ML20054M768
| ML20054M768 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 07/12/1982 |
| From: | Bloch P, Kline J, Shon F Atomic Safety and Licensing Board Panel |
| To: | OHIO CITIZENS FOR RESPONSIBLE ENERGY, SUNFLOWER ALLIANCE |
| References | |
| ISSUANCES-OL, NUDOCS 8207140383 | |
| Download: ML20054M768 (14) | |
Text
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r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B. Bloch, Chairman Dr. Jerry R. Kline SEVEDJul.laigg Mr. Frederick J. Shon In the Matter of Docket Nos. 50-440-0L 50-441-0L CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.
(Perry Nuclear Power Plant, Units 1 & 2)
July 12, 1982 MEMORANDUM AND ORDER (Concerning Motions to Admit Late Contentions)
Ohio Citizens for Responsible Energy (OCRE) and Sunflower Alliance, Inc., et al. (Sunflower) have requested leave to file contentions related to: (A) Substratum Placement of Water Intake Structure (OCRE), (B) Use of Commercial Spent Fuel for Nuclear Weapons (OCRE), (C) Polymer Degridation from Radiation Exposure (0CRE), (D) Psychological Stress (Sunflower), and (E) Improper Consideration in the Draft Environmental Statement of Local Economic Benefits (Sunflower).
In addition, OCRE has resubmitted for admis-sion the following contention:
(F) Safe Disposal / Storage of Radioactive Materials (OCRE).
Appendix A to this opinion lists the abbreviations we will use for the relevant filings, including the replies intervenors filed pursuant to Board order.
We have decided to admit contentions (C), (D) and (E) and to deny admission of the other contentions.
Each of the contentions that was excluded was found to lack a proper basis, either for f actual or legal reasons.
Having determined that a basis was lacking, we did not consider whether or not there was good cause for late filing of these contentions.
10 CFR 2.714(b) and 2.714(a)(1).
c207140383 820712 DR ADOCK 05000 gg g
Late Contentions:
2 I
SUBSTRATUM PLACEMENT OF WATER INTAKE STRUCTURE OCRE contends that the water intake structure that is part of the closed-cycle cooling system proposed by Cleveland Electric Illuminating Company (applicant) will ' rill fish, fish eggs and larvae through impingement or entrainment.
OCRE does not consider these losses to be negligible, although it concedes that the losses would be several orders of magnitude less than losses caused by some other Lake Erie power plants.
OCRE Reply at 2.
See NUREG-0884 (Draft Environmental Statement for Perry Nuclear Power Plant, March 1982) 5.5.2.1 at 5-9 to 5-12.
OCRE then suggests that appli-cant could reduce these losses by employing a radial well system of water intake, similar to a system used in the Grand Gulf Nuclear Station.
Staff opposed admissibility of this contention because OCRE has not provided a basis for the assertion that its proposed intake structure would significantly improve the environc: ental impact of the present intake design structure.
Staff Ans. (1) at 3-4.
In response, OCRE argues that the pro-posed structure would reduce losses from 1 x 10 to zero, which is sig-nificant. OCRE Reply at 2.
NUREG-0884, at 5-10, concluded that losses from entrainment at Perry would be similar to the 5,500 per year losses at Davis-Besse Nuclear Power Station during 1979 and 1980.
It also found that the species affected "will be rough and forage fish that are numerous in the central basin of the l
lake. Id. at 5 12 to 5-13.
Since OCRE has not provided any reason for disbelieving these find-ings of the Draf t Envirornental Statement, we do not consider that it has I
l provided a basis for the belief that the radial well intake structure would substantially improve the overall environmental impact of Perry, even if we accept the assertion that such wells would not kill any fish.
Consequently, this contention shall not be admitted for lack of a sufficient basis.
(We need not address applicant's argument that the radial well cooling system is not suited to Lake Erie, where its installation would be highly impracti-Cal.)
Late Contentions:
3 II USE OF COMMERCIAL FUEL FOR NUCLEAR WEAPONS OCRE suspects, based on recent actions of the President, recently announced advancements in laser isotope separation technology, statements by the Secretary of the Department of Energy and an excerpt from a Cleveland Electric Illuminating Company publication, that this nation may one day use spent fuel from the Perry plant to build nuclear weapons.
As a consequence, OCRE asks that this potential _ use of spent fuel, and the attendant " horrific consequences of nuclear war",
be considered.in the Environmental Impact Statement for Perry.
OCRE Motion at 3-4; OCRE Reply at 7.
Staff and applicant answer, in part, that the proposed federal action to license this power plant does not include a proposal for the use of nuc-lear waste for nuclear weapons and that the National Environmental Policy Act of 1969 (NEPA), 42 USC 4332, does not require an evaluation of such a use of waste.
Staff Ans. (1) at 13, citing Kleooe v. Sierra Club, 427 U.S.
390, 403 et seo.; Applicant Ans. (1) at 14, citing Kleppe and other cases.
OCRE, whose legal competence is evident to both us and the ppeal Board ( ALAB-675 at 2, footnote 1), has no answer to this particular legal argument.
Instead, it cites two cases for an entirely correct but irrele-vant proposition, that if it cannot gain admission for its contention now it will be far harder for it to reopen the record later.
(Kansas Gas and Electric and Kansas City Power and Light (Wolf Creek Generating Station, Unit 1), ALA8-462, 7 NRC 320, 338 (1978); Public Service Comoany of Oklahoma (B1ack Fox, Units 1 and 2), ALA8-573, 10 NRC 775, 804 (1979)).
There is substantial sense supporting the legal principle that an environmental impact statement may be limited to the effects of the particu-lar federal action that is being proposed.
NEPA is a statute.
It does not require that legislative action, authorized by the Constitution, be accom-panied by environmental statements.
If federal actions had to be considered in light of all possible (or likely) legislation which they might facili-tate, that process of prognostication likely would hamstring federal actions
Late Contentions:
4 of many kinds.
Furthermore, the benefit from such a process would be slight since citizens already have an opportunity to oppose legislation through the elective process and their right to communicate with and peti-tion their elected representatives.
Even if spent fuel could be diverted for use in weapons through administrative action, it would not be appropriate to speculate about that possibility in this proceeding.
When that action is considered, it may be covered by NEPA or may be exempt.
It is the action of taking fuel for wea-pons that is of primary concern to OCRE, and it may challenge that action when it is being considered.
It is not appropriate for us to consider an advance challenge to that speculative future action.
Consequently, this contention shall not be admitted because it is not cognizable under NEPA.
III POLYMER DEGRADATION OCRE contends that radiation-induced embrittlement of polymers ca'u' sed by long-term low dose exposures, particularly to electrical insulation, may compromise plant safety.
OCRE therefore contends th at this insulation should be tested under more' realistic conditions than the currently prevail-ing high-dose, short duration tests.
As a basis, OCRE relies on a Sandia Laboratories study which indicates that low-rate long-duration exposures may indeed cause greater degradation of polymers than does a high-rate short-duration exposure.
Mechanism of Synergism and Dose Rate Effects, NUREG CR/2156, June 1981; and Occurrence and Implications of Radiation Dose-Rate Effects for Material Aging Studies, NUREG CR/2157, June 1981.
Staff conceces that the basis for this contention is stated with sufficient particularity (Staff Ans. (1) at 15), and we agree.
The discus-sion of this contention therefore shifts to whether 0CRE has shown good cause for late filing.
OCRE learned of this problem from Science News, March 27, 1982, at 215.
OCRE Motion at 6.
That is a publication which provides comparatively
Late Contentions:
5 current information.
Consequently, that publication is different from a general news publication which picks up an issue years after it has achieved widespread notoriety.
Compare Cleveland Electric Company (Perry, Units 1 and 2), Memorandum and Order, February 26, 1982, slip op. at 4; Staf f Ans.
(1) at 16, footnote 44.
We therefore agree with OCRE that it would be un-f air to charge it with current knowledge of all NRC publications and that it acts with reasonable diligence when it keeps abreast of journals such as Science News, Science and the Bulletin of the Atomic Scientists, each of which OCRE has cited to us at one time or another in this proceeding.
Con-sequently, we find that 0CRE nas demonstrated good cause for - late filing, the first criterion of 10 CFR 2.714.
The second criterion for late filing favors the admission of this contention.
Although there is a relevant interim final rule in effect and a final rule about to be promulgated (more about this below), it appears like-ly that the Commission will require compliance with the principle OCRE seeks to apply.
Furthermore, the applicant has not claimed that it is in comkli-ance with the new rule, so this licensing proceeding is an entirely proper forum for determining compliance.
OCRE also passes the third criterion with flying colors.
It has con-sistently shown the ability to analyze and comprehend technical materials, and we are confident that it may reasonably be expected to participate in the development of a sound record.
In its filings on this contention, in particular, its analyses have been sound, and its arguments concerning policy implications have been well reasoned.
The fourth criterion also is met, as OCRE's interest on this issue is not represented by another party. The fifth criterion, while being adverse, is not overly important.
We are still at such an early stage of this pro-ceeding that applicant recently has resisted the Board's suggestion that it begin to negotiate target dates for completion of discovery.
On balance, the criteria for late filing also are met. Consequently, both the basis requirement and the late-filing requirement have been met and
Late Contentions:
6 this contention ordinarily would be admitted.
However, effective June 30, 1982, the Commission amended its regulations to suspend completion schedules for environmental qualification of safety-related equipment in operating nuclear power plants.
47 Fed. Reg. 28363 (June 30,1982).
The CommissOn indicated that licensees (and,' by implication, applicants) shoulo continue efforts to meet the requirements, but that it was suspending the oeadline for compliance.
Id. at 3.
The Commission's rationale relates primarily to operating plants, finding that there would be no undue risk to the public health and safety from continued operation pending completion of the equipment qualification program.
M.
Its statement does not, however, clarify the applicability of the deadline suspension to pending operating 1icense proceedings, such as this one.
Under the circumstances, it appears highly likely that applicants will be required to show compliance with the electrical qualification rule prior to a license being issued.
Hence, it seems better to admit the con-tention.
However, the remaining uncertainty makes it likely that we wduld grant applicant's or staff's motion to suspend this contention from discov-ery pencing issuance of a final rule.
(We urge applicant and staff to con-sider whether such a motion might be adverse to its interests because it might engender delay.)
Should such a motion be filed, discovery shall be automatically stayed with respect to this contention, which we admit to this proceeding.
The contention, as admitted, is:
Issue #9.
Applicant has not demonstrated that the exposure of poly-mers to radiation during the prolonged operating history of Perry would not cause unsafe conditions to occur.
Because of the potential breadth of this contention, we will require OCRE (which shall act as lead intervenor on this contention) to give increased particularity to this contention, by providing greater specificity as to the basis for believing that particular wires or other locations are potentially dangerous, prior to the time for an evidentiary hearing. The schedule of
Late Contentions:
7 target dates for this case should include a date for particularizing this contention.
We note that applicant argues that the experience of other, operating plants demonstrates that there is no imminent danger of degradation of poly-mers in its plant.
However, applicant has not submitted evidence of the current condition of the polymers in analagous plants or established that the location of polymers in its plants is sufficiently analagous to the location at one or more existing plants to provide the requisite safety assurance.
Hence, the generally cited experience of other plants does not provide a basis for rejecting this contention.
IV PSYCHOLOGICAL STRESS On April 2,1982, the United States Court of Appeals issued its deci-sion in People Against Nuclear Energy v. United States Nuclear Regulatory Commission, No. 81-1131, slip op.
(PANE).
Sunflower has filed its conten-tion in reliance on that decision.
Applicant's substantive opposition to this contention is that it lacks basis for the belief of "the existence or magnitude of psychological stress for the particular reactor at issue."
Applicant Ans. (2) at 3.
In response, Sunflower conducted a mail poll of its members.
Sunflower Reply (unnumbered attachment).
(Sunflower could assist the Board, in the future, by numbering all pages of its filings.)
Although many of the excerpts from the member responses do not fit the test of psychological impact prescribed
(
by PANE, some of the responses provide a basis for inquiring further and therefore provide a basis for admission of the contention.
As with Issue
- 9, however, further particularity for this contention needs to be provided I
before the evidentiary hearing so that applicant may be more fully informed of the precise nature of the psychological harm that is being averred.
Staff does not argue that this contention lacks basis or that PANE is insufficient grounds for late filing.
Instead, it urged us (on May 25, 1982) to await Commission guidance before admitting this contention.
At
Late Contentions:
8 this time, however, we find it difficult to anticipate receiving guidance in the near future; hence we feel constrained to follow the Commission's previ-aus guidance and to act promptly on this matter.
("The licensing boards should issue timely rulings on all matters."
Statement of Policy on Conduct of Licensing Proceedings 46 FR 28533 (May 27, 1981).
We find the following passages of PANE to be controlling:
We conclude that, in the context of NEPA, health encompasses psychological health.
To implement a national policy based on "the critical importance of restoring and maintaining environmental quali-ty to the overall welf are and development of man," 42 U.S.C.
4331 (a)(1976),
Congress required each federal agency to utilize a
" systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts." Id.
4332(2)(A); see 40 C.F.R.
1502.6, 1507.2 (1981);
-cf.
Chelsea-Neighborhood Ass'ns v.
U.S.
Postal Service, 516 F.2d 378, 388 (2d Cir.1975((social as well as physical sciences relevant under NEPA; agency must consider dangers of emotional and physical isolation of high-rise apartment building, which might as a result become a " human jungle").
NEPA, moreover, does not authorize federal agencies to deal with intangible factors by ignoring them.
It expressly instructs.all fed-eral agencies to identify and develop methods and procedures "which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations."
42 U.S.C.
4332(2)(B)
(1976).
Id at 13, 14.
PANE teaches, however, that not every psychologically adverse reac-tion is congnizable:
We conclude that PANE's allegation--in the wake of a unique and trau-matic nuclear accident--that renewed operation of TMI-1 may cause medically recognized impairment of the 3sycholgical health of neigh-boring residents is cognizable under NE)A.
NEPA does not encompass mere dissatisfactions arising from social opinions, economic concerns, or political disagreements with agency policies.
It does apply to post-traumatic anxieties, accompanied by physical effects and caused by fears of recurring catastrophe.
[ Emphasis added. Footnote deleted.] Id. at 16-17.
i Late Contentions:
9 Obviously there has not been a catastrophe at Perry.
However, we interpret PANE to require that Perry's environmental impact statement consi-der whether Perry's operation will cause people in the vicinity of the plant to suffer anxieties of such severity as to be medically recognized impair-ments of psychological health.
PANE holds that such health effects, if present, must be considered under NEPA.
The results of Sunflower's survey of its members give us reason to inquire further before we decide whether the operation of Perry will cause such effects.
Consequently, Sunflower has adequately specified the basis for its contention.
(If the Commission decides otherwise, we will modify our decision accordingly.)
Staff concludes that, in light of the PANE decision, Sunflower's con-tention should be considered timely.
That decision changed commonly held beliefs about the acceptability of psychological stress contentions; and a filing delay of three months from issuance of the initial decree (explained in an opinion only af ter Sunflower's filing) is not an undue delay.
- Hence, on balance, we find that the factors governing admission of a late conten-tion are satisfied.
The issue, as admitted, is:
Issue #10: The Draft Environmental Impact Statement has not adequate-ly considered whether Perry's operation will cause people in the vicinity of the plant to suffer anxieties of such severity as to be medically recognized impairments of psychological health.
Sunflower shall be lead intervenor for this contention.
V LOCAL ECONOMIC EFFECTS IN THE COST-BENEFIT ANALYSIS Sunflower points out that the Draft Environmental Analysis, at p.
6-2, has, innproperly, considered increased employment and tax revenues to be benfits for purposes of the cost-benefit analysis.
It cites Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-471, 7 NRC 477, 479 (1978).
Applicant answers that benefits accruing from local taxes must be considered, together with offsetting costs which Sunflower might have suggested, in order to have a properly balanced EIS.
Applicant Ans. (2) at
Late Contentions:
10 12-14 However, the citations in applicant's brief appear to stand for the proposition that local taxes may be used to offset costs such as an " influx of workers" but that the taxes may not be tnemselves considered to be part of the " benefit side" of a cost benefit analysis.
g, at 509, especially footnote 58.
Whatever the merits of the argument between applicant and intervenor on whether local taxes may be a " direct benefit", we need not now decide that issue in order to determine whether the contention should be admitted.
Staff has stated that this matter will be " clarified" in the Final Environ-mental Statement; however, staff apparently is not sure what the nature of this clarification will be.
Staff Ans. (2) at 7, compare text and footnote 16.
Given this uncertainty as to how the issue of " local costs" will be handled, we think it fair to say that Sunflower's contention addresses an area in which there is a genuine issue of fact concerning whether the matter will be properly handled.
Hence, the basis for this contention has been satisfactorily specified.
Applicant also argues that this matter was not raised in a timely f ashion, since all the environmental statements in this case--dating back to the construction stage--dealt with it in the same way.
This, however, neglects the fact that the case on which Sunflower relies was decided in 1978, sub sequent to the earlier environmental statements prepared for the Perry plant.
Hence, we conclude that the way this issue was handled in the DES provides good cause for the filing of this contention.
Staff agr ees.
Staff Ans. (2) at 7.
Since this is new information and none of the other f actors affecting late contentions militates strongly against the admission of this contention, we have decided that it is proper to admit it.
The admitted contention, for which Sunflower shall be the lead inter-venor, is:
Issue #11:
The Environmental Impact Statement (EIS) accords too much weignt to increased employment and tax revenues to the local commun-ity, factors which may not be weighed directly in the cost-benefit b al ance.
Late Contentions:
11 Because the challenged portion of the DES will be altered before the EIS is issued, we have accepted the validity of Sunflower's contention.
See LBP-81-24,14 NRC 175,190 (1981)(intervenors must make current filings of con-tentions, so the basis for a contention must be viewed in light of whether there is a current deficiency in tne relevant documents, not in light of a new document which may be filed later).
However, we will expect Sunflower to specify the basis for finding the Environmental Impact Statement to be deficient prior to the time when an evidentiary hearing may be held on this contention.
VI MOTION TO RESUBMIT CONTENTION ON RADI0 ACTIVE WASTE OCRE argues that a recent decision of the U.S. Court of Appeals for the District of Columbia requires this Board to admit its Contention 15, entitled
" Safe Disposal / Storage of Radioactive Mat eri al s. "
Natural Resources Defense Council v. NRC (NRDC), Civil Action No. 74-1586 (April 27, 1982).
As OCRE correctly states, the majority in the NRDC case criticized the "zero-release assumption", which it found to be necessary to the validity of Table S-3, 10 CFR 51.20(e). OCRE Resubmit at 1-2.
However, as applicant correctly indicates, the U.S. Court of Appeals has stayed its mandate pending final resolution of the petition for rehear-ing en banc in that case.
Hence, Table S3 continues to be in effect, as it may continue to be until the NRDC case is finally resolved.
Until that man-date is issued, the rul'es of the Commission remain in effect and this Board continues to be bound by them.
As a result, the Court of Appeals' decision does not as yet provide a ground for resubmission of this contention.
In light of the ground for our decision, we need not address appli-cant's argument that resubmission would be inappropriate even had the NRDC mandate been issued.
Late Contentions:
12 0R0ER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 12th day of July, 1982, ORDERED (1)
The following contentions shall be admitted as issues in this proceeding:
Issue #9.
Applicant has not demonstrated that the exposure of poly-mers to radiation during the prolonged operating history of Perry would not cause unsafe conditions to occur.
Issue #10: The Draft Environmental Impact Statement has not adequate-ly considered whether Perry's operation will cause people in the vicinity of the plant to suffer anxieties of such severity as to be mecically recognized impairments of psychological health.
Issue #11: The Environmental Impact Statement (EIS) accords too much weight to increased employment and tax revenues to the local communi-ty, factors which may not be weighed directly in the cost-benefit balance.
(2) The lead intervenors for the admitted contentions shall,,be: Ohio Citizens for Responsible Energy (OCRE) for Issue #9 and the Sunflower Alli-ance Inc., et al., (Sunflower) for Issues #10 and 11.
(3)
All other contentions submitted or resubmitted to the Board by OCRE or Sunflower on April 22, 1982, May 5, 1982 and June 1, 1982, are denied admission as issues in this proceeding.
~
Late Contentions:
13 FOR THE ATOMIC SAFETY AND LICENSING BOARD 0
b derer 6. Slocn, Chairman ADMINISTRATIVE JUDGE dh
/
(/ Jerry R. Kline, ADMINIST TIVE JUDGE "Ph&w$/w.
Frederick J. Shon ADMINISTRATIVE JUDGE Bethesda, Maryland
~1
9
- ~
Late Contentions:
14 APPENDIX A FILINGS CONCERNING LATE CONTENTIONS NAME OF FILING DATE AB8REVIATED CITATION OCRE Motion for Leave to Elle its Contentions 17, 18, and 19 April 22, 1982 OCRE Motion Motion for Leave to Submit Additional Contentions May 5, 1982 Sunflower Motion Applicant's Answer to OCRE Motion For Leave to File its Contentions 17, 18, and 19 May 7, 1982 Applicant Ans. (1)
Response of NRC Staff to Motion of OCRE for Leave to File its Contentions 17,18, and 19 May 12, 1982 Staff Ans. (1)
Applicant's Answer to Sunflower Motion for Leave to Submit Additional Contentions May 20, 1982 Applicant Ans. (2)
Response of NRC Staff to Motion of Sunflower for Leave to Submit Additional Contentions May 25, 1982 Staff Ans. (2)
OCRE Reply [Concerning]
Contentions 17,18, and 19 June 1, 1982 0CRE Reply OCRE Motion to Resubmit Contention 15 June 1, 1982 OCRE Resubmit Applicant's Answer to OCRE Motion To Resubmit Contention 15 June 16, 1982 Applicant Ans. (3)
Response of NRC Staff [Concerning]
OCRE Contention 15 June 21, 1982 Staff Ans. (3)
Reply Brief of Sunflower [Concerning]
Two Late Filed Contentions June 21, 1982 Sunflower Reply I
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