ML20058F854

Response to Applicant 820726 Motion to Enforce Hearing Schedule & NRDC 820728 Motion to Reschedule hearings.LWA-1 Hearings Should Continue Per Schedule in 820211 Order for All Parties Except Nrc.Certificate of Svc Encl

ML20058F854
Person / Time
Site:	Clinch River
Issue date:	07/30/1982
From:	Bradley Jones NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8208030095
Download: ML20058F854 (11)

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i 07/30/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of UNITEDSTATESDEPARTMENTOFENERGY) Docket No. 50-537 PROJECT MANAGEMENT CORPORATION )

TENNESSEE VALLEY AUTHORITY (Clinch River Breeder Reactor )

Plant) )

NRC STAFF RESPONSE T0 " APPLICANTS' MOTION TO ENFORCE THE HEARING SCHEDULE" AND NRDC'S

" MOTION TO RESCHEDULE HEARINGS" I. INTRODUCTION On July 26, 1982 the NRC Staff received " Applicants' Motion to Enforce the Hearing Schedule". On July 28, 1982 the Staff received NRDC's (hereinafter Intervenors) " Motion to Reschedule Hearings." The Applicants' Motion requested that the present LWA-1 hearing schedule l be followed as set out in the Licensing Board's February 11, 1982 Order,

{ with the exception of the Staff's presentation which would proceed as scheduled only on the issues in Contentions 1, 2, 3, 5, 7, 8 and 11.

NRDC's Motion argued, as a result of the decision to recirculate the FES Supplement for coments, that no part of the hearing could take place under the Comission's, regulations and that a new hearing schedule must be developed. As explained below, the Staff disagrees with Inter-venors' position that a hearing cannot take place until the FES is final.

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Nevertheless, the Staff takes a somewhat more restricted view than the '

Applicants as to the issues which the Staff may address prior to the finalization of the FES. For the reasons detailed below, the Staff believes that the LWA-1 hearings for the Clinch River Breeder Reactor should continue on the schedule as given in the February 11, 1982 Order for all parties except the Staff. The Staff should proceed on the present schedule for Contentions 1, 2, 3, 5(d), 7(a) and 7(d). For the remaining contentions, the Staff's presentation must await the finaliza-tion of the FES Supplement following the coment period.

II. DISCUSSION A. Hearings Prior to Issuance of the FES The Staff believes that the regulations do not bar proceeding with the LWA-1 hearing prior to the issuance of the FES Supplement for the Clinch River Breeder Reactor. The Staff will not reiterate all the arguments made by Applicants in their Motion to enforce the schedule.,

The Staff does agree with the Applicants' intepretation of the legal standards on this issue, although we disagree as to the application of thosestandardstothecontentionsadmittedinthisproceeding.1/

1/ The Staff draws to the Board's attention the recent decision in Philadel phia Electric Company (Limerick Generating Station, Units 1 and 2), Memorandum and Order issued by the Licensing Board on July 14, 1982. In that proceeding the Staff moved for 5 reconsideration of the Board's determination to proceed on an expedited basis on certain specific environmental issues. One of the grounds for the Sta.ff's motion was the fact that the DES was not scheduled to issued for many months. The Board denied the Staff's motion. The circumstances in that case are quite different than those in Clinch River. In Clinch River the only issues on which the Staff proposes to proceed are not dependent on the FES Supplement, but can be litigated on the basis of site suitability or

project timing.

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The arguments of the Intervenors in their July 27, 1982 Motion to the effect that the LWA-1 hearing cannot proceed do not withstand closer scrutiny. Intervenors argue that, because 10 C.F.R. 5 50.10(e)(2) references 10 C.F.R. 6 51.52(b) and (c), but does not reference 10 C.F.R. 5 51.52(a), there is an implication that 10 C.F.R. Q 51.52(a) was not to apply to the LWA-1 portion of 10 C.F.R. 6 50.10(e). An examination of why 9 51.52(b) and (c) are referenced in 10 C.F.R. S 50.10(e) reveals that such an implication would be an incorrect assumption. 10 C.F.R. 5 50.10(e)(2) states in part:

(2) Such an authorization shall be granted only after the presiding officer in the proceeding on the construction permit application (1) has made all findings requires by i 51.52(b) and (c) of this chapter to be made prior to the issuance of the construction permit for the facility.

When 5 51.52 is examined it is evident why only subsection (b) and (c) are referenced in the above-quoted section. The above section is referr-ing to findings which must be made by the presiding officer prior to issuance of an LWA-1. Only subsections (b) and (c) of 5 51.52 contain findings which need to be made. 10 C.F.R. 5 51,52(a) contains no findings and it is, therefore, ouite appropriate that 6 50.10(e)(2) does not reference that subsection when discussing required findings.

Intervenors' argument as to the application of 10 C.F.R. 5 2.761a likewise does not withstand closer scrutiny. That section states in part:

[T]hepresidingofficershall,unlessthepartiesagree otherwise, or the rights of any party would be pre,iudiced thereb 50.10(y, commence.a hearing on issues covered by 9e)(2)(ii) and Part 51 as issuance by the Staff of its final environmental impact statement, but not later than 30 days after issuance of such statement.

The above section could be interpreted in either of two ways. First, as Intervenors argue, it might be interpreted as being a prohibition on con-4 ducting a proceeding prior to the issuance of the FES. Second, however, it might be interpreted as providing a deadline by which hearings must be initiated. That is, once you have an FES you must begin a hearing as soon as practicable but not later than 30 days after the issuance of the FES. The question of which interpretation is correct is not a difficult one to resolve. It is an elemental principle of statutory interpretation that statutes should be interpreted so as to not be repugnant to each other. Montgomery Charter Service, Inc. v. Washington Metropolitan Area Transit Commission, 325 F.2d 230 (C.A.D.C., 1963);

Spencer County v. United States Environmental Protection Agency, 600 F.2d 844 (C.A.D.C., 1979). Under the Intervenors' interpretation of 10 C.F.R. 6 2.761a, that section and 6 51.52(a) would be inconsistent with each other, because 5 51.52 would preclude such hearings from ever occurring.

Under the second interpretation of 6 2.761a, those two provisions would be consistent. While 10 C.F.R. 6 51.52(a) would provide procedures for hearings prior to issuance of an FES,10 C.F.R. Q 2.761a would provide a deadline by which hearings must begin, but would not preclude earlier hearings. Since the second interpretation avoids creating an inconsistency in the regulation, it is submitted that it is the appropriate interpretation of that provision.

For the reasons discussed above the Staff believes that the LWA-1 hearings on the Clinch River. Breeder Reactor may proceed despite the lack of finality in the FES Supplement issued for that plant. There remains,

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'however, the question of what issues the Staff should proceed upon in l

view of 6 51.52(a) and the circumstances of this case.

B. Contentions on Which the Hearing May Proceed Contentions 1(a), 2(a)-(c) and (f)-(h) and 3(b)-(d) - These conten-tions all deal with the question of whether Core Disruptive Accidents (CDA's) need be included as Design Basis Accidents (DBA's) for the Clinch River Breeder Reactor (CRBR). The Intervenors allege that not including CDA's in the DBA's results in the calculation of an improper source term for determining site suitability. These questions are addressed fully in the Site Suitability Report (SSR) and can be litigated by all parties independent of the FES Supplement becoming final. The Staff does not find anywhere a prohibition of the litigation of a site suitability issue, including Staff participation and presentation of its position,

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simply because the issue may also be addressed in the FES. The Site Suitability Report is not dependent on the FES for its validity. The Staff believes that the hearing should proceed on the issues in Contentions 1(a),2(a)-(c)and(f)-(h),and3(b)-(d),ontheschedule established in the February 11, 1982 Prehearing Conference Order.

l Contention 2(e) - This contention addresses the adequacy of the guideline values for radiation doses from postulated CRBR releases. This issue is addressed in the SSR and can be litigated independently of the FES Supplement. The Staff believes that all parties should proceed to j litigate this contention on the schedule set forth in the February.11, i 1982 Prehearing Conference Order.

Contention 5(b) - This contention addresses whether the possible evacuation of facilities near the CRBR site presents unacceptable risks to national security and the national energy supply. The resolution of the issue is not dependent on any analysis in the FES Supplement. The Staff, therefore, believes that all parties should proceed to litigate this contention on the schedule established in the February 11, 1982 Prehearing Conference Order. '

Contention 7(a) and (b) - This contention deals with the considera-tion of alternative designs in the FES and the question of the ability of CRBR to meet the timing objectives of the overall Breeder Reactor Program. As a result of what the Staff has learned with respect to the ,

Intervenors position during discovery, it appears that the alternatives with which Intervenors are concerned relate to alternative safety systems or components and do not raise environmental issues. Rather, they raise safety issues more appropriately addressed when considering the SER at the CP stage. The Staff simply has not been able to identify any environmental issues associated with the suggested alternative safety systems. With respect to the timing issue, the Staff does not believe that comments would affect the question of the ability of CRBR to meet the timing objectives of the Breeder Reactor Program. The Comission has already indicated that thr: timing objective, given in the Programatic Environmental Impact Statement for the Breeder Reactor Program, is to be taken as a given. United St,ates Energy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67,

1 92 (1976). With the timing objective already established, the Staff believes that all parties may proceed on the question of whether the CRBR, as planned, will meet that objective.

The above contentions are those which the Staff believes can be litigated on the Board's February 11, 1982 schedule with participation by I

all parties. The Staff believes, with respect to the remaining conten-tions which are briefly outlined below, that participation by the Staff 1

should await the finalization of the FES Supplement. These remaining l issues are such that the Staff position may be subject to some modifica-tion as a result of the commenting process through which the FES Supplement is to be subjected. Nevertheless, the Staff believes that the remaining parties should present their case on these issues as allowed under 10 C.F.R. I 51.52(a). If any changes do occur to the FES Supplement it can reasonably be expected that all parties would be given an opportunity to address how those changes affect prior testimony.

Thus, proceeding with the issues on which the Staff's presentation must wait would be the most expeditious manner to litigate the admitted contentions.

Those contentions on which the Staff believes its participation must await the finalization of the FES Supplement, but on which all other parties may proceed, are:

l Contention 4 - This coMention addresses the adequacy of the FES analysis of the environmental effects of the safeguards program at CRBR.

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Contention 5(a) - This contention addresses the question of alterna-tive sites and whether they are preferable from a meterological stand-point to the present site.

Contention 6 - This contention addresses the adequacy of the fuel cycle analysis contained in the environmental analysis.

Contention 7(c) - This contention addresses whether specific alternative sites were environmentally preferrable to the CRBR site.

Contention 8 - This contention deals with decommissioning.

Contention 11 - This contention addresses the adequacy of the Staff's analysis of health and safet/ consequences to the public.

III. CONCLUSION The Staff believes that the Applicants and Intervenors should proceed to present their cases on all issues on the schedule established on February 11, 1982. On Contentions 1, 2, 3, 5(b) and 7(a) and (b), the Staff can and should present its case on the schedule established in the February 11, 1982 Prehearing Conference Order. With respect to the remaining contentions, the presentation of the Staff's case should await

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• the finalization of the FES Supplement at the conclusion of the commenting period.

Respectfully submitted, i'

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./ y. r Bradley W. Jones /

Counsel for NRC Staff i

l Dated at Bethesda, Maryland 4

this 30th day of July, 1982  ;

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COM'4ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) -

) I UNITED STATES DEPARTMENT OF ENERGY ) Docket No. 50-537 PROJECT MANAGEMENT CORPORATION )

TENNESSEE VALLEY AUTHORIlf (Clinch River Breeder Reactor )

Plant) )

CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE T0 " APPLICANTS' MOTION TO .

ENFORCE THE HEARING SCHEDULE" AND NRDC'S " MOTION TO RESCHEDULE HEARINGS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 30th day of July, 1982.

Marshall Miller, Esq. , Chairman (2) William M. Leech, Jr., Attorney General Administrative Judge William B. Hubbard, Chief Deputy Atomic Safety and Licensing Board Attorney General U.S. Nuclear Regulatory Commission Lee Breckenridge, Assistant Attorney Washington, D.C. 20555

• General 450 James Robertson Parkway Mr. Gustave A. Linenberger Nashville, Tennessee 37219 Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Dr. Cadet H. Hand, Jr. , Director William E. Lantrip, Esq.

Administrative Judge City Attorney Bodega Marine Laboratory Municipal Building University of California P.O. Box 1 P.O. Box 247 Oak Ridge, Tennessee 37830 Bodega Bay, California 94923 Lawson McGhee Public Library Alan Rosenthal, Esq., Chairman 500 West Church Street Atomic Safety and Licensing Appeal Knoxville, Tennessee 37902 Board Panel U.S. Nuclear Regulatory Commission Warren E. Bergholz, Jr.

Washington, D.C. 20555

• Leon Silverstrom U.S. Department of Energy j Dr. John H. Buck 1000 Independence Ave. , S.W. ~

Atomic Safety and Licensing Appeal Room 6-B-256 Board Panel Washington, D.C. 20585 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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George L. Edgar, Esq. . Mr. Joe H.. Walker Frank K. Peterson, Esq. 401 Roane Street Gregg A. Day, Esq. Harriman, Tennessee 37830 Thomas A. Schmutz, Esq.

Irvin A. Shapell, Esq.

Morgan, Lewis & Bockius 1800 M Street, N.W.

Washington, D.C. 20036 Project Management Corporation P.O. Box U Oak Ridge, Tennessee 37830 Barbara A. Finamore \

Ellyn R. Weiss Dr. Thomas.B. Cochran 54 Jacob Scherr Natural Resources Defense Council, Inc.

1725 Eye Street, N.W. , Suite 600 Washington, D.C. 20006 Manager of Power Tennessee Valley Authority 819 Power Building Chattanooga, Tennessee 37401 Director Clinch River Breeder Reactor Plant Project U.S. Department of Energy Washington, D.C. 20585 Ruthanne G. Miller, Esq.

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission

• Washington, DC 20555*

Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Connission Washington, D.C. 20555

• Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission /. '

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Washington, D.C. 20555 * , - h- , f . y

' , [. M'i>o

. Jones /

"Bradley[forNRCS)fff Counsel

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