ML20079J192

Objections to ASLB 821201 Order & Motion for Reconsideration or for Certification.Contentions 18 Re Emergency Diesel Generator Operation & 17 Re Corbicula Infestation Effect on Cooling Sys Should Be Admitted.Certificate of Svc Encl

ML20079J192
Person / Time
Site:	Catawba
Issue date:	12/20/1982
From:	Guild R CAROLINA ENVIRONMENTAL STUDY GROUP, GUILD, R., PALMETTO ALLIANCE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8212280132
Download: ML20079J192 (8)

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UNITED STATE OF AMERICA NUCLEAR REGULATORY COMMISSIQMcKETED U'iNRC BEFORE THE ATOMIC SAFETY LICENSING HUARD

'82 DEC 27 NO 57 In the Matter of )

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DUKE POWER C0!PANY, et al . --

) DocketiNoE50-413

) - i- 50-414 (Catawba Nuclear Station, )

Units 1 and 2) ) Deceaber 20, 1982 PALMETTO ALLIANCE AND CAROLINA ENVIR0hMENTAL STUDY GROUP OBJECTIONS TO DECEMBER 1,1982 BOARD ORDER AND 1

M0fl0N FOR RECONSIDERATION OR IN THE ALTERNATIVE FOR CERTIFICATION Pursuant to 10 CFR 2.751a(d), 2.718(i) and 2.730(f), Intervenors Palmetto Allicance and Carolina Environmental Study Group hereby file their objections to tne Board's December 1,1982, Memorandum and Order (Reflecting Decisions Made Following Second Prehearing Conference), and move for reconsideration in light of these objections or in the alternative for certification or referral of these matters for determination to the Conmission or Appeal Board, as appropriate.

latervenors seek such reconsideration, certification or referral of decisions by thi s Board reflecting improper and erroneous application of rulings by the Atoaic Safety and Licensing Appeal Board in Duke Power Company, Et. Al. (Catawba Nuclear Station, Units 1 and 2), ALAB-687 (August 19, 1982) regarding the admission of contentions for litigation in this proceeding, the protection of hearing rights conferred by Sections 189a of the Atomic Energy

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B2122801'32 821220 PDR ADOCK 05000413

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. u Act of 1954, as amended, 42 U.S.C.. 2239(a), and the compliance by the Nuclear Regulatory Commission with the provisions of the Na tional '

Environmental Policy Act of 1969, 42 U.S.C. 2201.

i In its Order of December 1, 1982, this Board applied the newly announced Appeal Board's interpretations of the Commission's Rules of Practice from ALAB-687 in vacating i ts earlier conditional aduission of intervenor contentions, in rejecting the following original contentions - Palmetto 1, 2, u

3, 4,10,18, 21, 22 and 26; CESG '), 13,16 and 17; in rejecting the following  ;

} Paluetto Alliance and CESG contentions filed promptly (pursuant to thi s Board's Order of September 1,1982) af ter publication of tne NRC Staf f's Draf t Environmental Statement (OES) for this facility's operation - DES 1, 2, 3, 4, 5, 6, 7, 8, 9,10,11,12,13,14,15, lo, la,19, 20, 21, 22, and 23; and in rejecting original intervenor contentions regarding serious accidents -

, Palmetto 5, 9, and 31 (CESG 2). Intervenors object and move for reconsideration of such rejection and revision of the Boards's Order to admit these contentions for consideration and nearing in this operating license proceeding.

Intervenors specifically request the Board admit Palmetto contention 18 on the subject of safe operation of emergency diesel generators and CESG 17 I

(Palmetto 43) concerning effects of Corpicula infestation on perfonaance of the plant's cooling system.

In its March 5,1982, Order the Board conditionally admitted Palmetto 18 i

t and CESG 17 upon the condition that they be made more specific following a round of di scovery . Interrogatories on these subjects were served on the Appl icants and Staff by intervenors, but were never answered due to the i

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- determine whether there is warrant for . a contention on the subject, i.e., whether the. ianpact statement or emergency plan is open to a claim .of insufficiency on some colorable ground.

(emphasis suppied for term " environmental impact statenent")

Id. , at pp.13 & 14.

Intervenors' OES contentions challenge the adequacy of the Nuclear Regulatory responsibilities in the Staff's >

Corriission's discharge of its NEPA i environnental impact statet.ient which concludes that grant of an operating license to the Applicants for the Catawba facilitiy is environmentally cos t-j usti fied. While the conclusion expected to be reached in this environmental analysis may be presumed by some observers of the licensing process, protection of the hearing rights of these intervenors and conpliance by NRC with its NEPA duty entitles these parties to rely on the convention that the Staff's environmental analysis is not prejudgeo and is to be i

published and available before its sufficiency is made the subject of litigation. The Appeal Board rejected as having "no merit' just such a Staff ,

argument

' that an intervenor can ascertain whether the staff has properly fulfilled its rol e in the discharge of this agency's

} responsibilities under the National Environmental Policy Act by examining the applicant's environmental report.

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• Id. , F.N.14, at p.14.

Similarly an intervenor's contention regarding the adequacy of agency analysis l

of the environmental costs of defective steam generators, corrosive gases, or aircraf t crashes can not precede the publication of that agency analysis.

This Board is simply wrong when it rules that

( A) contention with exactly the sa:ne f actual allegations might have been based on the FSAR and proferred long ago. But this contention is clearly untimely now . ..

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Order of December 1,1982, at p. 21.

To so conclude as the ground for rejection of intervenors' environmental contentions places Palmetto Allicance and Carolina Environuental Study Group in the same " classic Ca tch-22 situation" once urged upon this Board by Applicants; which this licensing Board soundly condemned, Order of March 5, 1982, at p. 6; with express approval of the Appeal Board, ALAB-687, slip op.

at p.18. A contention which challenges the analysis of the DES must be viewed ,

as " wholly dependent" on the DES if imposition of such a " catch -22 situation" is to be rejected.

Intervenors respectfully request this Board revise its Order to admit these DES conteations for hearing in this proceeding.

Al ternatively, Palmetto Alliance and CESG rcquest the Board certi fy or refer the question of in terpretation of the timeliness standard and the meaning of the term " wholly dependent" as employed in ALAB-687 for

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determination by the Appeal Board or Commission, as appropriate. The Appeal Board in ALAB-687, at slip op. p. 7 2 has al ready determined that these questions of interpretation of the Rules of Practice are " legal in character and . . . have generic implications . . . (which) have not previously been squarely addressed on an appellate level," justifying referral under guidance ,

of the Commission's Statement of Policy on Conduct of Licensing Proceedings, i

CLI-81-8 (1981) .

To apply these novel principles, as this Board interprets them, in this 1

first instance to reject these parties' environmental contentions would truly work an injustice. How can these parties be charged witn acting in on untiuely uanner under a standard only enunciated af ter the time for action had 1

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long elapsed? The aplication of these principles in rejecting these contentions affects the " basic structure of the proceeding in a pervasive or unusual raanner," and will bear on the course of many other Cornission proceeding; now or yet to be underway. Resolution of these questions through certification or referral is warranted and should be sought by this Board as surely here where the harai is to these Intervenors, as previously where the Applicants and Staff sought such relief. ALAB-687 (1982), Public Service Co.

of Indiana (Marble Hill Units 1 and 2), ALAB-405, 6 NRC 1190 (1977).

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CONCLUSION For the foregoing reasons, Intervenors Paimetto Alliance and Carolina Environmental Study Group respectfully object to the Board's Order of December 1,1982, and move' for reconsideration or in the alternative for certification or referral as herein urged.

1 December 20, 1982 Jesse L. Riley Carolina Environmental Study Group 854 Henley Place Charlotte, NC 28207

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/ m Rob %et Guild V Post Office Box 12097 Charleston, SC 29412 -

Attorney for Palmetto Alliance

UNITED STATES OF AfERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSINQlj${D USNRC-In the Matter of )

) '82 DEC 27 NO:57 DUKE POWER COMPANY, et al .~~

') Docket No. 50-413

) ,

r "ed9dI4 (Catawba Nuclear Station, ) yd s s Units 1 and 2) -

CERTIFICATE OF SERVICE I hereby certify that copies of PALMETTO ALLI ANCE AND CAROLINA ENVIRONMENTAL STUDY GROUP OBJECTIONS TO DECEMBER 1,1982 BOARD ORDER AND MOTION FOR RECONSIDERATION OR IN THE ALTERNATIVE FOR CERTIFICATION AND PAL!ETTO ALLIANCE AND CAROLINA ENVIRONMENTAL STUDY GROUP COMMENTS ON TRANSHIPMENT OF SPENT FUEL FR0ti OCONEE AND McGUIRE F0r. STORAGE AT CATAWBA in the above captioned matters, have been served upon the following by deposit in the United States mail this 20th day of December, 1982.

Jaues L. Kelley, Chainnan George E. Johnson, Esq.

Atoraic Safety and Licensing Office of the Executive Legal Board Panel Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Corraission Cormaission Washi ngton, D.C. 20555 Washington, D.C. 20555 Dr. A. Dixon Callihan William L. Porter, Esq.

Union Carbide Corporation Albert V. Carr, Jr., Esq.

P.O. Box Y Ellen T. Ruff, Esq.

Oak Ridge, Tennessee 37830 Duke Power Company P.O. Box 33189 Dr. Richard R. Foster Charlotte, North Carolina 28242 P.O. Box 4263 Sunriver, Oregon 97701 Richard P. Wilson, Esq.

Assistant Attorney General Chairuan State of South Carolina Atonic Safety and Licensing P.O. Box 11549 Board Panel Columbia, South Carolina 29211 U.S. Nuclear Regual tory Coumission Washington, D.C. 20S55 1)So3

_ t. .

Chainnan Jesse L. Riley

- Atomic Safety _ and Licensing 854 lic-lav Place Appeal Scard Charloti , North Carolina 28207 U.S. Nuclear Regulatory Comnission Scott Stucky Washington, D.C. 20555 Docketing and Service Station U.S. Nuclear Regulatory Henry A. Presler Commission Charlotte-Hecklenburg Washington, S.C. 20555 Environmental Coalition 943 lienley Place Charlotte, North Carolina 28207 J. Michael McGarry, III, Esq.

Debevoise & Libenaan 1200 Seventeenth St., N.W.

Washington, D.C. 20036 l' ,

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f . i: tz, Robert Guild Attorney for Palmetto Alliance t

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