construction should be directed as a request. for action to the Director of Nuclear Reactor Regulation pursuant to 10 CFR 2.206(a).
_Id. at 4-5; see also Portland General Electric-Company (Trojan Nuclear Plant), ALAB-451, 6 NRC 889, 891 at n.3 (1977).41/
Although we could refer Del-Aware's contentions alleging changes in construction impacts (V-13, V-14, V-15, V-16(a) and 16(b)) to the Director,45/ we leave it to Del-Aware to determine whether it wishes to E We note that even if we had determined that this operating license Board had jurisdiction to consider environmental impacts of construction, the NRC Staff would have been called upon to provide its analyses and conclusions as part of the testimony before the Board.
5/ Cf. Public Service Company of Indiana, Inc. (Marble Hill, Units 1 and 2), ALAB-530, 9 NRC 261 (1979) (referring matter in tardy motion to reopen hearings to the Director).
take such action. Furthermore, we observe that it may be incumbent upon Del-Aware to better specify to the Director the alleged changes in construction impacts it believes to be significant and not previously evaluated.
Portions of its contentions are too broad and vague to properly provide notice of this.
i We note that regardless of whether Del-Aware files a request for action before the Director, the Applicant and NRC Staff have an independent obligation to evaluate any impacts within the purview of condition 3.E(3) of the Limerick construction permit.
This doe, not end the matter. Del-Aware also alleges that there will be significant operational impacts not previously anticipated due to changes in circumstances since the construction permit stage.
In our view, some of these alleged impacts, if proven, will be modifiable largely (or perhaps only) by changes in proposed construction. The Board has rewritten these contentions in a manner to facilitate their litigation as follows:
Contention V The esthetic impacts of the Point Pleasant pumping station, and associated hillside clearance and river-edge rip rap wall will adversely affect the peace and tranquility of the proposed Point Pleasant Historic District.
Contentions V-15 and V-16a (in part) - The intake will be relocated such that it will have significant adverse impact on American shad and short-nosed sturgeon. The relocation will adversely affect a major fish resource and boating and recreation area due to draw-down of the pool.
Contention V-16a - Noise effects and constant dredging maintenance connected with operations of the intake and its associated pump station will adversely affect the peace and tranquility of the Point Pleasant proposed historic district.
Contention V-16b - Seepage of water and toxics from Bradshaw Reservoir will cause a risk of groundwater contamination and hydraulic saturation.
While it is true that many environmental impacts of operation can best be mitigated by planning before construction, the opportunity for this to be considered is normally available at the construction permit stage.
- However, the operational impacts in the portions of the contentions summarized above allegedly are caused or substantially exacerbated by changes since the construction permits were issued. Therefore, there was no prior available hearing forum to consider those impacts for the NRC Limerick NEPA evaluation process.
It is now within the jurisdiction of this Board to consider environmental impacts of operation.
Accordingly, in order to avoid the risks of rendering the above portions of contentions substantially moot and/or requiring the Applicant to undo costly (in time and money) construction work, we determine that every effort should be made to resolve the above summarized issues prior to construction of the Point Pleasant intake and associated pump station and the Bradshaw Reservoir.
In conjunction with our examination of these operational impacts, we will compare the alternatives, e.g., designs and locations, under NEPA.
For that purpose we will look at the Staff's findings under condition 3.E.(3) of the construction permit or requests pursuant to 10 1'
CFR 2.206 concerning construction impacts.
The Applicant shall advise us within thirty days of the service of this Order of the proposed schedule for commencement of construction of the above facilities. Further, at the time a firm schedule for construction is established the Applicant shall provide formal notice of its intention to begin construction work at least forty-five days (45) prior to the actual commencement of construction. The NRC Staff, the Applicant and Del-Aware, within thirty (30) days of the service of this Order, shall jointly submit a
schedule for the filing of testimony and litigation of the above issues such that the goal of reaching a decision on those issues prior to construction can be achieved.
It is hoped that informal discovery will suffice, particularly given the large amount of information which Del-Aware appears to possess on the subject.
For purpose of the identified limited issues, there is no need to await the issuance of the Staff's complete formal environmental statements on all issues related to environmental impacts of operation of Limerick. The Staff should give priority to completing its review of the environmental impacts alleged in these contentions so that a decision on these issues can be made by this Board prior to construction of pertinent facilities.
If this cannot be done, further interim actions may have to be considered by the Board, the Staff and/or the Commission to protect the status quo with respect to unreviewed effects of operation on the environment which can largely only be mitigated by consideration prior to construction of pertinent cooling water facilities.
(The Staff would be free, of course, to later incorporate the analysis in its environmental statements).
In preparing the analyses and testimony, the parties may rely on any evaluations of the changes performed by other government agencies to the extent discussed elsewhere in this Order.
Our rulings on the particular contentions addressing environmental impacts of the supplementary cooling water system follow.
1 E
i
. s s
s K
F.
Particular Contentions i
V-2 (F0E)
Th.is contention alleges that the impact of the Limerick plant on the Schuylkill River has not been adequately assessed with regard to radiation contamination, low flow, and drinking water quality.
Radiation. contamination and water quality impacts were considered by the Licensing Board in the construction permit proceeding.
7 AEC at 1112, 1138-41.
No new infonnation is alleged.
Moreover, determination of the water quality impacts resulting from
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an effluent discharge are committed by law under sections 401, 402, and 511 of the Clean Water Act to the Environmental Protection Agency and the State.
NRC must use EPA's detennination in its c nefit analysis rather than reaching its own determ'ination. There is, thu, nothing to litigate on water quality impacts.
1 Low flow as an issue appears to challenge the allocation of cooling water for Limerick by the DRBC.
The allocation decision may have been connitted to the DRBC by law.
Furthermore, there is no indication of changed; circumstances since the NEPA evaluation at the construction permit stage.
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Finally, we note the vagueness of this contention. The specific mechanisms which will cause the feared impacts are not specified.
Nor are the impacts themselves described with particularity.
The Staff and the Applicant object to this contention. The Board does not admit it.
91 -
r V-6 (CEPA)
This contention asserts that use of Delaware River water to cool Limerick will adversely affect the Philadelphia water supply.
No basis is given for the assertion, and no further specificity is supplied.
Thus, the contention is vague.
Because this contention is so vague that the Applicant and Staff.are not on notice as to what will be litigated, we do not admit it.
Furthermore, this is a water allocation decision.
NRC could be statutorily precluded from considering it by the Delaware River Basin Compact.
Even if this contention were sufficiently specific to admit, we would have to consider whether, in light of the information we are requesting in connection with contention V-16, we are precluded from litigating it.
V-11 (Del-Aware)
This contention alleges that the supplementary cooling water system will cause serious unevaluated damage to the environment and economy of Bucks and Montgomery Counties and the Delaware River Valley. This contention is very broad as well as vague.
It appears that where Del-Aware is concerned about a particular impact of the supplementary cooling' water system, these impacts have been addressed specifically in other contentions.
In addition, this contention encompasses certain construction impacts, impacts of the NWRA portion of the water supply system, and impacts considered at the construction permit stage which we have indicated are not open for consideration in this proceeding.
The Applicant objects to this contention. The Staff indicates it may be admissible in part.
Believing the admissible parts are covered by other contentions, we do not admit it.
4__-
V-12 (Del-Aware)
This contention asserts that an operating license should not be issued for Limerick because the Applicant has not shown that the supplementary cooling water system will not cause substantial injury to the environment and economy of the Delaware River Valley.
As in contention V-11, this contention appears to be a broad introduction to the more specific contentions which follow it.
Indeed, we observe that the basis of this contention indicates that other contentions address more specifically concerns being raised here.
The Applicant and Staff object to this contention. We do not admit it.
V-13 (Del-Aware)
This contention alleges that construction of the intake as presently proposed will have substantial adverse effects on the Pennsylvania Canal, the canal house, and aquatic life in the Delaware River.
All the impacts alleged in this contention result directly from construction work. As discussed above, this Board does not have jurisdiction to consider construction impacts.
Del-Aware may properly raise this matter for NRC consideration by means of a request for action under 10 CFR 2.206(a). However, we do not admit this contention in this proceeding.
V-14 (Del-Aware)
This contention maintains that construction and existence of the Point i
Pleasant diversion will have a detrimental effect on the Point Pleasaat Historical District. As discussed previously, construction impacts are not within the jurisdiction of this Board. To the extent it deals with i
l
construction impacts, this contention is not admitted.
However, impacts arising from the existence of the diversion are a somewhat different matter.
These are impacts which will continue long past the construction phase of the project.
Subsequent to all environmental evaluations of the Diversion including the most recent one by the DRBC, the State Historical Preservation Officer determined that the Point Pleasant Historical District is eligible for listing in the National Register of Historic Places.
This is a sufficiently significant change since the time the construction permit was issued that it merits present consideration.
The Corps of Engineers has stated that it will undertake the appropriate actions pursuant to the National Historic Preservation Act. The Corps is also preparing an environmental assessment of the diversion pursuant to NEPA.
We recognize that the NRC clso must include these matters in its its own evaluation. The extent to which NEPA permits reliance on the environmental reviews of other agencies is discussed above. Reliance on the actions of another agency with respect to the National Historic Preservation Act is also appropriate.
In this respect, we note that the lead agency concept has specifically been approved for projects under the Housing and Community Development Act of 1980, 42 U.S.C.
5320, where complianca with the National Historic Preservation Act is required. See 46 Fed. Reg. 42423 (1981) (to be codified at 36 CFR 801.4(g)).
Moreover, the requirements of the National Historic Preservation Act may be satisfied b.y circulation of the draft environmental impact statement.
36 CFR 800.9. The lead agency concept would apply to the EIS under NEPA and, logically, the aim of avoiding duplicative
work could only be achieved if it also applied under the National Historic Preservation Act.
The Applicant objects to this contention. The Staff finds it admissible.
The Board finds that this is a matter which may best be considered prior to construction of the diversion since, as discussed above, any mitigation found necessary may be simpler before construction.
The Board has rewritten this contention to include only its admissible componer ts, page 87, supra, and admits it as rewritten.
V-15 (Del-Aware)
In this contention, Del-Aware alleges that operation of the intake at Point Pleasant will adversely affect a spawning area-for the Anerican shad and a habitat for the short-nosed sturgeon.
Since the construction permit was issued, and, indeed, since the DRBC completed its environmental assessment, short-nosed sturgeon, an endangered species, have reportedly been discovered in the Delaware River.
This is a change of sufficient significance to merit consideration at this time of the manner in which the sturgeon will be affected by the intake.
The impact that the intake might have on American shad was considered at l
the construction permit stage. We are informed by Del-Aware that since that time the location of the intake has been changed so that it is currently expected to be located in a spawning area for the shad. The Applicant has not disputed that the intake location has been changed.
This is a change of sufficient signficance to warrant present consideration of the impact the intake may have on the shad.
We note that Del-Aware also alleges that since l
i l
l
the construction permit stage, the Delaware River has become an important shad fishery and has been recognized as such by the State of Pennsylvania.
We do not rely on these allegations as a basis for the contention because they are bare allegations without any citations provided as to the source of the information.
However, if true, they are also the types of changes which merit consideration.
These are impacts which allegedly result from operation of the intake owned by the NWRA and utilized by the Applicant and the NWRA jointly.
As discussed above, we will consider impacts resulting from operation of the intake, but if we are shown a reasonable manner for determining which of the cumulative impacts are attributable to the Applicant, we may limit our consideration to those impacts. As always, the Staff may rely on work done by other agencies within the guidelines we have set forth above.
Because changes in the plan for construction may be the best means of mitigating these alleged impacts, if mitigation is found to be appropriate, this contention is one which should be litigated prior to construction. of the intake, as discussed above. To facilitate this, the Board has reworded this contention above (see page 87), in combination with part of contention V-16(a),
i V-16 (Del-Aware) i This contention asserts that operation of the supplementary cooling water system will adversely affect the water quality and water supply of the Delaware River and estuary. The only impact specifically mentioned 'is an increase in the salinity gradient.
As to any other impacts, the contention is vague and without basis.
The Board understands the contention to be that the salinity increase will occur as a result of water withdrawl from the Delaware for the purpose of cooling Limerick. Actually, any salinity increase would be attributable to the total water withdrawal, not just withdrawal for Limerick. As such, it is caused by the DRBC allocation decision.
If the federal representative concurred in the allocation decision, it is connitted to the discretion of the DRBC by section 15.1(s)1 of the Delaware
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River Basin Compact. While the Board is aware that the federal representative concurred in the February 1980 DBRC decision, we do not know his role in earlier decisions or whether the February, 1980 decision can be considered as the operative allocation decision, as distinguished from the earlier DRBC decisions. Del-Aware, the Applicant, and the Staff are to advise the Board within thirty (30) days of the issuance of this order of whether the federal representative can be deemed to have concurred in the operation allocation decision for purposes of applying section 15.l(s) of the Compact.
If the Board decides that the preemption is not applicable, however, it is nevertheless not clear that the Board must consider this matter.
ORBC has considered problems bf water quality and water supply not only as a result of I
allocation of water to Limerick, but in connection with the water needs of the entire region.
Reliance on the DRBC environmental evalution would, therefore, appear reasonable.
In the context of this subject matter, therefore, even if we should find that the statutory preclusion does not apply, Del-Aware would l
l have a heavy burden of specifying why any NRC reliance on analysis by DRBC (or other agencies) was improper.
l l
l
. O The Applicant objects to this contention.
The Staff does not. We defer ruling on it for the present, but we will consider the effect of the statutory preclusion when we receive the information on federal concurrence in the DRBC allocation decision.
V-16(a) (Del-Aware)
This contention asserts that operation of the intake will adversely affect the water resources, peace and tranquility, and historic character of the Point Pleasant Historic District. This contention deals with new information',
subsequent even to the more recent DRBC decision, in two respects. First, the location proposed for the intake has been changed.
Secondly, the State Historic Preservation Officer has determined, as discussed above, that the Point Pleasant Historical District is eligible for listing on the National Register. We consider both these changes potentially significant.
In its statement of basis, Del-Aware mentions the impacts of construction activities. These would seem to be encompassed more specifically in contention V-14.
They will not be included in this contention.
The Applicant did not address this contention in its filing.
The Staff j
believes the contention is admissible. We admit the contention with the expectation that is will be litigated prior to construction of the intake.
Thus, if mitigation is found to be necessary and modification of the construction plans is the best way to achieve it, such mitigation would still l
l be possible. To facilitate such early litigation, the Board has divided and reworded the contention as specified above.
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i lE
V-16b (Del-Aware)
This contention alleges that there is a substantial risk of groundwater contanination and hydraulic saturation due to seepage from the Bradshaw Reservoir and the transmission mains.
It is the Board's understanding after reviewing all the mater.ial filed before it on these issues that the size of the Bradshaw Reservoir has been doubled. For this reason, we will consider this contention as it relates to the Bradshaw Reservoir.
Because we do not perceive that leakage from the transmission mains will have changed from what was anticipated at the time of the construction permit proceeding, we will consider such leakage only insofar as it is inseparable from our consideration of the leakage from the Bradshaw Reservoir (e.g., the cumulative impacts of the two).
The Staff believes this contention is admissible.
The Applicant did not address this contention in its filings. We admit the contention as we have rewritten it, see p. 87, supra, and expect that it will be litigated prior to construction of the Reservoir. This will permit changes to be made in the plan for construction if it is determined that mitigation is necesary for these alleged impacts and if such changes in the plan prove to be the best way to achieve it.
1 V-16c (Del-Aware)
In this contention, Del-Aware maintains that discharge of water into the Perkiomen and Schuylkill will cause toxic pollution and will cause destabilization and flooding of the Perkiomen.
Although the Applicant did not address this contention and the Staff believes it is admissible, we do not admit it.
It lacks specificity.
More
importantly, the impacts on the Perkiomen and the Schuylkill were considered at the construction permit changes.
None of the changes alleged in the filings before us or at the prehearing conference would appear to affect discharges into the Perkiomen or'the Schuylkill. Therefore, we hold that this matter is not appropriate for consideration now.
V-17 (Del-Aware)
This contention alleges that impacts of the portion of the Point Pleasant diversion utilized solely by the NWRA should be treated as impacts of Limerick.
It is completely legal to divide NEPA consideration of a project between agencies if certain tests, discussed above, are met. As we found above, consideration of the part of the diversion project used only by the NWRA is not required.
The Applicant and the Staff object to this contention. We do not admit it because it seeks more than is required by law.
V-18 (Del-Aware)
This contention alleges that the Point Pleasant diversion will cause major dislocation and environmental damage in Bucks County due to induced growth.
It is alleged that growth will be induced as a means of providing a broader base from which the NWRA can collect the cost of its Chalfont plant.
Preliminarily, we note that the type of damage feared is vague and that growth of this type seems speculative.
In addition, the impacts alleged will result from the NWRA portion of the diversion and the need to finance it. As
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discussed above, it is not necessary for the NRC to consider impacts caused by the part of the Diversion used only by the NWRA.
The Applicant and the Staff both object to this contention.
We do not admit it.
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V-19 (Del-Aware)
In this contention Del-Aware alleges that the Applicant has failed to show that the supplementary cooling water system is preferable to alternative systems available to it. The alternatives suggested are storage on the Schuylkill River, dry cooling towers or deletion of unit 2.
Alternatives to the proposed supplementary cooling water system were considered at the construction permit stage.
Only if we were shown that tne environmental impacts of the system had significantly increased would we reconsider the acceptability of this method of supplying cooling water.
No such showing has been made.
Indeed, there has not even been a showing of the availability of the alternatives.
Use of a supplemental reservoir on the Schuylkill, for example, would require approval by the DRBC which has already l
l approved the present system, apparently after considering the option of a reservoir on the Schuylkill.
Nor is there any indication that dry cooling towers are presently a viable option.
The Applicant objects to this contention, but the Staff does not. We hold that is is not an admissible contention.
I L
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V-20 and V-21 (Del-Aware)
These contentions allege that the NRC cannot issue an operating license until the Applicant has received a water quality certification under 401 of the Clean Water Act and permits for discharges into the Schuylkill River and the Perkiomen Creek from the Pennsylvania Department of Environmental Resources and permits from the Corps of Engineers for discharges and obstructions. As discussed above, it is not legally necessary that all such permits be obtained before the operating license is issued by the NRC. Therefore, this contention, objected to by the Applicant and believed by the Staff to be admissible only as to the legal issue of whether the NRC could act without the permits having been issued, is not admitted.
To the extent any arguably necessary permits, such as a
401 certification, are not issued if and when an operating license would otherwise issue, that. legal question can then be addressed.
IV. OTHER CONTENTIONS A.
General Discussion In this section, we rule on the admissibility of the many contentions not already discussed above in connection with the participation of particular parties and the water issues.
With respect to some contentions, the parties agree that the information has not yet been provided fully in PECo's application documents.
In such instances, the contention is reasonably specific at the time in alleging the lack of information.
However, when the information is provided, the contention will have to be made more specific and allege defects based on the information or allege in what respect the
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information is still insufficient.
We have conditionally admitted such contentions.
It is requested that a conditionally admitted contention be made specific at the appropriate future time to be established based on the information later supplied by the Applicant.
The failure to do this, or to explain why the contention then cannot be particularized further in light of the new information, will result in automatic dismissal of the contention.
Informal discovery may proceed on conditionally admitted contentions in the same manner as we discussed below for all admitted contentions. At the time we consider instituting formal discovery, we will welcome the parties' advice as to whether formal discovery should then also begin for conditionally admitted contentions.
It should be noted that as the time for hearing approaches, i
Intervenors will be required to consider expressly whether contentions should be better focused or rephrased in light of circumstances and information available at that time.
However, a decision not to modify a fully admitted contention will not result 1
in its automatic dismissal, unlike a conditionally admitted contention.
\\
With the exception of later written clarification of some of the Probabilistic Risk Assessment contentions supplied by Intervenors, the wording of all contentions discussed below may be found in the single document comprising the coordinated filing of contentions in this proceeding, dated November 24, 1981.
Accordingly, due to their total great length, the coctentions are l
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not repeated verbatim in this Order. As will be seen, given our treatment of the PRA contentions, it is not necessary to include the modifications of the wording of some of those contentions in this Order.
B.
Probabilistic Risk Assessment (PRA) Contentions The Supplemental Petition of Coordinated Intervenors (Nov. 24, 1981) includes one general contention, under the heading Technical Safety Issues, relating to the Probabilistic Risk Assessment performed by the Applicant in response to a request by the Staff.46/ This general contention states:
The Applicant's Probabilistic Risk Asssessment-(PRA),
insofar as it is to be used by the Nuclear Regulatory Comis-sion in determining whether the operation of the Limerick facility may constitute a disproportionate portion of the societal risk from nuclear power reactors, and thus consti-tutes an undue risk to the public due to its siting in a heavily populated area and to its proposed power levels, is inadequate and deficient.
The Supplemental Petition lists 32 Contentions, numbered I-1 to I-32, each of which alleges inadequacies or deficiencies in the PRA or in the proposed comparison by the Applicant and the Staff of the i
-46/ Letter from D. G. Eisenhut (USNRC) to E. G. Bauer, Jr.
j (Philadelphia Electric Co.), Risk Evaluation - Limerick Generating Station, Units 1 and 2, May 6, 1980.
t l
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Limerick PRA and the WASH-1400 PRA. The PRA contentions were advancedbyLEAand/orKeystone.S2/
This Board had some initial uncertainty as to precisely what use would be made by the Staff of PRA in its review of the operating license application (in conformance with 10 CFR Parts 50 and 51) and to what extent the PRA should be considered in this proceeding.
This uncertainty stemmed from consideration of several factors, as discussed below.
1.
NRC Statement on Risk Assessment and the Reactor Safety Study (WASH-1400) In Light of the Risk Assessment Review Group Report - Jan. 18, 1979.
This Statement found, in part, that it did not regard as reliable the WASH-1400$$/ numerical estimate of overall risk of reactor accident. The Commission, however, supported the extended use of probabilistic risk assessment in regulatory decision making, taking due account of the reservations expressed in the Risk Assessment Review Group (Lewis) Report.
---47/ As a follow-up to the extensive discussion of the PRA contentions at the prehearing conference, at the Board's request, LEA and Keystone filed a written clarification on January 18, 1982 of a number of their PPA contentions.
4p/ WASH-1400, Reactor Safety Study, October 1975.
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2.
Statement of Interim Policy - Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969.
(" Class 9 policy statement")42/
This Statement includes the position of the Comnission that in the analysis and discussion of environmental risks attributchle to accidents, approximately equal attention shall be given to the probability of occurrence of radiation or radioactive material releases and the probability of occurrence of the environmental consequences of those releases. The Commission in this Statement noted that while there are uncertainties in the application of risk assessment methods, it expected the major uncertainties to be identified in probabilistic estimates.
Notwithstanding uncertainties, the Commission found in the Statement that "...the state of the art is sufficiently advanced that a beginning should now be made in the use of these methodologies in the regulatory process, and that such use will represent a constructive and rational forward step in the discharge of its responsibilities."
The Staff is also to consider the likelihood that substantive changes in plant design features may be more easily incorporated in plants when construction has not yet progressed very far.
We also note, from the documents served by the Staff on January 28, 1982, the following guidance from NUREG-0885, Issue I.
"U. S. Nuclear Regulatory Commission Policy and Planning Guidance 1982", p. 10:
... Quantitative risk assessment techniques will be i
49/ 45 Fed. Reg. 40101(1980).
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used to estimate the relative importance of potential nuclear power plant accident sequences" and "Special attention should be given to using probabilistic assessment techniques where the data warrants such use and in areas especially amenable to risk assessment, e.g.,
in licensing reviews as appropriate, dealing with generic safety issues,... evaluating new designs...."
3.
The Staff, in requesting the PRA for Limerick, using the WASH-1400 methodology, believed the Limerick facility might present a disproportionately high segment of the total societal risk from reactor accidents, due to a combination of factors which include high population density and proposed power level. Further, the Staff said that since the purpose of the proposed Limerick study is to evaluate a relative risk for the Limerick facility, it believed thattheuseofWASH-1400inthismannerwouldbeproper.E 4.
The Applicant argues (in its " Answer", Dec. 7, 1981) at pp.
9-12 that the probabilistic risk assessment (PRA) requested by the Staff is not part of the application for operating licenses.
Applicant notes the lack of any requirement for a PRA in 10 CFR Parts 50 and 51 and concludes from the Indian Point discretionary hearing proceedings and accompanying orders that the Commission expressly reserved to itself the determination as to the form for generic consideration of the question of operation of reactors in areas of high population density.
50/ See n.46, supra.
1
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More recently, the Applicant has filed a " suggestion of mootness", dated April 19, 1982, on the basis of an April 5,1982 speech given by Chairman Palladino before the American Nuclear Society on probabilistic risk assessment. The Applicant believes the speech supports its view that there is a separation between the
" regulation process" (a term used in the Chairman's speech) where PRA may be used by the NRC, as distinguished from the " licensing process" (Applicant's term) which would include this proceeding.
Applicant continues to assert that the Limerick PRA may not be considered within what it terms the NRC " licensing process" and therefore not in this hearing.
The Board finds that the formal Commission " Class 9" policy statement cited above makes clear that it is not only permissible, l
but contemplated by the Commission, that PRA techniques will be used in evaluating the probability and consequences of nuclear power plant accidents and radioactive releases as part of the process in l
deciding whether an operating license should be issued.
i In addition, as noted by the Staff in its May 10, 1982 response to Applicant's suggestion of mootness, the Commission has held in an individual licensing proceeding that although the Commission is l
proceeding generically on plans for developing a safety goal:
"...the pendency of the safety goal matter should not l
inhibic the boards from examining closely any accident l
sequence which in their judgment poses an unacceptable risk to health and safety.
Probabilistic or numerical calculations may be used in such an examination and boards have a responsibility to mandate whatever l
mitigative actions they deem necessary to protect l
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adequately the public health and safety when such actions are supported by the record."
Florida Power & Light Co. (St. Lucie, Unit 2), CLI-81-12,13 NRC 838, 843-44 (1980).
It is not clear to the Board at this stage of the Staff's review what specific use it will make of the Limerick PRA.
- Indeed, many of the contentions raise concerns that possible applications by the Staff of the PRA, in comparison with WASH-1400, would not be valid for the reasons stated. We do note that the Staff has explicitly requested a PRA that will parmit an evaluation of the relative risk for the Limerick facility, by comparison of the risk of the Limerick facility at the Limerick site with the risk of the WASH-1400 reference facility (i.e., the Peach Bottom facility, also a boiling water reactor, located at a " composite" site reflecting an average of U.S. power reactor sites).
In addition, the Staff believes that the PRA will prove useful l
l not only as a basis for comparison to the WASH-1400 reference l
i facility, but also to alert the Staff to any particular design problems with Limerick in the course of its review. Tr. 205, 239-40.
While it is too early to tell the specific uses thi Staff will I
make of the PRA, it is certain that, as endorsed by the Commission's policy statement, the PRA could be applied in both the safety and environmental review to determine compliance of Limerick with the regulations initially performed by the Staff and then subject to l
possible litigation in this proceeding.
For example, a part of the
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comparison with the WASH-1400 reference case in the PRA could disclose special risks which must be protected against for Limerick.
Also, solely as part of the direct review of Limerick, without the comparison to other PRA results, the Limerick PRA could disclose risks in the current design which must be addressed, possibly by design changes or other mitigative actions, in order for Limerick to meet the regulations. The Staff indeed plans to factor the results of its PRA review into its safety and environmental review as part of its review of the applications.
The PRA review will form part of the bases for the Staff's determination of whether it believes the findings required in 10 CFR 50.57 have been met, and therefore whether it believes the plant should be licensed. Tr. 168-69.
We agree with the responses of the NRC Staff (May 10,1982),
LEA (April 23,1982) and the Commonwealth of Pennsylvania (May 4, 1982) to the extent that we may place no reliance on the Chairman's speech -- it is an informal speech -- and not a statement of Commission policy. We further agree that the Chairman's remarks are not inconsistent with the Commission policy statement we have in part relied upon in l
l finding that the Limerick PRA should be considered in this proceeding.
i The Applicant cites no supporting reasoning for its attempted distinction between the " regulatory process" phrase used in the Chairman's speech and l
this licensing proceeding. We do not agree there is such a distinction, at least in the context of the speech and the PRA issue in this proceeding.
l
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We see no reason to consider certifying the question to the Commission of whether Limerick PRA may be considered in the proceeding on the basis of the speech relied on by Applicant, or any othte reason. The contemplated emerging use of PRA in proceedings is set forth in the. Commission's above-cited policy I
statement and the St. Lucie decision, supra.
Particular application of the PRA results, and the validity of the analysis leading to these results, is a matter which will have to be determined on the merits in the factual context before us.
The Staff has objected to several of the proposed PRA contentions both before and after clarification by Intervenors, on the grounds that the contention focuses on the adequacy of the WASH-1400 study and would in the Staff's view require " perfection of the WASH-1400 baseline." The Staff explained at the prehearing conference that it agrees with LEA / Keystone that the methodology of WASH.1400 can be litigated in this proceeding in the context of whether a proper basis for comparison was used in reaching conclusions about Limerick. Tr. 234-35. As also explained by the Staff, some of the contentions it objected to suffered, in the Staff's view, the defects of appearing to directly require that the reference base case be redone for a certain aspect l
with no specific tie-in as to why a comparison between WASH-1400 and Limerick would therefore be-inappropriate.
Tr. 234-35.
l t
e.
+n.e
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It appears to this Board that the differences between LEA / Keystone and the Staff may be more semantic than real.
The Staff does not dispute, and the Board finds, that Intervenors are entitled to show why they believe any specific aspects of the comparison which will be made by Applicant and the Staff b'etween Limerick and the reference case are inappropriate.
The Staff itself plans some adjustments in the cases being compared to improve in its view the validity of the comparison or to test the sensitivity of differences.
On the other extreme, it would not be useful, and would be irrelevant to a decision with respect to Limerick, to litigate the adequacy of WASH-1400 as an end in itself with no relation to the effect on the judgment made for Limerick.
The Staff and Intervenors both expressed the view that further negotiations between them would be fruitful in stipulating to the admissibility of PRA issues which would be better organized and would provide a better basis of common understanding of what would be litigated. Tr. 211-14.
In addition, some of the contentions were necessarily pleaded before full information was included in the l
Applicant's PRA, and well before it could be clear what the Staff l
review of PRA would include.
It would be useless to admit such contentions now, and then find that the information later available changes the thrust of or removes the basis for the contention.
i
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In addition, the Applicant was apparently unwilling to negotiate possible language of contentions so that at least the issue could be understood and agreed to by all parties, without prejudice to Applicant's right to object to admissibility, prior to having a ruling on its general opposition to any litigation of the PRA in this proceeding. We have now ruled against Applicant in its general objections to the subject of PRA. At the prehearing conference, the Applicant was desirous of having its technical expert explain where in the PRA certain things were covered in a manner contrary to that alleged in some contentions. There was insuffficient time to allow this at any useful length.
It also would have been impossible for Intervenors and Staff to respond at the moment and for the Board to focus on it at the time.
Prior negotiations could have assisted this.
In fairness to the Applicant and to avoid needless litigation where the parties' disagreements may be narrowed, that process of explanation by Applicant should now take place in negotiations among the Staff, Applicant and LEA /
Keystone.
We rule that the general PRA contention quoted at the outset of this section is admissible, subject to specification. We find that many of the 32 individual contentions supply the specification, and would be admissible.
However, we do not rule on them seriatim as they are set forth now. The parties to the PRA issues are directed I
to negotiate and prepare PRA contentions, with the parties' views on their admissibility.
This will be required within about a month or
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two after the Staff's review of the PRA is issued.
The affected parties shall prepare a schedule for submission as that time nears.
In the absence of a different choice by LEA and Keystone, LEA shall be the lead Intervenor on all PRA contentions and all PRA matters should be coordinated through counsel for LEA.
Discovery may proceed on the PRA in the same manner described below in general for contentions which are' admitted at this time.
A final round of formal discovery, if necessary, will be permitted after the PRA contentions as they are finally negotiated are ruled on.
C.
Other Group I Contentions I-33 (LEA)
This contention, in each Subpart A through L, alleges that the Applicant has failed to address adequately certain of the TMI action plan requirements contained in NUREG-0737. The Applicant agrees that most, if not all, such information still has to be provided in future amendments to the application.
LEA believes that with respect to at least one item, instrumentation to indicate inadequate core cooling (Subpart H of the contention), there is enough information now to allege Applicant's plans will be inadequate. The Staff does not object to the contention. With one exception, noted next, the contention is conditionally admitted, with required specification (or explanation why no further specification is possible).
The one exception is Subpart J dealing with emergency support facilities.
It should be advanced, if LEA wishes later to I
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pursue it, with specificity and bases after emergency plans are available, as part of the emergency planning contentions. We note that some of the Subparts of I-33 should be broken down into separate subjects when they are specified, e.g., Subpart B relating to many TMI action plan requirements.
I-34 through I-38 Accident Monitoring (LEA)
These contentions deal with the Applicant's capability to monitor conditions during and following an accident.
Intervenor LEA argues inter alia that Applicant has neither demonstrated compliance with the latest revision of Regulatory Guide 1.97, " Instrumentation for Light-Water Cooled Nuclear Power Plants to Assess Plant and Environs Conditions During.and Following an Accident," nor provided l
justification for noncompliance. Applicant contends that LEA must specify some inherent problem with the design construction or implementatiory of procedures for the plant, even though the application is not fully developed in the subject area of these contentions.
The NRC Staff takes the general position that it is appropriate at this stage of the proceedings to plead the inadequacy i
of portions of the application. The Staff finds I-34 admissible but recommends denial of I-38.
Contention I-38 asserts that sampling capability should be based on an envelope accident sequence beyond design basis accidents. Staff contends I-38 is an impermissible attack on the Commission's General Design Criteria (GDC) in that it
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requires analysis of post-accident sampling capability for accidents beyond those required to be considered.
GDC 64 requires monitoring "for radioactivity that may be released from normal operations, including anticipated operational occurrences, and from postulated accidents."
Staff interprets
" postulated accidents" to be limited to DBA LOCA's.
LEA contends the regulations should nct be read that way, and given the Commission's position on beyond-design-basis accidents since TMI (related to NEPA analysis and emergency planning, for instance) it makes little sense to interpret " postulated accidents" as DBA LOCA's only. The Board agrees with LEA.
The Board conditionally accepts these contentions subject to later refinement and specification when the additional information has been furnished or the relevant documents filed.
I-39(LEA)
LEA alleges that Applicant's pipe storage practices result in corrosion and the introduction of foreign substances into the pipes resulting in unsatisfactory pipe performance during plant operation and thereby putting the health and safety of the public in serious jeopardy. The matter is pending between Applicant and Staff.
Applicant argues that the existence of an unresolved item between Applicant and Staff does not automatically support a contention, further stating that there is no claim that Staff is not handling the issue properly and no allegation that the matter cannot be
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resolved prior to licensing.
The Staff recommends admission.
The Board admits this contention.
I-40 (LEA)
This proposed contention asserts that the Limerick FSAR should contain a comprehensive, nonevasive documentation of deviations, including justifications for nonconformance (i.e., from Regulatory Guides, Branch Technical Positions and Standard Review Plans).
It further asserts that whether or not Limerick conforms to a Regulatory Guide is often not directly stated. Rather the issue of conformance is evaded by the use of such terms as " evaluated to be in conformance with the intent..." and "in conformance subject to clarification." When nonconformance is admitted, justification for nonconformance is often omitted. The. contention does not provide specific examples.
With' respect to comprehensive documentation, the Staff observed that the Commission regulations did not require applicants to document deviations from the Regulatory Guides, Branch Technical Positions and the Standard Review Plan.
The Staff believed that this part of the contention, therefore represented an attack on the adequacy of the Commission's regulations.
The Board notes that the Commission recently published a final rule entitled " Rule to Require Applicants to Evaluate Differences from the Standard Review Plan" which became effective May 17, 1982.
47 Fed. Reg. 11651 (1982).
This rule, however, applies only to operating licenses docketed after that date. The rule therefore
9
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would not apply to the applications for operating licenses for the Limerick plants because they were docketed before that time.
Moreover, the rule does not require documentation of deviations from Regulatory Guides or Branch Technical Positions except as they are incorporated in the Standard Review Plan. The Staff argues that the fact that the Commission has felt it necessary to issue a proposed rule is an indication that the Commission's interpretation is that regulations applicable to applications filed prior to May 17, 1982 do not require.and cannot be inferred to require a documentation such as LEA seeks to require by this contention.
With respect to the part of the contention that asserts that nonconformance is admitted (in the FSAR), the Board finds that LEA has made no specific assertions of why such deviation is unacceptable.
The Board conditionally admits this proposed contention at this stage of the proceeding, subject to LEA's further development of specific contentions concerning deviations from Regulatory Guides or other regulatory practice and their bases within 30 days from the service of this order. Staff and Applicant may respond within the time permitted for answers to petitions to intervene.
I-41 (LEA)
(his proposed contention has two parts. First, it asserts that a systems interaction analysis must be done for Limerick, citing Unresolved Safety Issue A-17, Systems Interactions in Nuclear Power
8
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Plants, and the TMI Action Plan (NUREG-0660, Item II.C.3), Systems Interaction.
Second, it asserts that a plant-specific review of the effects of control system failures must be done at Limerick, citing Unresolved Safety Issue A-47, Safety Implications of ContPol Systems. The Staff would admit this contention; the Applicant states that these are issues which will be addressed during the course of r(ciew.
The Board conditionally admits this contention at t,his stagb of the proceeding, subject to the development of specific contentions and their bases after the Applicant provides its further information addressing these two issues.
l I-42 (LEA) l l
This proposed contention asserts that environmental qualification of safety-related electrical equipment is critical to the safe operation of Limerick and that such lengthy postponement of resolution of this matter will inevitably mean application of a lesser safety standard to Limerick than is required or should be permitted.
Reference is made to Unresolved Safety Issue A-24, Environmental Qualification of Safety-related Electrical Equipment (NUREG-0588).
The Applicant intends to submit an equipment qualification report to the NRC at least four months in advance of the expected data of issuance of a full power license, as specified in a
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November 25, 1980 memorandum from the Staff to all Applicants for operating licenses and holders of construction permits.
The Board finds this proposed contention necessarily speculative at this stage of the proceeding; We admit it subject to the development of specific contentions and their, bases on i
particular aspects of the planned environmental qualification of equipment after sufficient information regarding such plans is finished as part of the Application.
I-43 (LEA)
This proposed contention asserts that this Applicant has not adequately addressed Staff resolutions of Unresolved Safety Issues A-8, Mark II Containment Pool Dynamic Loads, and A-39, Determination of Safety Relief Value Pool Dynamic Loads and Temperature Limits for BWR Containment.
The Applicant states that these matters will be addressed during this course of the review. The Staff would admit the proposed contention.
The Board, while finding the proposed contention necessarily speculative, at this stage of the proceeding, admits it subject to the development of specific contentions and their bases after the Applicant addresses these matters.
1-44 (LEA)
This proposed contention asserts that Unresolved Safety Issue A-43, Containment Emergency Sump Performance, has not been
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addressed in the FSAR, because, according to the Applicant, A-43 does not apply to Limerick. The Problem Description of A-43 states, in part, "the concerns relative to debris, blockage, and hydraulic performance also apply to boiling water reactors during recirculation from the suppression pools, and will also be addressed".
The Applicant has stated that this matter will be addressed during the course of the review. The Staff would admit the proposed contention.
The Board, finding the proposed contention nonspecific in terms of whether the Applicant does not, or will not, meet the Staff l
requirements resulting from resolution of A-43, conditionally admits it at this stage of the proceeding, subject to the development of specific contentions and their bases after the Applicant addresses this matter.
l I-45 (LEA)
This proposed contention asserts that the Applicant should be required to maintain his commitment to Alternate 3A requirements described in Volume 4 of NUREG-0460 (for comment) (March 1980),
Anticipated Transients Without Scram (ATWS) for Light Water Reactors, even if the final version in a promulgated ATWS rule of the 3A requirements is less strict, and to comply with any more stringent' requirements that may appear in the final version of NUREG-0460, Volune 4.
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The Applicant states that he is proceeding with his commitment to Alternative 3A of Volume 4 of NUREG-0460 (Tr. 523). The Staff would admit this proposed contention.
The Board notes that the Commission is proposing an additidnal 50.60 to 10 CFR Part 50, Acceptance Criteria for protection against anticipated transient without scram events for light water cooled nuclear power plants. 46 Fed. Reg. 57521 (1981).
Three alternatives for this 50.60 were proposed for comment. The comment period was to expire April 23, 1982.
Clearly, the ultimate requirements for the Limerick Station to meet ATWS considerations are not known at this time.
The Board, finding the proposed contention nonspecific and speculative as to whether the Applicant will meet the Comission requirements for ATWS, conditionally admits it at this stage of the proceeding, subject-to the development of specific contentions and their bases and subject to possible limitation depending upon the outcome of the ATWS rulemaking proceeding i
I-46 (LEA)
This proposed contention asserts that the Applicant has not snown that it has resolved the concerns of Unresolved Safety Issue A-10, BWR Nozzle Cracking. The Staff resolution of this USI, NUREG-0619, requires consideration of this problem on a case-by-case basis.
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The Applicant states that this matter will be addressed during the course of the review.
The Board, finding the proposed contention necessarily nonspecific and speculative at this stage of the proceeding, as to whether the Applicant will meet the requirecents for BWR Nozzle Cracking, conditionally admits it subject to the development of specific contentions and their bases after the Applicant addresses this matter.
I-47 and I-48 (Lochstet)
These contentions are not admitted as discussed above as part of our ruling on Dr. Lochstet's lack of standing and failure to show he should be permitted to intervene in our discretion.
1-49(Lewis)
This proposed contention asserts that an electromagnetic pulse (EMP), generated by an accidental explosion of one of our own nuclear devices at high altitude, would destroy or disrupt controls within Limerick that are important to safety, thereby threatening tne health and safety of the public.
As basis for this proposed contention, Mr. Lewis cites recent literature that supports the conclusion that an EMP could have wide-ranging disruptive effects on electrical, and particularly electronic, systems.
A similar contention was raised in Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 & 2),
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In that Board's Memorandum and Order, the Board found that "[intervenor's] example, involving a missile silo accident, flows from the deployment of weapons by the United States.
Hence, that risk is explicitly barred from consideration by 50.13."
Id_. at 845.
In addition, the Board found that the Perry intervenor failed to provide a basis for believing that there is any plausible mechanism by which there could be an accidental explosion of a nondefense related nuclear device at sufficient altitude to create a problem of the sort described in the Science news article. _Id.
Notwithstanding Mr. Lewis' postulation of an accidental explosion at high altitude, this Board finds, similar to the Perry Board finding, that any such explosion of "one of our own nuclear devices" would involve the deployment of weapons by the United States.
Hence, that risk is explicitly barred by 10 CFR 50.13, Attacks and distructive acts by enemies of the United States; and defense activities.-Q1/
This proposed contention is rejected.
l 51/
50.13 states, in part; "An applicant for a license to... operate a production or utilization facility...is not required to provide for design features or other measures for the specific purpose of protection against the effects of...(b) use or deployment of weapons incident to U.S. defense activities."
1
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Should any of the parties seek further information on the effect of an EMP on a nuclcar plant, we refer the parties to a Comission Information Paper, Status Report on the Evaluation of the l
Effects of Electromagnetic Pulse (EMP) on nuclear power plants.
l Secy-82-157, April 13, 1982. This paper, obviously, ms not available at the time of the prehearing conference.
I-50 (Lewis)
In Contention I-50, Mr. Lewis asserts that the spent fuel l
shipping casks are unsafe.
He alleges that the casks are inadequately inspected and insured, and are not properly designed to withstand fire.
Both the Staff and the Applicant believe this contention is inadmissible because it is vague and is an impermissible challenge to the Comission's regulations.
10 CFR Part 71, Subpart C and Appendices A-B cover the design criteria for spent fuel shipping casks. Therefore, to the extent this contention asserts that the casks must be designed to specific site demography, it is an impermissible challenge to the regulations. See 10 CFR 2.758(a)(1981). Although Mr. Lewis makes the argument that there are unique conditions around Limerick which
~
would render the regulations inapplicable,10 CFR 2.758(b)(1981),
he has not provided specific information on the conditions around Limerick. Thus, there is no basis for waiving the regulations.
Mr. Lewis maintains that shipment of spent fuel from Limerick is not covered by Table S-4 (Tr. 537).
He is incorrect.
Table S-4 i
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is brought into the Environmental Report by 10 CFR 51.20(g)(i).
Since transportation of spent fuel from the Limerick reactors falls within the scope of that paragraph, Table S-4 applies. There is no l
provision for site specific consideration of fuel shipments falling l
within the scope of 51.20(g).
For the above, reasons, this contention is not admitted.
I-51 (Lewis)
This proposed contention asserts that Limerick does not meet the General Design Requirements of 10 CFR Part 50, Appendix A (General Design Criteria for Nuclear Power Plants), "because the Mark II containment design...would be breached if about 10% of the i
fuel cladding reacted to produce hydrogen."
The Applicant states that this contention has no applicability to Limerick since it ignores the fact that Limerick will be inerted.
l The Commission published as a Final Rule, effective January 4, 1982, Interim Requirements Related to Hydrogen Control, 46 Fed. Reg. 58484 (1981), which amended 10 CFR 50.44 on standards for i
combustible gas control systems in light-water cooled power reactors.
In issuing this amendment, the Commission stated that it will be considering further modification of 50.44 during the long-term rulemaking effort relative to consideration of degraded or melted cores in safety regulation.
Part of this long-term rule-making will involve a thorough reevaluation of hydrogen
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generation and control.
The status of this long term effort is not known, but in any event does not affect our ruling on this proposed contention at this time.
As applied to Limerick, 50.44(c)(3)(i) requires that effective six months after initial criticality, in inerted atmosphere shall be provided for each boiling light-water nuclear power reactor with a Mark I or Mark II type containment. Also, 50244(c)(3)(iii) requires (for Limerick) that by the end of the first scheduled outage beginning after July 1,1982 and of sufficient duration to permit required modification, each light water nuclear power reactor shall be provided with high point vents for the reactor coolant system, for the reactor vessel head, and for other systems required to maintain adequate core cooling if the accumulation of non-condensible gasses would cause loss of function of these systems.
The Staff would have admitted this proposed contention, but that position was taken prior to issuance of the amendment to 50.44 discussed above.
We find the basis for this contention removed by the recent requirements of 'the rule, noted above.
Therefore, the contention is not admitted.
I-52(Lewis)
This proposed contention asserts that the design of Limerick threatens the health and safety of the public because.of the seismic
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separation gaps that have been found at Limerick.
In his response to PECO and NRC Answers, Mr. Lewis states that he believes that this is one more example of poor quality assurance and that the contention should be considered a part of Contention VI-1.
Discussion of this contention at the prehearing conference revealed that what is referred to as seismic separation gaps are spatial gaps between structures to decouple one from another when ground motion takes place.
To better understand the basis for this proposed contention, the Board provided Mr. Lewis the opportunity to file by January 15, 1982 a portion of the correspondence he relies on for the basis for this proposed contention.
(Tr. 547-48.)
Mr. Lewis has failed to make such a filing.
Both the Applicant and the Staff believe this proposed contention to be inadmissible.
The Board finds this proposed contention without basis and specificity and rejects it.
I-53 (F0E)
This proposed contention states in its entirety:
"The generic issue of fuel cladding has not been resolved at Limerick.
An accident is waiting to happen."
At the prehearing conference the representative for F0E, Mr. Anthony, stated that he was asserting that zircaloy is an unacceptable cladding for nuclear fuel in commercial nuclear power
s
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plants.
Given an opportunity to state what additional basis he might have (in addition to a single article in The Ecologist),
Mr. Anthony said that he did not have any further technical references and that he did not have any technical background to enter into a dialog on this subject (Tr. 552).
While the Staff would admit this proposed contention, the Board finds it to_ lack specificity and basis and rejects it.
I-54 (F0E)
This proposed contention asserts that the FSAR is incomplete This without a summary of operating experience with GE reactors.
would include the malfunctioning of equipment and all causes of reactor tripping and the f ailure or breakdown of any equipment under operating conditions.
The Board recognizes the value of knowledge of operating experience to the Staff, the Applicant and his contractors, this Board and to the public. The Board noted (Tr. 561, 562) that several systems are in place for collecting and disseminating this kind of information. These include, but are not limited to, the NRC Licensee Event Reports, the Nuclear Plant Reliability Data System, reports and notices of the NRC Office of Inspection and Enforcement and Reports of the NRC Office of Analysis and Evaluation of Operational Data, which is independent of other NRC offices.
We are particularly interested in reviewing, at the appropriate time, the means by which the Applicant will avail himself of, and
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use, this information, on a current basis, when and if the LGS goes into operation.
Use of such information in this design and construction of the LGS should already have taken place.
We find no basis, however, for a requirement that the voluminous record of all plant operating experience of GE reactors be included in the Limerick FSAR.
The Staff agreed (Tr. 554) with the Applicant that this proposed contention is vague and nonspecific in that it contains no authority that such information is required pursuant to regulations and, furthermore, no showing of any particular value to the Board in this proceeding.
Nevertheless, the Staff would admit this contention.
The Board finds this proposed contention tg be vague, nonspecific and with no basis.
It is rejected.
l l
I-55 (LEA)
This proposed contention asserts that design changes are necessary to reduce the unreliability of the BWR scram system at Limerick and the associated risk to the health and safety of the l
public.
Applicant asserts that this is a matter of the NRC presently 1
developing its new requirements and that there is no indication that Limerick cannot meet these requirements. The Staff finds this proposed contention admissible.
---e..,
y
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On April 30, 1981 the NRC requested plant-specific information regarding integrity of BWR scram system piping -- specifically, an evaluation of the applicability to Limerick of GE's generic evaluation of the problem illustrated by the Brown's Ferry incident, an evaluation of Limerick's conformance with certain general design criteria and regulations, and a demonstration that a break in Limerick's scram discharge volume system meets 10 CFR 50.46.
This proposed contention is conditionally admitted at this stage of the proceeding, subject to the development of specific contentions and tlair bases, following Applicant's response to the April 30, 1981 request by NRC. See also proposed contention I-56.
I-56 (Lewis)
This proposed contention asserts that the design of the Limerick nuclear power plants is not adequate to protect the health dnd safety of the public. As basis, Mr. Lewis quotes from NUREG-0785, Safety Concerns Associated with Pipe Breaks in the BWE Scram Discharge System.
As noted above, in I-55, additional information is to be provided by the Applicant to the Staff with respect to the Limerick design and performance of the scram discharge volume system.
The Board directs that proposed contention I-56 be combined with proposed contention I-55, to the extent that specific contentions and their bases are developed upon the availability of the additional information.
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I-57-(Lewis)
This proposed contention asserts that there is an insuffici*nt inventory of water on-site or in the borated water storage systen to provide adequate assurance of cooling in the case of a scram discharge volume pipe break.
The Staff pointed out at the prehearing conference that Mr.
Lewis apparently is confused between sources of water used for r
condenser cooling and the sources used for emergency core cooling, and additionally he is mistaken in his belief that the water from the spray pon'd would have t'o be borated before use for core cooling.
Makeup water that is used to maintain the inventory in the reactor vessel is not borated. Normal reactor coolant, suppression pool water and condensate storage water, which suppy makeup to the reactor vessel inventory, are all non-borated. Normal condenser cooling water is non-borated and is drawn from this spray pond, which has a water volume adequate for thirty days of cooling under design basis conditions.
Only the standby liquid control system contains borated water.
This system is a backup reactivity control system chat is used to shut down and to maintain the reactor shutdown when sufficient control rods fail to insert.
The Board finds this centention to be without basis and rejects it.
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I-58 and I Site Related Compensating Engineering SafeguardsES/ (CEPA, Keystone, LEA)
In contention I-58 Keystone and CEPA assert that the population density in the vicinity of Limerick exceeds the standards currently recommended by the NRC for siting of nuclear plants. Therefore Limerick should not be granted an operating license.
The Applicant observes, in its Answer (December 7, 1981) that there is no specification as to what these alleged standards are or how they apply to Limerick at the operating license stage, and further, that Section 108(b) of the NRC Appropriations Act of 1980, Public Law 96-295, 94 Stat. 783 (June 30, 1980), requires that only construction permit applications filed after October 1,1979 meet demographic criteria to be established by the NRC, which clearly does not apply to Limerick.
The Staff would admit I-58, although the Staff states that the siting standards (criteria) that would apply to the Limerick plant at the operating license stage would be 10 CFR Part 100.
In contention I-60, LEA is concerned about the health effects l
l of radioactive releases as a result of both normal reactor operation, including anticipated operational occurrences, as well as accidents.
In this contention, LEA alleges that the Applicant has not provided adequate means to control gas and liquid radioactive effluent as required by 10 CFR Part 50, Appendix A, General Design 52/ The terms " engineering safeguards" or " engineered safeguards" are taken to mean what are now refered to as " engineered safety features."
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Criterion 60 and 10 CFR 100.10.
LEA cites the large population density and the power level of the reactor as bases for an unfavorable site description and contends that additional engineering safeguards such as filtered vented containment, molten core retention devices, groundwater water interdiction measures and other compensating engineering safeguards should be required.
Applicant argues that the facility, as proposed, meets all current requirements and since no specific deficiency in the design of the present system is alleged contention I-60 should not be admitted.
Applicant further states that the engineering safeguards required by 10 CFR 5 100.10 are described throughout the application.
In response to a criticism that the contention lacked specificity, LEA responded that the contention could be made more specific after the results of the PRA are looked at.
As regards contention I-58, as stated, the contention must be denied. As pointed out by Applicant, the criteria referred to by intervenors do not apply to Limerick. The contention does however raise the issue of the population density surrounding the Limerick Station and that issue, based upon the results of the PRA, could lead to possible requirements for site-related compensating engineering safety features.
The Board admits both of these contentions conditionally with the requirement that further specification of deficiencies in light of the proposed design and population density be made based on.the results of the PRA.
Depending on the final specification of these
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contentions, the Board notes the possibility of future conflict with Commission rulemaking related to requirements for additional compensating engineered safety features such as filtered, vented containment.
I-59 (LEA) l This proposed contention alleges that the NRC currently has no technical justification for setting the " design basis accident."
It asserts that probabilities of accidents are not known and thus there is no rational basis for deciding what the design basis should be, and that until the NRC can justify its choice of the design basis, there is no rational method for finding that a nuclear power plant does not represent an undue risk to the health and safety of the public. Therefore, the contention maintains, the Limerick operating license should be denied. LEA's basis is solely a reference to "NRC Staff testimony in TMI-1 Restart proceedings."
The Staff believes that this proposed contention is inadmis-sible because it is not focused on the selection of design basis accidents for Limerick. Rather, in the Staff's view it raises what LEA believes to be a generic inadequacy with the NRC Staff's basis for selection of design basis accidents, and to be admissible, the contention must establish a nexus between this generic issue and the licensing of the Limerick units.
LEA would be required to specify why the establishment of design basis accidents for this facility is lackir,g in justification.
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In fact, there is no definitive set of design basis accidents used by the NRC for a " choice of the design basis."
In Regulatory Guide 1.70, Standard Format and Content of Safety Analysis Report for Nuclear Powc Plants, Chapter 15, Accident Analysis, the Staff provides guidance to an applicant for his evaluation of the safety of a nuclear power plant, which should include analyses of the response of the plant to postulated disturbances in process variables and to postulated malfunctions or failures of equipment.
Such safety analyses provide a significant contribution to the selection of limiting conditions for operation, limiting safety system settings, and design specifications for components and systems from the standpoint of public health and safety..These analyses are a focal point of the Commission's construction permit and operating license reviews of plants. The analyses should include an assessment of the consequences of an assum,ed fission product release tnat would result in potential hazards not exceeded by those from_ any accident considered credible.
The Guide proceeds-to give additional guidance on transient and accident classification and evaluation and provides a Table of Representation Initiating Events to be Analyzed. This practice has been utilized for approximately ten years.
Considerable testimony by the Staff was provided in the TMI-l Restart Hearings concerning the Staff's methods for deciding which events are design basis. The TMI-l Restart Board concluded that "though they [the methods] do depart from the ideal, they are by
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no means irrational." Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), LBP-81-59,14 NRC 1211,1383 (1981).
We, of course, do not have such a record before us, as applied to Limerick.
The Applicant argues that this matter was raised at the construction permit stage,13/ The Board in that proceeding decided against the intervenor (also LEA). Applicant argues that this matter is barred by the principle of res judicata and should be dismissed.
The Board finds that the instant contention is not precisely the sane as the two part contention raised at the construction permit stage. Futher, there have been significant new developments bearing on the proper approach to systems safety evaluation since the CP decision, including new emphasis on PRA and system interaction analysis techniques and failure modes effects analyses.
Therefore, the contention is not barred by collateral estoppal.
53/ The contentions raised at that time were:
A.
The Applicant has failed to establish that the design basis accidents presented in the PSAR are the " worst" accidents.
B.
The assumptions concerning the reliability of the engineered safeguards and the quantities of radioactive products released in the design basis accidents were not sufficiently analyzed and justified in the PSAR and are insufficiently set forth to meet the applicant's burden of proof to establish the safety of the plant.
i w.--
.w..
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This contention is not a very clear indication of what LEA wants to litigate. However, we can discern that LEA is asserting that the methodology used by the Staff (and presumably the Applicant) in deciding which spectrum of accidents to design against is not rationally based nor technically justified and is therefore inadequate to provide reasonable assurance that the design criteria of the regulations have been met.
So construed, the contention is conditionally admissible.
It can and should be better specified after the Applicant's and Staff's method of review of the accident design of the Limerick plant is disclosed by the further progress of those reviews, including possible application of the review of the PRA. When specified, the contention should make clear the defects alleged in the methodology, the regulations which therefore may not be met, and the changes or improvements which LEA alleges should be made in the accident design analyses.
I-61 (LEA) l l
In this contention, LEA asserts that the Applicant's Fire Protection plan does not meet General Design Criteria 3 on Fire Protection.
LEA and the Applicant agree that the Applicant is reviewing the new requirements for fire protection. Applicant plans to sunplement its application with the results of its new fire protection evaluation.
Since this contention essentially alleges a lack of information, we admit it conditionally, subject to its being made more specific after the Applicant's new evaluation is filed.
~
~
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I-62 (Lewis)
This proposed contention asserts that the Limerick nuclear power plant can suffer a major breach of containment due to a pressurized thermal shock.
The Applicant argues in his Answer that NRC Bulletin 81-06, a letter from Darrell Eisenhut to licensees dated May 8,1981, excludes BWR's from that (pressurized thermal shock) consideration.
The mere absence of any reference to BWR's in the title or body of this Bulletin does not, in the view of the Board, necessarily imply that pressurized thermal shock might not be a prob' A for the Limterick BWR reactors. The staff does not object to this contention.
The Board admits this contention.
I-63 (LEA)
LEA contends that the source of cooling water for Limerick has not yet been established.
As basis for the contention LEA raises the issues of attitude in Plumstead township, and the question as to whether the Point Pleasant diversion will in fact take place.
Applicant argues that the cooling water sources are defined and identified and there are no insurmountable obstacles of any kind that would affect obtaining cooling water for Limerick, further arguing that the Connission recognizes that "it should not sit back and wait until every other agency which might have something to do with the problem completes its work before.it goes forward." Tr.
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528. Although the Staff originally did not oppose this contention, it changed its position and now opposes its admission, basing _its position change on LEA's explanation in the context of a safety contention.
Considered as a safety issue, the Staff sees no basis for this contention. The Board, while agreeing that there 'is some uncertainty related to design details of the cooling water transmission system as an environmental issue, finds that it is entirely too speculative to assume that Applicant's planned sources for cooling water sufficient for safety will not materialize. When and if those sources are denied, the plant would not be allowed to operate.
If changes in sources are required, the issue could then be ripe for consideration depending on the circumstances. The contention is denied.
D.
Group II Contentions II-l (CEPA, Keystone)
Intervenors assert in this contention that Limerick's generating power is not needed and that there are superior alternatives to Limerick for generating power which is needed.
Since the Special Preheari'ng Conference was held, the Commission has published a final rule on the issue of need for power which specifically states, " Presiding officers shall not admit contentions proffered by any party concerning need for power or alternative energy sources for the proposed plant in operating license
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4 hearings." 47 Fed. Reg. 12940 (1982) (to be codified at 10 CFR 51.53(c)).
A contention concerning need for power can only be admitted if a petition for the new rule to be waived in the current proceeding is made and accepted pursuant to 10 CFR 2.758(a)-(d) (1981). This would require a showing that special circumstances exist in this proceeding such that application of the regulation would not serve the purpose for which the regulation was adopted. We do not believe that such a showing has been made at present. We note, however, that at the Prehearing Conference considerable attention was focused on the proceeding before the Pennsylvania Public Utilities Commission. Tr. 132-146.
If the parties believe after the completion of that proceeding that they can make the required prima facie showing under section 2.758(b), they may, of course, file the appropriate petition.
For the present, however, this contention is denied.
E. Group III Contentions III-1 (CEPA, Keystone)
Contention III-1 asserts that the Applicant has not shown that it meets the financial qualifications requirements of 10 CFR 50.33(f). Since the Special Prehearing Conference, the Commission has adopted a rule which amends 50.33(f) to eliminate financial review from operating license proceedings. See Elimination of Review of Financial Qualifications of Electric Utilities in
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Licensing Hearings for Nuclear Power Plants, 47 Fed. Reg.13750 (1982). The rule may be waived only upon a showing of special circumstances pursuant to 10 CFR 2.758 (1981).
At present, no such showing has been made.
This contention is, therefore, not admitted.
III-2 (Shniper)
This contention appears to assert that the Applicant does not
)
have a satisfactory means of financing decommissioning of the reactors.
In eliminating financial qualifications as an issue in operating licensing proceedings, the Commission also eliminated the issue of decommissioning costs.
47 Fed. Reg. 13750 (1982).
Therefore, this contention is not admissible in this proceeding.
The Staff suggests that the contention also includes the issue of environmental impacts of decommissioning.
The Board is unable to-ascertain whether Mr. Shniper in fact desires to litigate this issue.
The contention is vague.
The contention itself is not differentiated from its basis. The Board is entit;?d to expect clearer drafting, particularly in view of our guidance in our Order of October 14, 1981 at page 3, on the clear and concise drafting of contentions, with an additional setting forth of supporting bases with reasonable specificity. As the contention is presented, it is entirely too vague to put the Board and the parties on notice as to what would be litigated.
For these reasons, the contention is denied.
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F. Group IV Contentions IV-1 (Lewis)
In this contention, Mr. Lewis maintains that the training of spent fuel truck drivers is not adequate to protect public health and safety. As a basis for this, he points to NUREG-0645 which, he alleges, instructs truck drivers to ignore police directions and run barricades.
He admits this action would be called for only in situations where the drivers have reason to believe that the directions were not given by actual police, i.e. that the directions were a ruse.
He could not cite any instance where this had occurred.
(Tr.582-83).
The Applicant argues that Mr. Lewis does not show any inability on the part of the Applicant to conform to the requirements of NRC regulations. Applicant also maintains that plans for training spent fuel pool shipment escorts may not be the subject of a hearing, such as this one, under 10 CFR Part 50. The Staff believes that the training of spent fuel pool drivers would be relevant only insofar as it affected quantification of environmental impacts of a possible accident for NEPA purposes.
However, the Staff asserts that as so interpreted, the contention is a challenge to 10 CFR 51.20(g) and Table S-4 of the NRC regulations and is therefore inadmissible.
We agree that Table S-4 quantifies the environmental impacts of transporting spent fuel from the site.
Questioning these environmental impacts is an impermissible attack on NRC regulations.
See 10 CFR 2.758 (1981). Therefore, this contention is denied.
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IV-2 (Lewis)
The contention as submitted asserts that the Applicant cannot assure enough qualified operators to run the Limerick plant safely, because past NRC operator qualification testing practices were deficient in that operators were able to and did cheat on the tests given to TMI-l operators. At the prehearing conference, Mr. Lewis added that there is a limited pool of qualified operators and there may not be enough qualified ones available to staff Limerick.
Tr.
586-87, The Board agrees that these are important, potentially serious issues. The problem is that at this stage it is pure speculation to believe that inadequacies in NRC Staff administration of the TMI-l examinations (e.g., lack of proctoring), will be repeated at the examinations which Limerick operators will take.
See, Metropolitan Edison Co. (TMI, Unit 1), LBP-82-348, 15 NRC
( April 28,1982) (Report of Special Master).
In addition, a minimum staffing requirement will assure that the plant will not operate unless the requisite number of operators are available.
- However, Mr. Lewis is now in the difficult position of not knowing what the minimum staffing will be years from now, and therefore whether he would have a basis to contend that Limerick staffing is inadequate.
Further, if the procedural administration of the test is totally removed from consideration by rejection of the contention now because it is premature, any basis in fact for a concern of cheating on examinations which will be given a few years from now will not be available for Mr. I.ewis to pursue on the record of the proceeding.
i
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Accordingly, although the contention must be rejected now as premature, speculative, and without basis, we reject it without prejudice to Mr. Lewis raising the following two contentions, subject to the Section 2.714 requirements of basis and specificity, at the future appropriate times:
(1) after the minimum operator staffing requirements are established for Limerick (presumably not later than the last SER supplement), a content"on that they are inadequate; and (2) after the NRC Limerick operator and senior operator examinations have been given, a contention that their administration was procedurally inadequate, thereby raising a question about possible cheating on them.
Not later than sixty days prior to these examinations, the NRC Staff shall file with the Board and the parties its procedural plans for administration of the examinations. After the examination, the NRC Staff shall file with the Board and the parties a report on whether the planned procedures were followed, any material variations of them, any material observations regarding the procedural conduct of the examination, a summary of the results and a discussion and conclusion as to whether enough qualified operators are available to operate the Limerick plant safely.
G.
Group V Contentions Other Than Those Concerning the Supplementary Cooling Water System V-1 (F0E)
This proposed contention asserts generally that the requirements of NEPA and the National Historic Preservation Act have not been met with regard to evaluating tapacts on historical sites.
Because both NEPA and
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the Historic Preservation Act applied at the construction permit stage and were complied w.th then, we require that new information since that time be shown before we will consider them currently. The statement of basis for this contention includes a vague reference to "new information" on low level radiation. This does not inform the Board or the parties what information is being referred to and, hence, is insufficient as a basis for a contention.
In addition, it is alleged th'at certain impacts were not considered at the construction permit stage.
Such an allegation must be made with even greater specificity because of the fact that there was an opportunity to litigate the need to consider these impacts in the earlier proceeding.
In addition, efforts to mitigate the effect of such impacts may be impossible once the plant is built although they would have been possible before the plant design was finalized.
Thus, an allegation that the plant's effect on aquatic life and stream flow was ignored is too broad to be admissible as a contention in this operating license l
proceeding.
The allegation that the effect the sight of the cooling tower plume might have on visitors to particular parks was not considered is more specific.
In general, we consider that this impact was encompassed in the f
evaluation of the visual impact of the plant which was performed at the l
construction permit stage. We recognize that some of the impacts allegedly resulting from viewing the plume, however, are psychological.
l These would not have been considered when the construction permit was l
l issueo and if a basis had been provided, we might consider them now.
r
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However, no basis is given for the proposition that viewing the plume will cause people to become alarmed about possible radiation exposure.
As to the allegation that proper consultation was not done under the Historical Preservation Act, we find it vague.
It is not clear what was allegedly done incorrectly by the Staff and Applicant.
It is not even clear why the Advisory Council on Historic Preservation was "in error" in verifying that no National Register properties would be affected.
The Applicant objects to this contention. The Staff objects to all of it except as it relates to the visual impact of the plume and, perhaps, to the issue of psychological stress. The Board does not admit it.
V-3 (F0E)
In this contention, F0E alleges that the danger of fire and explosions in connection with gas and oil pipelines and industry near the plant has not been sufficiently analyzed. F0E considers this as both a safety and an environmental concern (Tr. 596). To the extent it addresses environmental concerns, this contention is not admissible because it does not even attempt to provide a reasonable accident sequence which might cause environmental L
- 146 -
harm 5S[ NEPA requires consideration of only reasonably foreseeable impacts.
Environmental Defense Fund, Inc. v. Hoffman, 566 F.2d 1060,1067 (8th Cir.1977); Scientists Institute for Public Infermation v. AEC, (al F.2d 1079, 1092 (D.C.
Cir. 1973).
F0E's representative indicated at the prehearing conference that he had seen nothing about his concerns in the FSAR.
However,
section 2.2 of the FSAR does, indeed, discuss possible fires or explosions.
It covers industries, railroads and pipelines.
It does not appear that the possibility of fires at the Firestone and Structural Foam industries or the possibility of an explosion at Structural Foam are explicitly considered, out it is not clear that F0E alleges that such events pose a hazard other than in connection with an oil or gas pipeline fire or explo ion. Therefore, this contention is denied at present as being without basis.
Our finding that the contention lacks basis indicates only that the FSAR does include this matter, contrary to the representations i
of F0E.
It does not reflect a judgment on the adequacy of the discussion in the FSAR.
If it so desires, F0E may, within 30 days of the service of this order, file conten'. ions which allege specific deficiencies which F0E believes exist '.n the FSAR analysis of these 54/ Seemingly, F0E is alleging an accident sequence which involves high flood waters causing damage to the roadbed of a nearby
~~~
rail line. This, in turn would cause a derailment which would cause a fire and, when the fire reaches-oil and gas pipelines or a particular industry, an explosion would result which would
[
lead to a release of radioactivity from the plant.
j l
L
~~
i
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matters.
Should F0E elect to make such a filing, the Staff and the Applicant shall reply to it.
V-4 (AWPP)
Intervenor asserts that Applicant has improperly averaged temperature data in evaluating the meteorological effects of the cooling tower plume and by doing so has not adequately studied the potential for air crashes resulting from turbulence created by cooling tower discharge, changes of Visual Flight Rule conditions and carburetor icing potential.
Staff arguas that the contention is without basis in that temperatures are not averaged in the calculation of plume effects.
Staff states that all tower plume dimensions, plume rise and effects, airport-operations effects, fog, icing, cloud modification, precipitation modification and humidity changes were based on a total of 237 separ0te soundings taken in a one-year period from November 1974 though October 1975.
Staff further states that a separate computer run was made from each sounding and the results were not averaged.
Because the contention l
is erroneously based upon the permise of the alleged use of average l
temperature to calculate plume characteristics, the Staff recommends denial of thi. contention.
l l
Applicant states the contention is incomprehensible, that nothing is alleged to show any releases from the cooling tower would affect " changes in Visual Flight Rule conditions" as alleged, and no l
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basis is provided for the allegation that " cooling tower turbulence" might in some way increase the potential for air crashes.
Under questioning the Interveror could provide no specific instances of air traffic problems associated with cooling towers.
(Tr. 599-604.)
The only aspect af tnis contention for which the thread of'a basis was provided relates to the potential for carburetor icing in the " invisible" plume.
(Tr.602-604.) The contention as stated is denied.
The Board accepts this contention as stated below:
Neither Applicant nor Staff have considered the potential for and import of carburetor icing of aircraft flying into the Limerick cooling tower plume (s).
j'-5 ( AWPP)
Intervenor asserts that releases of radionuclides during both normal operation and under abnormal and accident conditions will cause adverse health effects for himself, his family and members of l
AWPP.
The Applicant maintains that this is an illegal challenge to 10 CFR Part 50, Appendix I.
The Commission has held, however, that health effects associated with routine radioactive emissions from a nuclear power plant in compliance with Appendix I may be litigated in licensing proceedings. Public Service Co. (Black Fox Station, Units 1 & 2), CLI-80-31,12 NRC 264, 277 (1980).
The Connission
4
_ 149 -
added that it balieves that unnecessary adjudication should be avoided. H. at 277.
The Staff states that with exception of the matters as to which there is insufficient basis, the contention should be admitted.
Intervenor's basis, insofar as it applies to health effects of releases of radionuclides, challenges the use of calculated annual rcleases as opposed to "the highest concentration of radioactive release."
Intervenor misconstrues the purpose of Appendix I.
Its purpose is to provide design objectives to meet the "As Low As Reasonably Achievable" (ALARA) criterion. Further, it specifies that if actual releases during any calendar quarter are such that radiation exposure, calculated on the same basis as the design objective exposure would exceed one-half this design objective annual exposure, corrective action is required.
Finally, Intervenor's example, to support his assertion that "The body is not affected by average annual releases but by the highest concentration of radioactive release," is meaningless. Any radiation dose affects the body, whether absorbed in a short term or a long term.
Specifically, if "2 units is the maximum permitted annual dose," "12 units of radioactivity [ sic]" given off in three months has no logical relationship to dose.
If Intervenor meant 12 l
units of dose were received in 3 months, the permitted annual dose already would have been exceeded. Again, Appendix I would not be the controlling regulation here.
Technical specification on release
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rates and 10 CFR Part 20 limits on allowable dose would be controlling.
We find no basis for this contention and accordingly it is not admitted.
V-7 (CEPA)
In this contention, CEPA asserts that no operating license should be issued for Limerick until a plan is developed for the ultimate disposal of spent nuclear fuel.
As we noted above, see page 47, supra, this contention is essentially the same as ECNP's waste confidence contention. For the reasons discussed in connection with ECNP's contention, this contention is not admitted.
V-8 (Lochstet)
In this contention, Dr. Lochstet seeks to address the
(
l environmental and health consequences of radon emissions related to l
l the nuclear fuel cycle. As discussed above, see pages 33-41, supra, Dr. Lochstet does not have standing as of right.
Nor did we find that he should be granted discretionary intervention on this issue.
The contention is denied.
l V-9 (Lochstet)
In contention V-9, Dr. Lochstet maintains that the environmental and health impacts of the Iodine-129 created in connection with operation o' the Limerick plants have not been l
adequately evaluated.
As we found above, supra pages 33-42, i
I
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Dr. Lochstet does not have standing as of right and does not merit discretionary intervention on this issue. This contention is, therefore, not admitted.
V-10 (Shniper)
In this contention, Mr. Shniper alleges that the Applicant's environmental report is in error in stating that there are no fossils on the Limerick site for which special provisions must be made.
Mr. Shniper refers to a newspaper article reporting that fossils have been found on the site. He asks the Board "to require applicant to submit a plan concerning what steps applicants propose to take to further explore the palentological [ sic] find, to arrange that further construction not interfere with or destroy any palentological [ sic] evidence."
The remedy sought by Mr. Shniper makes it apparent that he is concerned with the impact which construction may have on the fossils. As we discussed in connection with the supplementary cooling water system, impacts of construction are outside the jurisdiction of this Board. See pages 81-90, supra.
It is not clear what is intend 5d as the contention as opposed to the basis.
It is also not clear what relief is being sought by Mr. Shniper. The contention lacks the specificity required under Section 2.714 and for that reason and others listed above, this contention is denied.
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H. Group VI Contentions V1-1 (AWPP, Lewis)
The proposed contention asserts that the Applicant has failed t.o establish and carry out an adequate quality assurance program as required by Appendix B of 10 CFR Part 50.
Further, Intervenors assert that this is shown by a pattern of careless workmanship, departure from specified procedures, together with faulty inspection and supervision in the construction of Units 1 and 2 of the Limerick Generating Station.
Certain specific infractions are cited and a list of correspondence concerning these matters is provided.
(The assertion that Applicant has failed to comprehensively monitor the effects of quarry blasting as it relates to effects on concrete setting, concrete integrity in structures, and changes in sub-rock fractures, is rejected, as part of this proposed contention, as being without basis).
The Applicant believes this contention should be denied because:
it is merely a generalized attack on Applicant's quality assurance program during the construction phase; the only basis providei is a list of old correspondence; there is no -demonstration that the Applicant's resolution and disposition of any matter raised has been less than completely satisfactory; and there is no showing as to how any of the enumerated generalized subject areas " increases the risk of an accident."
The Staff finds the proposed contention admissible, except for the part relating to monitoring of the effects of quarry blasting.
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The Board, in consideration of this proposed contention, is mindful of its responsibility to find, as one basis for. approving an operating license for Limerick, that the facility has been constructed "in conformity with the construction permit and the application as amended, and the provisions of the Act, and the rules and regulations of the Corrrnission," and can and will be operated in
~
compliance with "the application as amended, the provisions of the Act, and the rules and regulations of the Commission."
The effectiveness of the Quality Assurance program is an essential ingredient in determining both the adequacy of construction and the ability to safely operate the facility.
Although the proposed contention could be made more specific with better articulated bases, nevertheless, the importance of the subject leads us to admit this proposed contention at this early stage of the proceeding, subject to the development of specific contentions and their bases regarding Applicant's alleged construction QA deficiencies and the import of this for the proper construction of the plant and for the ability of Applicant to implement a proper operational QA program.
I l
I.
Group VII Contentions VII-1 (Guild) l In contention VII-1, the Guild alleges that the Applicant will take measures likely to infringe upon the civil liberties of the l
public in order to provide security for the plants. We found above, I
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see page 31, supra, that the Guild does not have standing to assert this contention in this proceeding. This contention, therefore, is not admitted.
VII-2 (F0E)
In this contention, F0E maintains that granting operating licenses to the Limerick facilities will be a denial of due process to nearby residents. Clearly, procedural due process has not been denied these individuals since they have bean given notice and an opportunity for a full adjudicatory hearing before the licenses could be granted. Furthermore, although F0E alleges that NRC is not complying with procedures required by NEPA, no specific inadequacy is mentioned.
F0E, however, refers to the concept of substantive due process.
The gist of F0E's substantive due process claim is that PECo has not l
given residents information on risks and alternatives to the plant.
Much of this information is contained in the Applicant's applications for construction permits and operating licenses.
In any case, only the government, not PEC0, can be guilty of violating the Constitution by taking lives or property without due process.
U.S. Const. amend. 5.
Moreover, while it is true that in Meyer v. Nebraska, 262 U.S.
390 (1933), the Court held unconstitutional a state law preventing l
the teaching of German because it deprived citizens of the right to learn the German language, the case is not analogous to the present 1
- 155 -
one.
No statute or governmental body is depriving citizens of access to information in the present situation. Rather, what is sought is apparently an affirmative responsibility to provide information.
No such constitutional right is established in Meyer.
If the contention is intended to encompass any other substantive due process claim, that claim is not clearly stated.
It does not appear that the statute is being challenged as lacking rational basis. Moreover, it is not clear that this Board has jurisdiction to decide whether the Atomic Energy Act as written denies due process to those living near nuclear plants.
For the above reasons, this contention is not admitted.
J.
Emergency Planning (Group VIII) Contentions There are 31 emergency planning contentions advanced in this proceeding, numbered VIII-1 through 31.
One or more of the contentions, with one exception noted below, are advanced by Intervenors LEA, Keystone, CEPA, White or Lewis. The Applicant in general believes these contentions are premature since emergency plans by the Applicant and by responsible government agencies have not been proposed in response to the newer emergency planning requirements of 10 CFR 50.47 and Appendix E to Part 50.
In l
addition, some of the contentions may challenge the emergency planning regulations regarding the size of the emergency planing zones (EPZ).
However, it is premature in the Board's view to determine whether, because some limited flexibility in designating the EPZ, due to certain factors, is permitted by the regulations, l
l 4
- 156 -
10 CFR 5 50.47(c)(2), a specific enlargement of the EPZ is required.
The Board finds that emergency planning contentions should be deferred until the emergency plans are available.
Depending upon the schedule, it may be useful to establish separate schedules for the filing of contentions based on Applicant's emergency plan, and tne filing of contentions based on the local and state government emergency plans.
Intervenors LEA, Keystone, CEPA, White and Lewis shall file a coordinated listing of emergency planning contentions when that time is established.
Intervenors shall designate a lead intervenor to coordinate emergency planning matters (including discovery and notifications of meetings), and inform the Board and the parties of that designation within sixty days from the date of this Order.
It would appear premature to consider any discovery on emergency planning other than informal discussions, and the service on all parties of all correspondence and doctsnents regarding emergency planning among the Applicant, NRC Staff, the Commonwealth 1
l of Pennsylvania, FEMA, and other responsible government agencies.
The extent to which the Staff, the Commonwealth, FEMA and the Applicant involve the Intervenors in informal briefings on the status of emergency planning may affect greatly the need for formal discovery and the need to litigate many matters as formal contentions.
The exception alluded to above is that the Graterford l
Prisoners have advanced an emergency planning contention, VIII-10, l
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alleging inadequate plans to evacuate prisoners at Graterford Prison which is within the ten-mile EPZ. As discussed in the context of
.the standing of the prisoners, this contention is a separable special interest. Accordingly, the prisoners' participation, through their counsel the National Lawyers Guild, will be limited to this contention. The contention is conditionally admitted, and therefore must be respecified after offsite emergency plans for the Graterford Prison are made available. The prisoners may participate in this issue through the prehearing and hearing stages, without the need to coordinate through the lead emergency planning Intervenor.
V.
DISCOVERY Informal discovery, which includes no involvement or requests for involvement of the Board, shall begin immediately an: continue through Septemoer 30, 1982.
By October 11, 1982, the parties :, hall jointly file their views on whether informal discovery should continue, or whether discovery involving formal interrogatories, depositions and/or requests for dccuments should begin on some or all issues. Any Intervenor who wishes to have input in the joint recommendation shall inform counsel for LEA, the Staff and Applicant in writing of its views by September 30, 1982. The October 11, 1982 l
joint report shall be agreed upon by LEA, the Staff and Applicant.
The report should include a summary of the extent and subjects of the informal discovery which was conducted.
l
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Problems in and recormiendations for improvement of the discovery process should be highlighted.
Informal discovery, in the context intended through the end of September 1982, includes meetings, telephone discussions, furnishing of existing documents, and confirming informr. tion in writing as a followup to discussions. The parties are not precluded from more formal written interrogatories or depositions, where both the requesting and answering parties agree it would be productive.
However, no motions to compel to discovery may be filed with the Board until after our action,in light of the October 11 report.
In addition to the lead Intervenors required for the subjects of PRA and emergency planning, Intervenors should consider designating lead intervenors in subject areas comprising the other contentions as soon as possible to facilitate discovery.
In any i
event, where there are multiple intervenors sponsoring the same contentions only one of them shall be the lead intervenor to j
coordinate matters related to the contention.
If the parties do not resolve coordination among themselves, the Board will consider taking further action, perhaps in the same time-frame as a prehearing conference to consider all pending matters next fall.
If Del-Aware, the Staff and the Applicant believe more fomal discovery must be instituted on a separate prompt schedule with respect to Del-Aware's issues which may oe affected by construction, they should attempt to agree on such a schedule.
If necessary, a ruling from the Board may be requested.
x-4
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VI. RECONSIDERATION AND APPEAL Pursuant to 10 CFR s 2.751a(d), parties normally may file
- objections'(requests for reconsideration) to this Order with the Licensing Board within five days after service (ten days in the case of the Staff) of the Order.
Parties may not file replies to the objections unless the Board so directs.
Due to the length of this Order, the Board extends the time under 2.751a(d) to within ten days of the service, and twenty days in the case of the Staff.
Pursuant to 10 CFR 2.714a, within ten days after service of this Order, a party may file a motion of appeal and supporting brief before the Atomic Safety and Licensing Appeal Board.
Any other party may file a brief in support of or in opposition to the appeal-within ten days after service of the appeal.
7.
.?
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Appeals permitted under 2.714a are limited as follows:
Petitioners for leave to intervene may only appeal an order wholly denying intervention on the question of whether intervention should have been permitted in whole or in part.
An order granting a petition for leave to intervene is appealable by a party other than the Intervenor on the question of whether the petition should have been wholly denied.
ATOMIC SAFETY AND LICENSING BCARD d e k r.
La'wrence Brenner, Chairman ADMINISTRATIVE JUDGE
_:t 4 PK Ur. Richard F. Cole ADMINISTRATIVE JUDGE l
Dr. Peter A. Morris ADMINISTRATIVE JUDGE Bethesda, Maryland June 1, 1982 l
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