ML20058D504
| ML20058D504 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 07/26/1982 |
| From: | Bergholz W, Edgar G ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20058D505 | List: |
| References | |
| NUDOCS 8207270160 | |
| Download: ML20058D504 (19) | |
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~'82 JL 26 P2SS.S UNITED STATES OF AMERICA J
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NUCLEAR REGULATORY COMMISSION" ~'nFFfCE OF SECR 10CKETING & SERWCE BRANCH o.p.
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In the Matter of
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UNITED STATIS DEPARTMENT OF ENERGY
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PROJECT MANAGEMENT CORPORATION
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Docket No. 50-537
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TENNESSEE VALLEY AUTHORITY
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(Clinch River Breeder Reactor Plant)
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APPLICANTS' MOTION TO ENFORCE THE HEARING SCHEDULE The United States Department of Energy and Project Management Corporation, acting for themselves and on behalf of the Tennessee Valley Authority (the Applicants),
hereby file this Motion to Enforce the Hearing Schedule previously established by the Atomic Safety and Licensing Board (the Board) by Order dated February 11, 1982.
The Applicants submit that the schedule should be enforced, and the parties must proceed to hearings on schedule, under the following conditions and for the following reasons:
1.
The schedule established by the Board embodies the Commission's policy direction to conduct the proceedings consistent with the Commission's statutory and regulatory responsibilities and with-out delay.
This schedule contemplated:
- 1) comple-tion of final rulings on all prior and new conten-tions, updating of prior discovery, and new discov-ery by June 18, 1982, and 2) issuance of the Staff's milestone documents (Site Suitability Report (SSR) o 8207270160 820726
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. and Environmental Update) by July 9, 1982.
There-after, the parties were obligated to immediately confer and attempt to agree on any discovery and revised contentions based upon new matters first l
raised in the milestone documents, and absent agree-ment, meet with the Board one week later to obtain rulings concerning contentions / discovery on such new matters.
i 2.
Up to this point in the schedule the parties have substantially met their obligations to proceed expeditiously.
Prior and new contentions have been ruled upon and discovery is complete.
The SSR was issued on June 11, 1982.
The environmental update was issued on July 19, 1982, ten days after the July 9, 1982 outside date in the schedule for the issuance of milestone documents.
Both applicants and staff contacted NRDC during the week of July 19, 1982 in an attempt to agree on contentions / discovery based on new matters first raised in the environmental update.
NRDC took the positions that, in light of the staff's decision to issue the environ-mental update as a Draft Supplement and recirculate it for public comment: a) the schedule has been totally invalidated, b) evidentiary hearings cannot proceed on any issues until a Final Supplement is issued, c) there is no purpose to be served in conferring about new matter contentions and discovery, and d) NRDC intends to file a request with the Board for extension of the schedule.
NRDC also indicated that they would attempt to arrange a conference call on July 27, 1982 to discuss the schedule with the Board.
3.
Applicants submit that the schedule for proceeding to hearings should be enforced.
Well-established NRC case law contemplates that, in spite of recirculation of the Draft Supplement, the Applicants and Intervenors should proceed to a first phase of hearings and present all of l
their evidence on all admitted contentions.
In addition, the NRC staff can and should present its evidence on all contentions involving site suitability issues, and on certain specific environmental issues discussed below.
Following this, and completion of the Final Supplement, the parties should proceed, with a minimum of discontinuity, to a second phase of LWA-1 hearings, wherein the staff would present its evidence on those environmental issues for which it did not present evidence in the first phase.
For the foregoing reasons and those discussed in detail below, enforcement of the original schedule, adjusted to
" bifurcate" the LWA-1 hearings as summarized above, will:
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1) advance the policies and rationale behind the schedule, 1) preserve the efforts of all parties to date, and 3) achieve the result of expeditious conduct of the proceedings consis-tent with the Commission's statutory and regulatory respon-sibilities.
I.
THE BOARD'S FEBRUARY 11, 1982 SCHEDULE ORDER.
The underlying policy basis for the Board's February 11, 1982 Prehearing Conference Order establishing the schedule (hereinafter " Schedule Order") is the Commission's direction that "[t]he Congress has directed that the Clinch River Breeder Reactor be built in a timely and expeditious manner as long as the public health and safety is adequately protected," and that
"[t]he NRC will conduct a licensing review consistent with the statutory-regulatory responsibilities and without delay" TR: 1130.
In that spirit, the Board made crystal clear its intentions that: a) all parties would be required to work towards getting matters ready for trial (TR:
1132); b) the schedule was success-oriented--it would not be established on the premise that mile-stones would not be met (TR:
1130-31); c) it would trade-off discovery and accept additional trial time in order to arrive at a hearing which is reasonable and expeditious (TR:
1188); d) it would require the parties to compress activities after issuance of milestone documents by immediately conferring and seeking bench rulings on areas of disagreement as to contentions /
discovery on new matters first raised in the milestone documents
(TR:
1103-6).
t The Board's Order established an explicit mechanism for assuring that once the milestone documents were issued, any revisions to contentions or discovery necessitated by new matters first raised in a milestone document and upon a reasonable showing, could be accommodated.
Schedule Order at 2-3; TR:
1103-6.
In particular, a one week interval after the milestone document was established in which the parties would immediately confer, attempt to agree, and seek rulings from the Board so that the parties could proceed to meet the next three critical milestones:
- 1) completion of discovery, if any, by August 6, 1982; 2) filing of written testimony by August 13, 1982; and 3) commencement of evidentiary hearings on August 24, 1982.
This, of course, all presupposed that NRDC would expend their best efforts to provide a reasonable showing of need for new matter contentions / discovery, to meaningfully confer in an attempt to agree, and to seek resolution from the Board, toward 1
the ultimate objective of commencing hearings.
It seems, however, that NRDC has lost sight of the ultimate objective of the schedule land that the Board must now act to enforce the schedule and assure that this objective is met.
II.
THE STATUS OF THE SCHEDULE.
Up to this point in time, all major milestones in the sched-ule have been substantially met.
The Board has made final rulings on prior and new contentions.
See Board Orders dated April 14, 1982 and April 22, 1982.
The June 18, 1982 deadline
- for completion of discovery has been met.
The Board's schedule contemplated issuance of the milestone documents or or before July 9, 1982.
The Staff issued the Site Suitability Report (SSR) on June 11, 1982, and the environ-mental update on July 19, 1982, only ten days after the out-side date for milestone documents in the schedule.
On July 13, 1982, the ACRS issued a letter finding that the CRBRP site is suitable.
Lastly, on July 19, 1982, the Board issued a Notice of Hearing setting commencement of evidentiary hearings in Oak Ridge, Tennessee on August 24, 1982.
Given these events, and the policies and intent under-lying the Board's Schedule Order, the parties were clearly obligated to immediately confer on new matter contentions /
discovery, if any, and within one week obtain resolution from the Board.
This in turn would enable the parties to proceed on schedule to commencement of hearings.
Both Applicants and the NRC Staff initiated efforts to confer with NRDC during the week of July 19, 1982.1/ These efforts were in vain, because NRDC has taken the position that, in light of the NRC Staff's decision to issue the environmental update as a Draft Supplement and recirculate it for public l
comment: a) the Schedule Order has been invalidated; b) evidentiary hearings could not proceed on any issues until a Final Supplement is issued; c) there was no purpose to be served in conferring
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See letter from Bradley Jones, NRC, to Barbara Finamore, NRUC, dated July 23, 1982 (attached).
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about new matter contentions and discovery; and d) they intended to file a request with the Board for extension of the schedule.
The Applicants believe that NRDC's positions are gr'ounded upon a misconception of the objectives of the hearing schedule, and do not give any recognition to well-established NRC case law which is applicable in the event of recirculation.
In establishing the schedule, the Board recognized that recirculation could affect the schedule TR:
1011; 1103-4; 1112-3.
By the same token, in February of 1982, the Board could not possibly foresee the particular circumstances in which recirculation might be undertaken, and whether this would affect the issues for trial in a fundamental way.
The Board could only indicate a willingness to evaluate the circumstances when they arose, and not presuppcse invalidation of the schedule TR:
1132.
Since NRDC's positions presume, incorrectly, that the schedule cannot be preserved and that hearings cannot commence on any issues until the Final Supplement is issued, they have simply refused to trigger the seven-day cicle of conferring on Board rulings which will, in fact, maintain the vitality of the schedule.
In those circumstances, it is appropriate for the Board to enforce the spirit and intent of the schedule, and direct the course of the proceedings toward an August 24, 1982 commencement hearings.
III.
APPLICANTS' RECOMMENDATIONS FOR MAINTAINING THE SCHEDULE In light of present circumstances, the Board's Schedule Order can readily be adapted to achieve the objective of expeditious conduct of the hearings consistent with the Com-mission's statutory and regulatory responsibilities.
The Schedule Order has been affected in two respects:
- 1) the last milestone document was issued ten days after the July 9, 1982 date established by the Schedule Order; and 2) the Staff has decided to issue the environmental update as a Draft Supplement and recirculate it for public comment.
As will be shown below, however, neither circumstance invalidates the schedule, and neither presents a bar to timely commencement of hearings.
As for the ten day delay, there are ample means to main-tain the schedule, provided the parties exercise their best efforts.
For example, the Staff's July 23, 1982 letter to NRDC (attached) reflects a willingness to expedite discovery responses so that any relevant substantive information is provided to NRDC within the August 6, 1982 deadline for com-pletion of new matter discovery, if any.
Extension of the schedule by several days is also possible, but obviously unnecessary in light of the NRC Staff's willingness to adopt special arrangements.
Given the massive discovery already conducted by NRDC, and the corresponding burden assumed by the Staff and Applicants in responding, it seems inconceivable that there are substantial new matters first raised in the milestone document which requires discovery.
In any evm.s, the more telling point is that it is NRDC's burden to come forward and make a reasonable showing of need.
Tr. 1103-4; 1105-6.
Having failed to do so, and having frozen their position to avoid moving forward toward commencement of hearings, they must face up to the consequences.
NRDC has been on notice since February 10, 1982 of the Board's resolve to proceed expeditiously and the need to compress activities after issuance of milestone documents.
They should not, at this juncture, gain an advantage from their frozen position, and obtain a delay in commencing hearings.
As for the Staff's decision to issue the environmental update as a Draft Supplement and recirculate for comment, there is similarly no basis for invalidating the Schedule Order and postponing commencement of hearings.
As will be demonstrated herein, regulatory efficiency requires and well-established NRC case law supports:
- 1) Applicants and NRDC proceeding on schedule to present all of their evidence on all admitted contentions; 2) the NRC Staff proceeding on schedule to pre-sent their evidence on site suitability issues, and certain environmental issues encompassed within NRDC's contentions; and 3) following that the issuance of the Final Supplement,
.the NRC Staff proceeding to present the balance of their evidence on environmental issues encompassed within NRDC's contentions.
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It should be emphasized that there is no question that the Licensing Board may conduct evidentiary hearings on selected issues despite the fact that other issues might not be ready for consideration.
- See, e.g., Natural Resources Defense Council, Inc. v. Nuclear Regulatory Comm'n., 539 F.2d 834 (D.C. Cir. 1976); commonwealth Edison Co. (Carroll County Site), 12 NRC 13 (1980); Public Service Co. of Indiana (Marble Hill) ALAB-371, 5 NRC 409 (1977); Potomac Electric Power Co.
(Douglas Point), ALAB-277, 1 NRC 539 (1975).
Commission policy clearly indicates that "the hearing may be divided into segments to permit consideration of discrete areas.
10 C.F.R.
Part 2, App. A.
Commission policy not only permits, but encourages, early hearings on particular issues when such consideration will avoid delaying the overall licensing process.
" Fairness to all parties... and the obligation of administrative agencies to conduct their functions with efficiency and economy, re-quire that the Commission adjudication be conducted without unnecessary delay."
Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975) (quoting from 10 C.F.R. Part 2, App. A).
As the Appeal Board noted in Douglas Point, supra, 1 NRC at 544, conducting early hearings on some issues would allow early determination of potential problem areas related to issuance of a license or permit.
If problems can be cor-rected, mitigation can take place earlier in the process.
- l again resulting in time and money savings to the Applicant, the Board and the general public.
And, if further analysis is required, the Board can provide prompt direction as to the nature and scope of such analysis.
The Appeal Board in Douglas Point identified the relevant factors which should be taken into account in deciding whether hearings should be held on specific issues.
Principal among them are:
(1) the degree of likelihood that any early findings on the issue (s) would retain their validity; (2) the advantage, if any, to the public interest and to the litigants in having an early, if not necessarily conclusive, resolution of the issue (s); and (3) the extent to which the hearing of the issue (s) at an early stage would, particularly if the issue (s) were later reopened because of supervening develop-ments, occasion prejudice to one or more of the litigants.
1 NRC at 547.
Application of these principles to the cir-cumstances of these proceedings will show that the proceedings can and should commence as scheduled.
A.
The Applicants and NRDC Must Present All of Their Evidence on All Admitted Contentions In the circumstances of these proceedings, Applicants and NRDC can and should proceed to present all of their evidence
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on all admitted contentions.
Even if the NRC Staff were pre-cluded from presenting evidence concerning some environmental issues until after those issues are promulgated in a final supplement to the FES, 10 C.F.R.
S 51.52(a) provides that
"[a]ny other party to the proceeding may present its case on NEPA matters
" during that interim period.
Even though
. a final decision would not be rendered until the Staff's case on an issue has been presented, the Licensing Board would be fully warranted in "taking evidence" from the other parties on that issue.
See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-293, 2 NRC 660, 661 (1975).
Since the Board would not make findings here, but instead await a second phase of hearings for the balance of the Staff's evidence under the Douglas Point doctrine, the likelihood that any findings would become invalidated is of no concern.
In addition, however, there is scant likelihood that the analysis in the Draft Supplement relating to any of NRDC's contentions will be affected by any comments made by NRDC on the Draft Supplement.
Since NRDC has presumably responded to discovery and disclosed all of its information relevant to its conten-tions, and since it is under a continuing obligation to supplement, the Board may assume that all NRDC's relevant information to date was before the Staff when it prepared the Draft Supplement, and that the Staff's conclusions would not change in the Final Supplement.
Moreover, it is advantageous to all parties to use the time available to present their evidence at the earliest possible time.
If it happens that Phase I hearings show weaknesses in the record on any particular issue, the ensuing time between Phase I and Phase II hearings can be used to prepare rebuttal testimony.
This will produce a reduction in the total duration of hearings and an earlier resolution of issues, since rebuttal evidence would be more pointed and within the Board's control.
Tr. 1188.
No party will be prejudiced since, even in the unlikely event that comments on the Draft Supplement occasion a need to reopen the record, there will be ample time to prepare evidence during the dis-continuity between Phase I and Phase II.
The Staff expects to receive comments within 45 days of the July 30, 1982 commencement of the comment period.
This would place the receipt of comments at about September 15, 1982, and issuance of the Final Supplement at about November 1, 1982.
Surely the parties could use the period between September 15 and November 1 to review the comments, and prepare evidence, if any, for presentation at the Phase II hearings.
The Applicants submit that there are overriding reasons for requiring Applicants and NRDC to present all of their evidence, and a total absence of countervailing considerations.
In that case, the Board should order the parties to proceed on schedule.
B.
All Parties, Including the NRC Staff, Must Present All of Their Evidence on Site Suitability Issues NRDC's contentions include certain site suitability issues which relate to matters of radiological health and safety, and are not grounded in the National Environmental Policy Act.
As such, these issues are independent of and can be decoupled from the Draft Supplement.
- See, e.g.,
Douglas Point, supra (early hearing on radiological health and safety and on site suitability (Part 100) issues);
Marble Hill, supra (licensing board should consider whether some issues could be considered independently of issue on appeal); Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC 671 (1975).
Furthermore, the Commission's regulations, 10 C.F.R.
SS 2.101(a-1), 2.600-2.606, allow consideration and partial decisions on site suitability issues even before review of environmental issues required by the National Environmental Policy Act (NEPA), 42 U.S.C. 55 4321-4335 and by 10 C.F.R.
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Part 51.
All parties, including the NRC Staff, should present their evidence in regard to NRDC's Contentions 1, 2, 3 and 11(d 1) and 2)).
This will foster early ventilation of the most fundamental and important issues in these proceedings; i.e.,
- 1) whether the hypothetical core disruptive accident (HCDA) can be excluded as a Design Basis Accident (DBA) (Contentions la), 2a)-c) and 3b)-d)); 2) whether the Site Suitability Source Term (SST) envelops DBAs (Contentions 2a)-c); 2f)-h));
- 3) whether the dose guidelines recommended by the NRC' Staff'
. s for 10 C.F.R. 5 100.11a) site suitability analysis are valid (Contentions 2e) and 11d)1) and 2)); and 4) whether, given s
the site meteorology, population density, and expected con-tainment leak rate, the 10 C.F.R. 100.11 dose guidelines can be met (Contentions 2d), 2f)-h)).
These issues are addressed in the Staff's Site Suitability Report, and are at most, incidentally related to the Supplement.
Surely, all parties have an interest in presenting these matters to the Board at the earliest possible stage.
Similarly, given the nature of the issues, there is no basis to believe that com-ments on the Draft Supplement can affect the record on these issues.
Accordingly, the Board should order all parties to present their evidence on Contentions 1, 2 and 3, and 11d)l) and 2).
C.
All Parties, Including the NRC Staff, Must Present Their Evidence on Certain Environmental Issues There are any number of issues, or contentions, related in some way to environmental considerations, which were fully discussed in the FES and which have not been significantly affected by the Draft Supplement.
As the Appeal Board stated in Barnwell, supra, "nothing either in NEPA or in the Com-mission's rules... would automatically preclude the hearing of all environmental issues while the impact statement is 2/
being redone as to some."
2 NRC at 681.
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10 C.F.R. 5 51.52(a) states:
In any proceeding in which a draft environ-mental impact statement is prepared pursuant to this part, the draft environmental impact statement will be made available to the public
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Consideration of these issues on schedule would comport with Commission policy, since under Douglas Point, supra, those FES findings which are not significantly affected by the Draft Supplement are highly likely to " retain their validity."
The principal issues in this category are:
Design Alternatives (Contentions 7a) and b).
Chapter 8 of the Draft Supplement, "Need for the Proposed Facility,"
considers the role of the demonstration plant, the ability of the CRBRP to meet its objectives, and technical (design) alter-natives for the CRBRP.
The chapter remains virtually unchanged from the FES except for an update on program status for the CRBRP and other breeder programs.
Section 8.5 of the Draft Supplement states:
Additional information presented in this chapter is cumulative and does not result in significant changes in the Staff's assessment of the CRBRP's environmental impacts.
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(con't.)
at least fifteen (15) days prior to the time of any relevant hearing.
At any such hearing, the position of the Commission's staff on matters covered by this part will not be presented until l
the final environmental impact statement is i
furnished to the Environmental Protection Agency and commenting agencies and made available to the public.
Any other party to the proceeding may present its case on NEPA matters as well as on radiological health and safety matters prior tc the end of the fifteen (15) day period.
The CRBR FES was made available to the public in February, 1977.
In this case, the Staff need not wait until it has promulgated its final version of the Supplement before presenting its In position on issues not affected by the Draft Supplement.
Barnwell, supra, the Appeal Board, confronted with a similar situation, stated that "even if the FES must be so redrafted, the issues scheduled for consideration could be understood and resolved in the absence of such a discussion."
2 NRC at 680-681.
The Appeal Board left it to the Licensing Board to determine what issues, if any, should be deferred until the FES was supplemented.
. In light of this, all parties should present their evidence concerning Contentions 7a) and b) on schedule.
Site Selection (Contentions 5 and 7c).
The differences between the FES and the Draft Supplement are primarily changes in format, rather than substance.
There is only one new alternative site, and the information presented consists primarily of updated information about sites already considered. 5Y The results of the Staff analysis of alternative sites remain the same, albeit phrased somewhat differently. S/
In those circumstances there is no reason why all parties could not
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present their evidence, 5/ particularly since the Board will not make findings, the cost / benefit balance would remain open, and the opportunity is available to consider supervening matters, if any, in the Phase II hearings.
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The Yellow Creek site was added to the list of potentially Ticensable sites, Table A9.2, in the Draft Supplement.
That site, however, had also been considered and discussed by the Staff in the FES, Section 9.2.4.
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The Staff's conclusion in the FES, Section 9.2.5, is that no site within the TVA service area is " environmentally l
preferable" and therefore no site is substantially better.
In the Draft Sugplement, the Staff reiterates this conclusion, l
but also found no significant environmental benefits to be gained" from locating at another site.
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At the very least, Contention 5b), which addresses the effect of CRBRP on nearby facilities (ORNL, K-25 and Y-12),
can be considered since that is more closely related to matters of site suitability.
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Decommissioning (Contention 8).
The discussion of decom-missioning in the Draft Supplement, Section 10.2.4, revolves around information from generic studies of decommissioning PWRs and BWRs.
No new information is presented concerning specific decommissioning alternatives or costs for the CRBRP.
Furthermore, Contention 8 itself remains unchanged from 1977.
Since no new issues arise in the Draft Supplement relative to CRBRP decommissioning.and since the issue itself is a finite, straightforward matter, there is nothing to be gained by postponing discussion of decommissioning at the hearings until comments are received on the Draft Supplement.
Health Effects (Contentions lib) and c)).
Contentions lib) and c) involve analysis of the residual risks and con-sequent genetic and somatic health effects of operating CRBRP in accordance with existing NRC radiation protection standards.
Practically speaking, this translates to analyses which take the radiological doses attributable to CRBRP operation in accordance with existing standards, and calculating the expected genetic and somatic health effects attributable to those doses.
While the doses would be dependent upon the Final FES, it is logical to decouple the dose values from the health effects themselves, and proceed to litigate the issue of what multipliers are appropriate to translate doses to health effects.
This would again leave open and undisturbed the issue of the effect of the consequent health effects on the cost / benefit
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balance, and enable any supervening information to be factored into the Phase II hearings by way of Staff supplemental testimony.
If the Board adopts the approach described herein, then all parties can proceed to present evidence concerning Con-tentions 1, 2, 3, 5, 6, 8 and 11.
It would remain then for the Staff to present evidence in Phase II concerning Conten-tions 4 (safeguards) and 6 (fuel cycle).
The Applicants urge the Board to adopt this approach.
IV.
CONCLUSIONS i
The Board's Schedule Order embodied Commission policy 1
l against delay in the CRBRP licensing review.
The Schedule Order retains vitality if all parties expend their best efforts to reach the ultimate objectives of timely commence-i ment and completion of hearings.
There is no bar to, and indeed, there are overriding policy reasons for, requiring Applicants and NRDC to present all of their evidence on all Contentions on schedule, and for requiring the NRC Staff to present its evidence on site suitability issues and l
certain environmental issues.
Following that and issuance of the Final Supplement to the FES, a second phase of hearings should be convened at which the balance of the Staff's evidence, and such additional evidence as may be necessary, would be presented.
Accordingly, subj ect to the foregoing
' considerations, the Board should order the parties to proceed i
to hearing as scheduled.
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The Applicants are prepared to discuss this matter during a telephone conference call on July 27, 1982.
The undersigned counsel can be reached on that day in Oak Ridge at the CRBRP Project Office (615/576-6456).
Respectfully submitted,
/A>W Ler/
Warren E. Bergholz,/Jrf. f7 Attorney for the 17.S / Dfpartment of Energy M/
=per
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Project Management Corporation DATED:
July 26, 1982
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