ML20055A411
| ML20055A411 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 07/14/1982 |
| From: | Brenner L, Cole R, Morris P Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8207160292 | |
| Download: ML20055A411 (19) | |
Text
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u UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD SERVED Jud 5682 BEFORE ADMINISTRATIVE JUDGES Lawrence Brenner, Chairman Dr. Richard F. Cole Dr. Peter A. Morris In the Matter of Docket Nos. 50-352
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50-353 PHILADELPHIA ELECTRIC COMPANY
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(Limerick Generating Station,
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Units 1 and 2)
July 14, 1982 MEMORANDUM AND ORDER (Concerning Objections to June 1,1982 Special Prehearing Conference Order)
On June 1,1982 the Licensing Board issued a special prehearing conference order (SPCO) which ruled on petitions to intervene and admissibility of proposed contentions.
Timely objections to that order were received from the Applicant, Limerick Ecology Action (LEA), Del-Aware, Mr. Marvin Lewis, the Air and Water Pollution Patrol (AWPP), and the NRC Staff.
The Board has considered the filings, and has reached the following conclusions with regard to each party's objections.
8207160292 820714 PDR ADOCK 05000352 G
PDR Q J C2--
. Appl icant A.
Supplementary Cooling Water System.
The Applicant believes that in its discussion of the supplementary cooling water system in the SPC0, the Board " intimated" that it would stay construction of the Point Pleasant Pumping Station and Bradshaw Reservoir until completion of the Staff's environmental review.
The Applicant suggests that the Board find that it lacks jurisdiction to take such action.1/
The Board did not indicate in its order that it had authority to stay the construction in question or that it intended to order such a stay.
Rather it indicated that if particular issues cannot be decided before this construction commences, some interim action might be necessary.
It is not apparent at this time that a decision cannot be reached before construction begins.
Because the situation has not yet been presented, the Board has not decided what action it might take if an early decision proves infeasible. While a stay might be one possible action if the Board determined that it had authority to issue one, there are other poss ib il it ies. Among them are the possibilities that the Board might
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The Staff is similarly concerned that the Board has erroneously determined that it has jurisdiction to stay this construction.
See NRC Staff's Request For Reconsideration of Licensing Board's Special Prehearing Conference Order (June 28, 1982) at 13-14.
. certify to the Commission the question of whether such construction should be stayed or that the Board might determine that sunk costs from that par-ticular construction should not be considered in the cost-benefit analysis.
It is not necessary, therefore, to address at this time the question of whether the Board would have authority to stay the construction.
The Board does, however, firmly believe that NEPA requires that the operational impacts at issue be given meaningful consideration. The contentions which the Board proposes to hear before construction begins concern environmental impacts attributable to operation of the plant.
Owing to changes in the proposed diversion since the construction permit FES, they have not been considered by the NRC.
Because they concern operational impacts, this Board, as we found in the SPC0, has jurisdiction to hear them. However, if construction continues before the Board has an opportunity to consider these issues, such consideration could be rendered meaningless, e.g., the cost of minimizing environmental harm may have become prohibitively expensive.
The courts have emphasized that Congress intended that agencies give serious consideration to environmental costs and that this requires agencies to consider actions to avoid these costs.
Hence, the courts have stated they will not permit NEPA to become a " paper tiger" and compliance with it "a pro forma ritual." See Calvert Cliffs' Coordin' ting Committee, Inc. v. AEC, 449 F.2d 1109, 1114, 1128 (D.C. Cir. 1971).
It is commonly recognized that as construction continues, the cost of corrective action to i
a
. minimize environmental harm may increase, even to the point where such action is not reasonably possible.
Id. at 1128; Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-14, 7 NRC 952, 959-60 (1978); Consumers Power Company (Midland Plant, Units 1 and 2),
ALAB-395, 5 NRC 772, 779 (1977).
In an effort to comply with Congress's intent in enacting NEPA, the Board intends to consider these contentions before construction has advanced so far that there is no realistic opportunity for it to order actions which it may determine are necessary to minimize harm to the environment.
The Applicant also seeks reconsideration of the admission of particular contentions concerning the supplementary cooling water system.
It maintains that since the subjects of contentions V-14, V-15, V-16a, and V-16b have been or will be considered by either the Corps of Engineers or the DRBC, the Licensing Board should not consider them.
In the SPC0, this Board discussed at considerable length the extent to which the NRC could rely upon the environmental findings of these other agencies.
It provided guidance which neither required the Staff to begin its review ab initio nor permitted the Staff to abdicate all responsibility for a review. The Board reaffirms its previous holding as to the extent to which the Staff may rely on environmental determinations by other agencies. See SPC0 at 62-72.
Contention V-14, as rewritten by the Board (SPC0 at 87), according to the Applicant concerns construction impacts.
Construction impacts, as we found in the SPC0 (SPC0 at 83-86), are not within the jurisdiction of this
5-Board. We recognize that it is a close question whether the impacts in contention V-14 result from construction or operation. Having reconsidered i
i this matter we conclude that these impacts, although they will continue after the plant begins operations, are essentially attributable to construction, and, hence, we strike contention V-14 from the admitted contentions.
The Applicant maintains that contention V-16b lacks basis and should not have been admitted. The Applicant relies on findings by the DRBC for its statement that the contention lacks basis. Reliance on these findings, however, requires an examination of the merits and such an examination is inappropriate at this time. The Board has no difficulty in understanding the mechanism by which seepage could occur and, without judging the merits, cannot at this time find this contention lacks basis.
B.
Probabilistic Risk Assessment (PRA).
The Board has fully considered Applicant's arguments that the PRA is excluded from the "1icensing process" and that we should certify the question to the Commission.
SPC0 103-113. Applicant presents no reason to reconsider the discussion and ruling in the SPC0, and we decline to do so.
Informal discovery shall proceed as previously ordered, and shall include the PRA issues. The views of the parties is as to whether formal discovery on the PRA should be conducted on a different schedule than other issues,
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I" should be included in the joint report on discovery which will be filed by October 11, 1982.
C.
Quality Assurance (Contention VI-1).
The Applicant is incorrect that the Board found this contention, advanced by AWPP and Mr. Lewis, so deficient in specificity and basis as not to be admissible, and admitted it only because the Board thought the subject to be very important. Rather we found the contention admissible, given the specific QA infractions and correspondence cited, but also found that, in order to make the litigation more efficient, the contention should be made more specific after the parties have had the benefit of discovery.
SPC0 at 152-53. The Board also noted that this is a very important issue.
Therefore, we believe parties who have shown initially some reasonable basis to question the Applicant's QA program, as has been done here, should have the benefit of discovery on this issue.
It is also noteworthy that the history of Applicant's QA implementation, and Staff reports on the subject, cannot simply be gleaned from the FSAR as can information on other subjects.
D.
Graterford Prisoners.
Applicant objects that the Board improperly " substituted" the Graterford Prisoners as a party in place of the National Lawyers Guild.
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. We disagree. Applicant and Staff objected that the Guild was more akin to counsel than a party and that the prisoners were the real party in interest.
In response, the Guild agreed that the 17 individual prisoners could be the consolidated party. Applicant now objects to this change, but cannot have it both ways.
The affidavits of these prisoners authorize the Guild to represent them. The timely petition of the Guild from the outset put everyone on notice that it would advocate the prisoners' rights to have an emergency plan which adequately provides for them.
Thus, there is no prej ud ice. We note that as a result of the Guild's acquiescence, the Board did not rule on whether the Guild would have had standing to pursue this contention (SPC0 at 32).
LEA LEA is correct that the Board intends to set a schedule for the further specification of contentions which were conditionally admitted, and that such specification in response to new information will not be scheduled until af ter informal discovery is completed at the end of September 1982. The Board expects to consider the possible schedule in the i
fall of 1982, possibly during a prehearing conference.
The Board expects to give parties at least thirty days notice before setting the first date i
i for specification of contentions.
The Board agrees that the Applicant should provide notification that particular application snendments contain the anticipated new information r --,
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. relevant to particular contentions which were conditionally admitted, and that Applicant should so state when it has updated its application with essentially all the information it intends to include in its application with resaect to a particular contention.
The above notifications will be helpful for the information of the Board as well as the Staff and the other parties.
Del-Aware Del-Aware seeks reconsideration of the portion of our order which excludes from consideration in this hearing environmental impacts of that portion of the Point Pleasant diversion and its associated water supply system which is to be utilized solely by the Neshaminy Water Resources Authority (NWRA). Del-Aware argues that the NWRA is financially depen' dent on the Applicant for completion of the entire system and that the NWRA portion, thus, lacks independent financial utility. This is simply another way of restating the argument that but for the Applicant's participation in building part of the system, the part utilized only by NWRA would not be bu il t. As we explained previously, the "but for" test is not the correct test in this situatinn.
(SPC0 at 76-77). Nor do we find financial dependence to be the equivalent of lack of physical independent utility, 1
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. and we have found no case equating the two.2_/ Hence, we decline to change our ruling that the part of the system attributable only to the NWRA will not be considered in these hearings.
Secondly, Del-Aware asks that the Board reconsider its decision to consider on1y those impacts resulting from changes since the construction permit stage.
Del-Aware does not dispute the Licensing Board's finding i
that impacts considered in the construction permit proceedings need not be reconsidered absent new information.
See SPC0 at 54-55. Rather, Del-Aware argues these impacts were not considered.
It appears to the Board, however, that both construction and operation impacts of the diversion were, in fact, considered during the construction permit stage.
See Philadelphia Electric Co. (Limerick Generating Station, Untis 1 and 2),
ALAB-262, 1 NRC 163, 169, 185 (1975).
Moreover, Del-Aware seeks to expand our consideration to construction impacts. We have held these are beyond our jurisdiction.
(SPC0 at 83-86).
Del-Aware appears to argue that if the construction permit proceedings were deficient in that regard, we should noir remedy that. Our jurisdiction may not be expanded to cover construction impacts simply because of a past deficiency, if indeed one exists.
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In addition, the Applicant has supplied the affidavit of Robert A.
Flowers, Executive Director of the NWRA, which indicates that the NWRA is committed to constructing this part of the system with or without the Applicant.
. Nor will we consider problems of depletion of Delaware River flow volume. This is an allocation decision, entrusted to the DRBC.
See SPC0 at 70-71.
The Applicant has supplied the affidavit of Gerald M. Hansler, Executive Director of the DRBC, indicating that the federal participation necessary to activate the statutory preclusion has occurred. Although Del-Aware argues that the DRBC decision on Point Pleasant is nonfinal because DRBC deferred to the NRC on the question of considering the relative value of Limerick as a use for Delaware River water, we find there was no such deference. Having reread the materials cited by Del-Aware, we understand them to say that the NRC will consider the environmental impacts of the Limerick plant, but not to refer specifically to the Point Pleasant diversion.
We have indicated that, with the exception of allocation questions, the NRC will consider Limerick's environmental impacts even if they have previously been considered by the DRBC.
We have simply indicated that the Staff need not proceed on these matters as though in a vacuum.
Finally, Del-Aware suggests that new information developed since the prehearing conference in January should cause us to reconsider our denial of admission of contention V-17.
Specifically, Del-Aware mentions a new intake location in the proximity of tne Tohickon Creek entry into the Delaware River and alleges this will cause the water. taken in by the diversion to contain an increased level of toxics.
This information has no relevance to the admissibility of contention V-17, which concerns 1
attributing the entire diversion to Limerick.
It appears relevant to the admissibility of V>l6c, and we discuss it in that context. V-16c alleges
1 that water taken in by the Point Pleasant diversion will cause toxic pollution of the receiving waters of the Perkiomen and Schuylkill.
It appears to the Board that this new intake location is not yet firmly established; therefore the Board is not inclined to rely on it as a basis for admitting the contention.
If it later becomes apparent that the intake will be located where it allegedly will take in more seriously degraded water, we would be willing to consider whether there was justification for f
admitting this as an untimely contention.
2 l
Marvin Lewis 4
1 A.
Electromagnetic Pulse (I-49).
I-49 concerns the destruction or disruption of plant safety controls by an electromagnetic pulse (EMP) generated by a nuclear explosion.
Mr. Lewis argues that, in denying this contention, the Board erred in not considering a high altitude non-accidental nuclear explosion such as might occur in the currently defunct Project Orion. Mr. Lewis argued this same matter before the Board on January 8 and nothing new is presented.
The l
Board finds the possibility of a non-accidental " friendly" (as contrasted with an enemy act or an act related to U.S. weapons activities covered under 50.13) nuclear explosion to be sufficiently remote and/or speculative, so that the contention must remain denied.
Request for i
certification is also denied.
I
. B.
Cask Inspection (I-50).
I-50 alleges the spent fuel shipping casks are unsafe.
In his request for reconsideration, Mr. Lewis argues that the Board rejected the contention because he did not supply specific information on the conditions around Limerick.
This was only part of the reason. for rejecting I-50.
The principal reason concerned the challenge to the regulations. Mr. Lewis I
postulates a spent fuel or other radioactive shipment accident on major evacuation routes during an emergency. This may or may not be related to the original contention but to assume a spent fuel transportation accid.ent during a separate nuclear plant emergency is nat reasonable and too specul at ive.
In any event, Mr. Lewis has failed to provide any new significant information which was not considered previously; the motion for reconsideration is denied.
C.
Inadequate Cooling Water in Case of SDV Pipe Break (I-57).
I-57 alleges insufficient water inventory for cooling purposes in the case of an SDV pipe break.
Mr. Lewis argues that the scenario upon which he based the contention was mischaracterized.
A rereading of Mr. Lewis' contention and basis along with the petition for reconsideration does not indicate anything not considered in denying the contention.
The contention is without basis and the petition for reconsideration is denied.
. D.
Spent Fuel Truck Driver Training (IV-1).
Intervenor Lewis reiterates that this contention is not an attack on the regulations but that the training described in NUREG-0645 is not adequate to meet the regulation. He provides no basis for the allegation other than that already considered in the SPC0 (page 141).
Petition for reconsideration is denied.
E.
Operator Staffing and Testing (IV-2).
This contention regarding the number and testing of qualified operators was denied at 142-43 of the SPC0. The denial was without prejudice to the raising of contentions in the future if adequate basis exists af ter the required filing of information by Applicant and Staff regarding operator staffing and testing.
Mr. Lewis seeks clarification of whether he may pursue informal discovery on this contention now, stating without explanation that otherwise his rights will be prejudiced.
Discovery is not permitted on a denied contention.
There will be no prejudice to Mr. Lewis since the Board has required the future filing of information as described which may provide a basis for contentions, without any need for discovery requests.
e d AWPP A.
Effect of Cooling Tower Plume on Aircraf t (V-4).
V-4 as originally stated by Intervenor AWPP concerns improper evaluation of temperature data resulting in inadequate study of the potential for air crashes due to cooling tower turbulence, changes of Visual Flight Rule conditions and carburetor icing potential.
The Board accepted only that part of the contention dealing with carburetor icing of aircraft.
Intervenor argues that there will be, at times, changes in flying conditions that will deny AWPP's representative, as a pilot, the freedom to fly.
Intervenor states that Applicant has made 'no studies,that show there will be no dangerous effect because of alteration of VFR conditions resulting from the Limerick vapor discharge.
Intervenor however fails to provide any basis for the allegation that VFR conditions would be appreciably modified, if at all and, as discussed at the prehearing conference, failed to provide a single example of air traffic problems associated with cooling towers.
The petition for reconsideration is denied.
B.
Radionuclide Releases (V-5).
V-5 concerns the health effects caused by releases of radionuclides.
Intervenor AWPP provides much the same argument as presented at the
. prehearing conference. No additional information is provided.
We find no basis for reconsideration of this contention.
Staff The Staff seeks reconsideration by the Board of the Board's plan to address contentions concerning the supplementary cooling water system prior to construction of the Point Pleasant diversion.
In addition, the Staff seeks an indication that the Board lacks authority to stay construction of the diversion.$
Should the Board accept both the Staff's arguments, it would appe.ar that the Board would be forced to wait to hear these issues, quite possibly until construction is completed and certain actions which might minimize environmental harm are no longer feasible. This approach would appear to violate at least the spirit of NEPA, as set forth in connection with our discussion of the Applicant's objections, supra.
The Appeal Board, addressing a situation in which at the construction permit stage an applicant sought to delay completion of environmental review of a plant while allowing construction to continue, stated:
The more that is expended, the less likely it is that, on account of environmental considerations, either the cost-benefit balance
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This issue is discussed in connection with the Applicant's motion and will not be readdressed here.
. will be tipped against the plant or potential alternatives will renain feasible.
In essence the applicant is seeking to defer decision on the wisdom of completing the facility while continuing the construction activity that could tilt the decision in its favor.
There is a saying for this -- having your cake and eating it too.
Only the most extraordinary circumstances would justify our requiring a party to stand by while another is satiated at its expense.
Consumer's Power Co. (Midland Plant, Units 1 and 2), ALAB-395, 5 NRC 772, 779 (1977).
The Staff, like an applicant, should not be allowed to craate such a situation.
We proposed hearing these issues before construction begins to avoid just such a situation.
Having considered the Staff's objections to our proposal, we reiterate our intention to follow that schedule.
In support of its position that the Board ought not to schedule hearings on these issues to precede the construction date, the Staff raises the issue of possible preclusions created by the Delaware River Basin Compact and by 511(c)(2) of the Clean Water Act (CWA), 33 U.S.C.
1371(c)(2), as implemented by the Second Memorandum of Understanding and Regarding Implementation of Certain NRC and EPA Responsibilities. 40 Fed.
Reg. 60115 (December 31,1975). The Staff argues that the preclusion in the Compact is broader that just allocation issues.
However, DRBC's responsibility appears centered on allocation, and the clause is only designed to protect that responsibility.
See SPC0 at 70-71. Moreover, at the construction permit stage both the Licensing Board and the Appeal Board considered the matters the Staff now wishes to see covered by the
. preclusion. We have seen nothing to convince us both Boards were wrong.
The Compact preclusion applies only to allocation issues.
The Staff raises, for the first time, the possibility that the CWA and the Memorandum of Understanding may also preclude NRC from reaching an independent conclusion on some of these issues. The Staff points out that both the Pennsylvania Department of Environmental Resources (DER) and the Corps of Engineers may take certain actions which could bring into effect the 511(c)(2) preclusion.
If the DER and the Corps do ac't, we will consider the effect of the preclusion.
However, it is not certain that they will act in such a way that the preclusion will affect our cons iderat ions. Nor do we find that we should wait for them to act strice to wait would create the danger discussed previously that our review couldbecomemeaningless.O The Staff also points to 10 CFR 51.52 as a reason to delay the hearings. This regulation provides that the Staff will not present a position on NEPA issues until the Staff's final environmental impact statement is available. We cannot force the Staff to act quickly, but we have pointed out the advantages of early action. We note that we are at present seeking only an evaluation of particular impacts, not a statement l
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The Staff also indicates, in apparent contradiction of its desire l
to wait for decisions from the DER and the Corps, that the operating licenses can be issued without action having been taken by the DER or i
the Corps (except for issuance of a 401 certification). Of course, the information required for the NEPA balance must be supplied from somewhere before the 1icenses are issued.
i
. of the ultimate cost / benefit conclusion. The Appeal Board once approved of early hearings on particular identifiable costs although the ultimate NEPA balance would not be ascertainable for some time.
See Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2),
ALAB-277, 1 NRC 539, 546-47 (1975).
If, however, the Staff maintains that it cannot be prepared for a hearing on these issues prior to the commencement of construction, we will be obliged to consider other options which allow for meaningful NEPA review of these issues.
Other Matters A.
Contention V-16.
In the SPC0, the Board deferred ruling on contention V-16 until it' received information on whether the federal representative to DRBC had concurred in the decision to allocate water to Limerick such that the preclusion in section 15.1(s) of the Delaware River Basin Compact would be applicable.
SPC0 at 95-96. The Applicant has supplied the affidavit of 1
Gerald M. Hansler, Executive Director of the DRBC, to the effect that the federal representative concurred in all docket decisions leading to final
(
l approval of the Point Pleasant diversion, save one, and that one abstention was followed by further concurences. Therefore, in reliance on Mr. Hansler's affidavit, the Board finds it is precluded from considering matters concerning the allocation of Delaware River water for cooling i
i
.. L imer ick.
This contention, which we have found concerns allocation questions, is, therefore, denied.
In consideration of the above, it is ORDERED:
(1) Contention V-14 is stricken from among the admitted contentions for this proceeding; (2)
Contention V-16 is not admitted in this proceeding; (3) the Board reaffirms its rulings with regard to other matters for the reasons given and with the clarifications provided in this order.
ATOMIC SAFETY AND LICENSING BOARD Lt/W Mu f
LdWrence Brenner, Chairman ADMINISTRATIVE JUDGE C
Dr. R ic7Fdrd F. Co le ADMINISTRATIVE JUDGE Yst h 6L4 mQ.
h Dr. Peter A. Morris v
(F "
ADMINISTRATIVE JUDGE Bethesda, Maryland July 14, 1982
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