ML20117H701
| ML20117H701 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 05/09/1985 |
| From: | Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#285-955 LBP-85-5, OL, NUDOCS 8505140384 | |
| Download: ML20117H701 (80) | |
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z, 809 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00LKETED USHRC
'BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 1gi MM 13 N029 In the Matter of )
) 0FFICE F S{Cfdt Ajj,
' CAROLINA POWER & LIGHT COMPANY ) 00C6ET HCH
-Cnd NORTH CAROLINA EASTERN- ) Docket No. 50- OL l MUNICIPAL POWER AGENCY )
~
)
(Shearon Harris Nuclear Power )
Plant)' )
L i
APPLICANTS' BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE PARTIAL INITIAL DECISION ON l ENVIRONMENTAL CONTENTIONS Thomas A. Baxter, P.C.
' John H. O'Neill, Jr., P.C.
Deborah B. Bauser SHAW, PITTMAN, POTTS &_TROWBRIDGE Richard E. Jones CAROLINA POWER & LIGHT COMPANY Counsel for Applicants May 9, 1985 I'
l 8505140384 850509 PDR ADOCK 05000400 0 PDR hSO)
7 UNITED STATES OF AMERICA i' NUCLEAR REGULATORY COMMISSION 00CKETED USNRC BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 15 MY 13 N000 In the Matter of )
0FFICE OF SECREUJV
- ) 00CKETitiG & SERVICE
! CAROLINA POWER & LIGHT COMPANY ) BRANCH cnd NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
APPLICANTS' BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE PARTIAL INITIAL DECISION ON ENVIRONMENTAL CONTENTIONS Thomas A. Baxter,-P.C.
John H. O'Neill, Jr., P.C.
Deborah B. Bauser SHAW, PITTMAN, POTTS & TROWBRIDGE Richard E. Jones CAROLINA POWER & LIGHT COMPANY Counsel for Applicants May 9, 1985
TABLE OF CONTENTS Page TABLE OF AUTHORITIES......................................... 1i1 COUNTERSTATEMENT OF THE CASE................................... 1 ARGUMENT....................................................... 4 ,
I. The Licensing Correctly Decided Joint Contentions II(c) and II(e) and Eddleman Contention 8F(1) and Found Adequate the NRC Staff's NEPA Analysis on the Basis of the Overwhelming Weight of the Evidentiary Record. . . . . . . . . . . . . 4 A. Introduction.................................... 4 B. The Standard of Review.......................... 5 C. The Agency's NEPA Responsibilities.............. 6 D. Joint Contention II(e): Fly Ash................ 12 E. Joint Contention II(c): Duration of Radiological Dose Calculations................. 17 F. Eddleman Contention 8F(1): Coal Particulate Health Effects..................... 21 G. Conclusion..................................... 30 II. The Licensing Board did not Err in its Rulings Rejecting as Inadmissible Proposed Contentions CCNC 16 through 18, Eddleman 2, 12, 15, 22(a) and (b), and 82............................ 30 A. Introduction................................... 30 B. CCNC 16 through 18............................. 32 C. Eddleman 2..................................... 34 D. Eddleman~12.................................... 36 E. Eddleman 82.................................... 38
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F. Eddleman 15, 22(a) and (b)..................... 41
-III. The Licensing Board Correctly Denied Intervenor Eddleman's Section 2.758 Petition to Waive
, the Need for Power-Rule in this Proceeding............... 46 A. Introduction................................... 46 B. The Licensing Board Decision................... 49 C. The Appeal..................................... 52 IV. The Licensing Board did not Err in its Ruling Rejecting as Inadmissible Proposed Contentions on the Transportation of
' Spent Fuel to the Shearon Harris Facility................ 57 A. Description of the Record Below................ 57 B. Background..................................... 59 C. The Decision and the Appeal.................... 61 CONCLUSION.................................................... 66
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TABLE OF AUTHORITIES Cnses: Page(s)
Baltimore Gas and Electric Co. v. NRDC,
-103 S.Ct. 2246.(1983).................................... 22 Boston Edison Company (Pilgrim Nuclear
-Generating Station,-Unit'2),
ALAB-479, 7__N.R.C._774;(1978)......................... 6,8,9 Calvert Cliffs Coordinating Committee,.Inc.
- v. AEC, 449 F.2d 1109-(D.C. Cir. 1971................. 16,39 LCarolina-Environmental Study Group
- v. United States,.510 F.2d 796 (D.C. Cir. 1975)......................................... 37 Carolina Power & Light Company (Shearon Harris Nuclear Power Plant), -
LBP-85-5, 21.N.R.C. (Feb. 20, 1985).............. passim LBP-78-4, "7 N. R. C. 92 (1978).......................... 32,38 LBP-82-119A, 16EN.R.C. 2069 (1982)........... 30,32,33,34,35 37,39,41,47,57 LBP-83-27A,.17 N.R.C. 971 (1983)...................... 44,45 LBP-84-7, 19 N.R.C. 432 (1984)........................... 17 LBP-84-29B, 20 N.R.C. 389 (1984)......................... 49 Memorandum and Order (Addressing Motions for Reconsideration and Clarification of the Board's Prehearing Conference Order),
(Jan. 11, 1983)..................................... 35 Memorandum and Order (Addressing Applicants'. Motion.for c z, (Codification), (Jan. 17, 1983)...................... 42 Memorandum and Order ~(Reflecting
-Decisions Made Following Second Prehearing Conference),-(March 10, 1983)............................................ 3
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g q
3 9
Memorandum and Order (Memorializing id Telephone Conference and Setting -
Forth Questions for Briefing), ,
(March 25, 1983).................................... 44 -
Memorandum and Order (Ruling on Wells Eddleman's Contentions on the Staff -
Draft Environmental Statement), f (August 18, 1983)................................... 44 Memorandum and Order (Ruling on Spent I l
Fuel Transportation Contentions -
and Miscellaneous Motions), -
(August 24, 1983).......................... 58,59,64,65 -
Order (Ruling on Various Procedural '
Questions and Eddleman 15AA),
(May 10, 1984)................................... 36,44 a Memorandum and Order (Revision of and -
Schedule for Filing Written Testimony on Eddleman Contention 9; Rulings on
- Eddleman Contentions 45 and 67), ]l (July 24, 1984)................................. ... 38 .
a Memorandum and Order (Ruling on Various =
Safety and Procedural Questions), -
(July 27, 1984)..................................... 59
],
Cleveland Electric Illuminating Company _
(Perry Nuclear Power Plant, Units 1 ]
and 2), ALAB-675, 15 N.R.C. 1105 (1982).................. 10 ii 1
Consolidated Edison Company of New York (Indian Point Station, Unit No. 2),
ALAB-188, 7 A.E.C. 323, remanded on other grounds, CLI-74-23, 7 A.E.C. 953 (1974)....................................... 6 -
Consolidated Edison Company of New York (Indian Point Station, Unit No. 3) g -
CLI-75-14, 2 N.R.C. 835 (1975)......................... 6,11 a
N Y
a ka d
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Consumers Power Company (Midland Plant, Units 1 and 2),
ALAB-123, 6 A.E.C. 331, rev'd on other grounds sub nom.,
Aeschliman v. NRC, 547 F.2d 622 (D.C.Cir. 1976), rev'd sub. nom.,
Vermont Yankee Nuclear Power Corporation v. NRDC, 435 U.S. 519 (1978).................................................... 9 CLI-74-5, 7 A.E.C. 19 (1974)............................. 56 Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
ALAB-355, 4 N.R.C. 397 (1976)........................... 5,6 LBP-83-8B, 17 N.R.C. 291 (1983)....................... 57,61 Duke Power Company (Amendment to Materials License SNM-1773 -- Transportation of Spent Fuel from Oconee Station for Storage at McGuire Nuclear Station), ALAB-651, 14 N.R.C. 307...................................... 62,63,65 LBP-80-28, 12 N.R.C. 459 (1980).......................... 62 EDF v. Corps of Engineers, 325 F. Supp. 749 (E.D. Ark. 1971)........................ 16 Gulf States Utilities Company (River Bend Station, Units 1 and 2),
ALAB-183, 7 A.E.C. 222 (1974)............................ 10 Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C. 542 (1980)......................... 30,31,33,36,37 Houston Lighting and Power Company (South Texas Project, Units 1 and 2),
LBP-83-49, 18 N.R.C. 239 (1983).......................... 56 Jicarilla Apache Tribe v. Morton, 471 F.2d 1275 (9th Cir. 1973)............................ 11 Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718 (1976)........................ 6
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_ = .
Life of'the Land v. Brinegar, s485 F.2d 460_(9th Cir. 1973),
cert. denied,'416 U.S. 961E(1974)..................... 11,37 Long Island Lighting Company (Shoreham; Nuclear Power Station),
fALAB-156,,6 A.E.C. 831'(1973)......................... 11,16
-LouisianaLPower and Light Company
-(Waterford Steam Electric Station,
' Unit 3), ALAB-732,.17 N.R.C. 1076 (1983)................................................... 22
'Pecific' Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728,-
17 N.R.C. 777 (1983)- aff'd, CLI-83-22, 18'N.R.C._1309'(1983).................................... 40 >
Philadelphia Electric Company (Peach Bottom Atomic Power: Station,
- Units 2 and 3 ) , ' ALAB-562,-
10_N.R.C.-437-(1979)..................................... 11
-Philadelphia Electric Company (Limerick Generating Station, Units 1-and.2), ALAB-765, 19 N.R.C. 645 '
.(1984), pet. for review filed, Anthony v. Philadelphia Electric Co., No. 84-3409,-(3d Cir., June 28, 1984)................,................................ 31 LBP-82-43A, 15 N.R.C. 1423 (1982).............................................. 38
~
ALAB-785, 20 N.R.C. 484 (1984)........................... 39-
' Portland General Electric Company
_(Trojan Nuclear Plant), ALAB-531, 9 N.:R.C. 263 (1979)...................................... 63 Patomac Electric Power Company (Douglas = Point Nuclear Generating Station, Units 1 and 2), ALAB-218,
. 8-A.E.C. 79 (1974)....................................... 47 Public Service' Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and'2), ALAB-459, 7 N.R.C. 179 (1978)...................................... 35
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. p,g ..g g 3 ip. g -p y . i sw -s , m.a --
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-77-8, 5 N.R.C.. 503 (1977)............................. 9 LBP-82-106, 16 N.R.C. 1649 (1982)........................ 39 Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),
j ALAB-573, 10 N.R.C. 775 (1979) remanded on other grounds, CLI-80-8, 11 N.R.C. 433 (1980)..................................... 11 Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 N.R.C. 43 (1981)................... 39 San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984)..................... 7,11,24 Union Electric Company (Callaway Plant, Unit 1), ALAB-740, 18 N.R.C. 343 (1983), reconsideration denied, ALAB-750, 18 N.R.C. 1205 (1983),
as modified, ALAB-750A, 18 N.R.C.
1218 (1983).............................................. 39 Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C.Cir. 1974)............................ 39 Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 N.R.C. 245 (1978)........................................ 10 Statutes:
Atomic Energy Act $~189(a),
42 U.S.C. $ 2239.......................................... 9 National Environmental Policy Act, 42 U.S.C. $ 4321, et seg.............................. passim Regulations:
10 C.F.R. 5 2.714(b).................................... 30,31,36 10 C.F.R. 5 2.715a............................................ 34 10 C.F.R. $ 2.751a(d)......................................... 35
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10 C.F.R. 9 2.752(c).......................................... 35
~
10 C.F.R. 6 2.758.................................... 47,50,56,65
~
10'C.F.R. 5 2.760a............................................ 10 10 C.F.R. $ 2.762(c)........................................... 2
- U) C.F.R. $ 2.785........................................... 5,10 10 C.F.R. $ 2.786.............................................. 5
' 10-C.F.R. Part 51, Table S-3............................... 21-22
.:U) C.F.R. 5 51.20, Table S-4......................... 60,64,65,66
'10 C.F.R. 5 51.21............................................. 47 10 C.F.R. 6 51.23(e).......................................... 47 10 C.F.R. 5 51.45........................................... 7,16 10 C.F.R. 9 51.53............................... 7,41,43,44,46,47 10 C.F.R. $'51.75.............................................. 7 10 C.F.R. 5 51.92.............................................. 7 10 C.F.R. 5 51.94.............................................. 7 10 C.F.R. $ 51.95........................................... 7,47 10 C.F.R. 6 51.102.......................................... 8,16 10 C.F.R. 5 51.103.......................................... 8,16 10 C.F.R. $ 51.104............................................. 9 10 C.F.R. 6 51.105........................................... 8,9 10 C.F.R. 6 51.106....................................... 9,41,43 10 C.F.R. $ 70.42(b).......................................... 60 10 C.F.R. S 7.3 37............................................. 59
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fMiscellaneous:
4f Fed. Reg. 39,940 (1981).................................... 46 47 Fed. Reg. 3898 (1982)...................................... 59
-47 Fed.' Reg. 12,940 (1982).............................. 46,47,51 49 Fed. Reg. 9352 (1984).................................... 7,24 49 Fed. Reg. 9365 (1984)..................................... 8,9 U. S. Atomic Energy Commission, Final Environmental Statement Related to the Continued Construction and
-Proposed Issuance of an Operating License for the Brunswick Steam Electric Plant, Units 1 and 2
-(Jan. 1974).............................................. 61 U. S.-Nuclear Regulatory Commission, Final Environment Statement Related .
to the Operation of H. B. Robinson Nuclear Steam Electric Plant Unit 2, NUREG-75/024 (April 1975)................................ 61
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May 9, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING AP?EAL BOARD l
) In the Matter of )
1
) -
, CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
APPLICANTS' BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE PARTIAL INITIAL DECISION ON ENVIRONMENTAL CONTENTIONS COUNTERSTATEMENT OF THE CASE On February 21, 1985, the Atomic Safety and Licensing Board's Partial Initial Decision on Environmental Contentions was served upon the parties to this proceeding. See Carolina Power &
Light Company, et al. (Shearon Harris Nuclear Power Plant),
LBP-85-5, 21 N.R.C. (Feb. 20, 1985). On March 5, 1985, the Conservation Council of North Carolina ("CCNC"), Joint Interve-nors1/ and Wells Eddleman filed a " Notice of Appeal." On April l
9, 1985, those parties filed " Appeal from Partial Initial Deci-1 sion on Environmental Contentions" (cited hereafter as 1/ The Joint Intervenors, consolidated for certain contentions only, are Mr. Eddleman, CCNC, Chapel Hill Anti-Nuclear Group Ef-fort (" CHANGE") and Kudzu Alliance.
-~
"Intervenors' Brief"). Pursuant to 10 C.F.R. 5 2.762(c),
Carolina Power & Light Company ("CP&L") and North Carolina East-ern t!unicipal Power Agency (collectively " Applicants") file this brief in reply and opposition to the appeal.
The relevant history of the proceeding has been set forth in l
l the Licensing Board's decision and need not be repeated here.2/
l As noted by the Intervenors, the Licensing Board's Partial Ini-tial Decision, in addition to resolving the environmental conten-tions which went to hearing, also made ripe for appellate review any other dispositive ruling on environmental matters. Interve-nors' Brief at 1-2; LBP-85-5, slip op. at 1, 59. Intervenors state that "[ijn preparing this Appeal, we discovered that the Licensing Board has never ruled on which of the contentions pro-pounded in the various Supplements to Petition to Intervene and l various late-filed contentions were environmental contentions."
Intervenors' Brief at 2. Intervenors proceed to express some doubt that they have identified all of the rulings subject to ap-peal at this point.
While the Licensing Board never published a list identifying which of the proposed contentions rejected at the pleading stage l
were environmental (such a ruling was neither requested nor ex-pected), the discussions in the rulings should be of some assis-tance to the Intervenors. Further, the Intervenors should know j 2/ Applicants note, for the Appeal Board's information, that fuel loading for the Shearon Harris facility is scheduled for March, 1986.
> I t
l _ _ _ _ _ _ _ _ _
whether or'not a contention they proposed challenges the agency's implementation of its statutory responsibilities under the Na- I tional Environmental Policy Act. As to contentions admitted at scme point for discovery, it has been established which are con-cidered to be " environmental." The classification of originally cdmitted contentions was a matter of stipulation among the par- l ties. See Licensing Board Memorandum and Order (Reflecting Deci-sions Made Following Second Prehearing Conference) at 6 (March 10, 1983). In proposed findings, Applicants identified four sub-ctquently admitted contentions as environmental, and no party rsplied in disagreement. See Applicants' Proposed Findings of Fcct and Conclusions of Law on Environmental Matters, July 20,
'1984, at 1 9.
Turning to the matters actually appealed, Intervenors' Brief includes argument on four questions presented. Part I challenges the decision on the three contentions which went to trial. Parts II and IV challenge rulings which rejected contentions for fail-ure to meet the requirements for admission to the proceeding.
Port III appeals from a denial of a petition to waive, in this proceeding, a Commission regulation. Applicants reply to the four arguments in the order presented by Intervenors.
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ARGUMENT I. The Licensing Board Correctly Rejected Joint Intervenors' Contentions II(c) and II(e) and Eddleman Contention 8F(1) and Found Adequate the NRC Staff's NEPA Analysis on the Basis of the overwhelming Weight of the Evidentiary Record A. Introduction In its Partial Initial Decision on Environmental Conten-tions, the Licensing Board resolved the three outstanding envi-ronmental contentions that were not withdrawn, dismissed or re-solved by the summary disposition process. These three contentions concerned the appropriate time periods for consid-ering the health effects of normal radiological releases from the Harris Plant (Joint Contention II(c)), the environmental effects of radionuclides attaching to fly ash existent in the atmosphere (Joint Contention II(e)), and the environmental effects of Table S-3 coal particulates (Eddleman Contention 8F(l)). Contrary to the Intervenors' assertion, the Licensing Board did not err in l
its determination that these contentions are without merit, and that the Final Environmental Statement (FES) for the Harris Plant satisfies the agency's responsibilities under the National Envi-ronmental Policy Act (NEPA) and the Commission's implementing regulations, 10 C.F.R. Part 51.
I
B. The Standard of Review Intervenors begin by incorrectly equating the Appeal Board's rcview with that of a court reviewing agency action. Interve-nors' Brief at 8-9. While the incorrect standard cited by Inter-vcnors would make reversal of the Licensing Board more difficult, Applicants are compelled to describe the appropriate standard for Appeal Board review.
The Appeal Board " stand [s] in the Commission's shoes" in its exercise of authority when reviewing licensing board decisions.
Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
ALAB-355, 4 N.R.C. 397, 404 (1976); 10 C.F.R. 55 2.785, 2.786.
The Appeal Board accordingly is not bound by a " substantial evi-d:nce" rule. Catawba, supra, ALBA-355, 4 N.R.C. at 404-405.
"[W]here the administrative record considered as a whole will fairly ~ sustain a result deemed preferable by the agency to the ene selected by its initial decision maker, the law is clear that the agency may substitute its judgment for its subordinate's."
Id. at 403-404 and authorities cited therein.
While the Appeal Board has the authority to reject or modify findings of a licensing board, it has stressed that it does not da so lightly. Id. at 404. Rather than evaluating the evidence cn a clean slate, the Appeal Board carefully considers the li-c nsing board's evaluation of the evidence end its disposition of the issues. Id. In the present case, Applicants submit that this consideration will result in a determination that not only
E the preponderance of the evidence supports the Licensing Board's d: cision -- the applicable standard on which a decision must be b2 sed -- but that the overwhelming weight of the evidence sup-l ports the Licensing Board's rejection of Joint Contentions II(c)
I cnd II(e) and Eddleman Contention 8F(1). Id. at 405 n.19, citing Censolidated Edison Company of New York (Indian Point Station, Unit No. 2), ALAB-188, 7 A.E.C. 323, 356-57 (1974), remanded on other grounds, CLI-74-23, 7 A.E.C. 953 (1974); accord, Crnsolidated Edison Company of New York (Indian Point Station, Unit No. 3), CLI-75-14, 2 N.R.C. 835, 839 n.8 (1975).
l I
l C. The Agency's NEPA Responsibilities I
) Intervenors next argue that the Licensing Board mis-cpprehended its NEPA responsibilities by deciding only the mat-tors in controversy. Intervenors' Brief at 9-10. This argument f displays a fundamental misunderstanding by Intervenors of the two-step licensing process and the licensing boards' role at the t
cperating license stage.
NEPA requires that federal agencies take a "hard look" at the significant environmental consequences of major Federal ac-tions. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976);
r e, e.g., Boston Edison Company (Pilgrim Nuclear Generating Sta-tion, Unit 2), ALAB-479, 7 N.R.C. 774, 779 (1978). In order to cccomplish this purpose, the NRC issues an FES for the construc-tion of the facility,3/ and then prepares a supplement to the FES 3/ NRC's regulations require the applicant for a construction parmit to submit an Environmental Report ("ER"), which facil-(Continued Next Page)
whan an applicant seeks an operating license. 10 C.F.R.
Il 51.75, 51.92, 51.95. The supplemental FES accompanies the op-croting license'(OL) application through the agency review pro-I cocs. 10.C.F.R. $ 51.94. It addresses only those matters which y differ from, or reflect significant new information since issu-cnce of the construction permit (CP) on matters discussed in the FES'. 10 C.F.R. 5 51.95; see Final Rule, Environmental Protection R3gulations for Domestic Licensing and Related Regulatory Func-tiens and Related Conforming Amendments, Supplementary Informa-tien, 49 Fed. Reg. 9352, 9364 (1984) (Supplemental FES require-
'm:nt'is not a requirement to repeat at the OL stage the full-scale environmental review required at the CP stage; the
" cole function" of the supplement is to update the prior environ-m:ntal review); see, e.g., San Luis Obispo Mothers for Peace v.
NRC, 751 F.2d 1287, 1298 (D.C. Cir. 1984). Thus, for example, tho cost-benefit analysis need not be redone at the OL stage un-locs significant new-information makes it necessary to do so.
Moreover, by rule, the supplemental FES should not discuss alternative sources of energy, alternative sites or the need for p wer. 10 C.F.R. 5 51.95; compare Intervenors' Brief at 10 (Li-censing Board review must determine "whether the NRC Staff has cot its burden of assessing all environmental issues and
.(Continued)
'itotes the NRC Staff's assessment of the environmental impact of tho proposed action. 10 C.F.R. l 51.45. The ER is then supple-Cented at the operating license stage. 10 C.F.R. 5 51.53.
alternatives from the construction and operation of the facility.").
A Commission decision on an action for which an FES has been prepared is formalized in the public record of decision. 10 C.F.R. $ 51.102(a). When a hearing has been convened, the record of decision is the initial decision of a licensing board (or the subsequent Appeal Board or Commission decision). 10 C.F.R.
$ 51.102(c). The record of decision may be integrated into any other agency record prepared on the matter or may itself incorpo-rate by reference material in the FES as a part of the record of decision. 10 C.F.R. $ 51.103(b) and (c). Thus, the agency's consideration of the environmental impact of a proposed action and its position on the matter is contained in the record of de-cision, which includes the final adjudicatory decision and any other documents considered necessary or appropriate by the deci-sionmaker.
The Commission's new environmental regulations give to a li-censing board a different role in an OL proceeding than is man-dated in a CP proceeding -- distinct roles which conform to NRC precedent and practice. See 49 Fed. Reg. at 9365 ("Section 51.104 has been extensively revised to reflect NRC practice re-specting the consideration of environmental issues in licensing hearings."). In a CP proceeding, a licensing board must indepen-dently ensure that the agency's NEPA obligations have been satisfied. 10 C.F.R. $ 51.105; see Pilgrim, supra, ALAB-479, 7 N.R.C. at 792-93 (licensing board serves as an independent check
cn whether the NRC Staff has fulfilled its NEPA responsibil-ities); accord, Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 N.R.C. 503, 526 (1977),
citing Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-123, 6 A.E.C. 331, 334, rev'd on other grounds sub nom.
Anschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976), rev'd sub nom.,
Vormont Yankee Nuclear Power Corp. v. NRC, 435 U.S. 519 (1978).
In contrast, during an OL proceeding, a licensing board's rasponsibilities are much more limited, consistent with the '*
non-mandatory nature of the hearing process. Section 189(a) of the Atomic Energy Act, 42 U.S.C. $ 2239. Obviously, the board must decide all issues in controversy among the parties. 10 C.F.R. $ 51.104(a)(3). Although the regulation is not explicit en this point, see 10 C.F.R. 5 51.106, it is clear that the role of a licensing board at the OL phase extends no further than d:ciding contested matters. This conclusion follows from the ab-ccnce in the regulations of any mention of the board's indepen-d:nt' responsibilities, which are made very explicit in the reg-ulation concerning CP proceedings.~ Compare 10 C.F.R. $ 51.106 with 10 C.F.R. 5 51.105. It is also consistent with the state-
' c;nt of considerations accompanying the promulgation of revised Port 51, which refers to conformance with current NRC practice, tnd with the Commission's Rules of Practice set forth in Subpart G of 10 C.F.R. Part-2. 49 Fed. Reg. at 9365. The Rules of Prac-
'tice provide that in OL proceedings, a licensing board cannot pursue its own issues, absent compelling reasons to do so. 10 i
_ _ _ _ _ _ _ _ _ _ _ _ . - _ _ J
C.F.R. $$ 2.760a, 2.785(b)(2); see Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-183, 7 A.E.C. 222, 226 (1974); Virginia Electric and Power Company (North Anna Nuclear P wer Station, 1 & 2), ALAB-491, 8 N.R.C. 245, 247 (1978); see niso Clevelar.d Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 N.R.C. 1105, 1115 (1982) (re-forence to stringent procedures applicable to the raising of new icsues sua sponte). Environmental matters are expressly included in the Rules of Practice concerning matters not put into contro-varsy by the parties. See 10 C.F.R. $5 2.760a, 2.785(b)(2).
Furthermore, there is no reason to apply a different rule to en-vironmental issues raised in an OL proceeding.
In summary, the Licensing Board in this case was responsible for resolving three environmental contentions which challenged vary specific facts presented in the FES. It had no independent eversight responsibilities. If the evidence presented on these contentions raised significant new environmental considerations not previously addressed during the CP stage or absent from the cupplemental FES prepared for the OL application (which we show balow is not the case), the agency would have to consider how this information might affect the previous cost-benefit analysis i
for the proposed facility. Absent any such finding, however, the Licensing Board's job would end with a decision on the three icsues in controversy. Compare Intervenors' Brief at 18 (need for additional cost-benefit analysis).
Also of general applicability to Intervenors' appeal is their apparent position that exhaustive evaluation is required of any conceivable environmental impact of the proposed action, without regard to its significance. In contrast, determinations "need not be based on every scrap of data which could conceivably be gathered." Consolidated Edison Company of New York, Inc.
l (Indian Point Nuclear Generating Station, Unit No. 3), CLI-75-14, 2 N.R.C. 835, 839 (1975), citing Jicarilla Apache Tribe v.
Morton, 471 F.2d 1275 (9th Cir. 1973). Remote and speculative possibilities need not be explored. Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3),
ALAB-562, 10 N.R.C. 437, 446 (1979), citing Life of the Land v.
Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961 (1974). Nor must every uncertainty be definitely elimi-nated. Long Island Lighting Company (Shoreham Nuclear Power Sta-tion), ALAB-156, 6 A.E.C. 831, 838 (1973). As the Ninth Circuit stated in Jicarilla, "[i]f we were to impose a requirement that an impact statement can never be prepared until all relevant en-vironmental effects were known, it is doubtful that any project could ever be initiated." 471 F.2d at 1280.
In short, the agency must utilize a " rule of reason" when evaluating and predicting environmental effects. San Luis Obispo Mothers for Peace v. NRC, supra, 751 F.2d at 1300; see, e.g.,
Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C. 775, 779 (1979), remanded on other grounds, CLI-80-8, 11 N.R.C. 433 (1980), and numerous authorities cited therein.
1 D. Joint Contention II(e): Fly Ash Joint Contention II(e) alleged that radiological doses from the anticipated routine gaseous emissions from the Harris Plant have been underestimated because the NRC Staff and Applicants' analyses fail to account for the attachment of radionuclidea to respirable fly ash particles in the ambient atmosphere, and their subsequent deposition in the lung. LBP-85-5, slip op. at 21.
The Licensing Board concluded that Joint Contention II(e) was in-correct. 'It found that the NRC Staff and Applicants' dose esti-mates, which conform to the guidance contained in Regulatory Guides 1.109 and 1.111 concerning inhalation dose conversion fac-tors and effluent deposition velocities, have not been signifi-cantly underestimated. Id. at 25, 29, 30.
Intervenors now challenge this conclusion on the basis of two assertions, each of which is incorrect: (1) that many of the assumptions used in Applicants' dose estimates were found defi-cient by the Licensing Board; and (2) that there was insufficient technical data presented to be able to assess the effects on the population of Joint Intervenors' fly ash phenomenon. Interve-nors' Brief at 10. In Intervenors' view, because of these al-leged inadequacies in the record, the environmental analyses of plant operation by the NRC Staff and Applicants are materially deficient. Id. at 11. Contrary to the Intervenors' claim, the Licensing Board's analysis is thorough and sound.
Intervenors selectively cite the findings of the Licensing Board in order to mount their challenge to the Licensing Board's resolution of Joint Contention II(e). Indeed, the Licensing Board agreed with the Joint Intervenors that three particular facts concerning the fly ash phenomenon were not known with the exactitude demanded by the Joint Intervenors. LBP-85-5, slip op.
at 29. These facts were: (i) the exact concentration and size distribution of atmospheric particulate matter at the Harris site; (ii) the degree to which radioactive particulate isotopes to be emitted from the Harris Plant may become associated with atmospheric particulate matter; and (iii) the exact extent of lung deposition in the Harris population. Id. at 29. These un-certainties were expressly found to be of no consequence, how-ever, because of the insignificance of their impact on the esti-mated dose from normal releases from the Harris Plant.
As the Licensing Board observed, the incremental impact of worst case assumptions about these factors would be to increase the estimated dose of 0.2 millirem per year by one tenth of one millirem. Id. at 29-30. This calculation is based on the as-sumption that the radionuclides released from the plant that can take particulate form 4/ attach to fly ash particles of an optimal 4/ Over 98 percent of the whole body dose from inhalation comes from tritium in the form of tritiated water -- a fact Intervenors do not here, dispute. LBP-85-5, slip op. at 22. Tritiated water cannot lodge in the lung, but would be exhaled or pass through it. Id. Furthermore, even if this were not the case, only a miniscule fraction of the tritiated water emitted from the Harris (Continued Next Page)
~cize such-that all of these inhaled particles deposit in the re-cpiratory tract. Id. at 28.5/ In the Licensing Board's view, this increment of uncertainty, attributable to the fly ash phe-n:menon, is " acceptably small." Id. at 30. Intervenors offer no fccts whatsoever to challenge this analysis. In fact, the evi-d:nce strongly supports the view that the fly ash phenomenon identified in Joint Contention II(e) produces precisely the kind of unlikely and insignificant environmental effects that an agen-cy need not address in its environmental impact statement. See ccction I.C., supra.
Thus, it is particularly ironic that Intervenors' second basis for appealing the Licensing Board's resolution of Joint C:ntention II(e) is an alleged insufficiency of technical data to cupport the Licensing Board's findings. The Joint Intervenors cpted to present no affirmative evidence on Joint Contention II(e). LBP-85-5, slip op. at 21. In contrast, however, Appli-cants' and the NRC Staff's witnesses were health physics (Continued)
Plant would be associated with the minute quantities of fly ash in the air and then be inhaled by the population. Id. at 23. In chort, the major dose contributor -- tritium -- is virtually un-cffected by the fly ash phenomenon of concern in Joint Contention II(e). Id.
5/ Applicants' testimony established that 100 percent retention of inhaled particulate matter is unrealistic. Applicants' Testi-ceny of John J. Mauro and Steven A. Schaffer on Joint Contention II(e) (Fly Ash), ff. Tr. 1,605 ("Mauro & Schaffer"), at 8-9; LBP-85-5, slip op, at 26. At most one would expect 75 percent rotention, which is what the Regulatory Guide 1.109 model as-Cumes. Id. at 25-26.
~14-
cxpertsp/ who analyzed in considerable detail the fly ash phenomenon postulated by the Joint Intervenors. These experts utilized distinct but complementary approaches to resolving the l
issue raised by Joint Contention II(e). Drs. Mauro and Schaffer cnalyzed in detail the significant features of the inhalation
- dosimetry and atmospheric deposition models used in the Appli-cants' ER and in the FES to predict doses from gaseous releases,
! whereas Dr. Branagan enveloped the problem by calculating the
! perceived impact of fly ash particles of optimal size on the dose to the critical organ (thyroid). LBP-85-5, slip op. at 25-31;
, ree Mauro & Schaffer, supra; Branagan-II(e), supra. Both analy-ces effectively established that the assumptions and parameters cmployed to calculate predicted doses from normal operation of the Farris Plant conservatively account for the attachment of cirbor te radionuclides to fly ash, notwithstanding the fact that the calculations do not explicitly consider this phenomenon.
LBP-85-i, slip op. at 7-8, 26, 27, 30 2/
@/ Applicants' witnesses Mauro and Schaffer have doctorates in biology and environmental health science and biology, respective-ly. Thesy have over a decade of experience in the fields of ra-diological and environmental assessment. Mauro & Schaffer at 1.
Dr. Branagan, the Staff's expert, has a doctorate in radiation, biophysics and is Senior Radiobiologist with the NRC's Ra-diological Assessment Branch. NRC Staff Testimony of Edward F.
Branagan, Jr., on Joint Contention II(e), ff. Tr. 1,865
("Branagan-II(e)"), attached Professional Qualifications.
Z/ Intervenors may be arguing that some of the uncertainties present and assumptions used in making dose assessments, such as the percentage of inhaled particles deposited in the lung, cause the analysis to be inadequate. See Intervenors' Brief at 11.
(Continued Next Page)
In short, contrary to Intervenors' assertion, the NRC Staff did not fail to meet its NEPA responsibilities by not addressing in detail in the FES the impacts of radionuclides should they attach to fly ash particles in the ambient atmosphere. See In-torvenors' Brief at 11. As the evidence presented below clearly C0tablished, the phenomenon of concern is of no environmental cignificance and,.therefore, it need not have been addressed in the FES. See section I.C supra; cf. 10 C.F.R. 9 51.45(b)(1)
(" Impacts shall be discussed in proportion to their signifi-
. ccnce.")g/
(C:ntinued)
H: wever, Intervenors identify no. facts to support this charge, nor do they address the ample evidence introduced in the record to support the assumptions used.- See, e.g., LBP-85-5, slip op.
Ct 25-26. Furthermore, Intervenors ignore the fact that some fcctors, such as the exact extent of lung deposition, necessarily vary with each individual and cannot be established with certain-ty for a population group. Id. at 29. The courts have made it ab olutely clear that NEPA does not " require the impossible."
Long Island Lighting Company (Shoreham Nuclear Power Station),
ALAB-156, 6 A.E.C. 831, 838 (1973), citing EDF v. Corps of Engineers, 325 F. Supp. 749, 798 (E.D. Ark. 1971), quoted with rporoval in Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1121 n.28 (D.C. Cir. 1971).
g/ To the extent the fly ash phenomenon required any attention Gt all, it was extensively analyzed and described on the record in this proceeding. These analyses confirmed the appropriateness of the FES and ER findings on radiological doses from routine plcnt emissions. If necessary, this evidence can be incorporated into the record of decision on the OL application for the Harris Plcnt. 10 C.F.R. $$ 51.102, 51.103; see section I.C supra.
E. Joint Contention II(c): Duration of Radiological Dose Calculations Joint Contention II(c) alleged that radiological dose ef-fects have been estimated "over an arbitrarily short period of time compared to the length of time the radionuclides actually will be causing health and genetic damage." LBP-85-5, slip op.
l at 13. The Licensing Board granted partial summary disposition
, of Joint Contention II(c), and that ruling is not in dispute.
See Carolina Power & Light Company, et al. (Shearon Harris
! Nuclear Power Plant, Units 1 and 2), LBP-84-7, 19 N.R.C. 432, 457-58 (1984). ,
Specifically, the Licensing Board barred litiga-tion of speculative radiological impacts over geologic time peri-ods; however, it left for adjudication whether the FES should:
(i) describe the risks from routine radiological releases in terms of the 40-year plant life; (ii) take into account the in-i cremental impact on people who live near the plant for many years; and (iii) reflect the time period subsequent to the i
plant's actual operation. LBP-85-5, slip op. at 5.
After considering the environmental impact of the three issues raised with respect to the duration of radiological dose calculations, the Licensing Board concluded that the FES was ade-quate without further discussion of these impacts. Id. at 5-6.
Intervenors summarily challenge the Licensing Board's conclu-sions, arguing without any supporting analysis that the Licensing Board erred in finding that the NRC Staff had not significantly underestimated the health risks represented by normal operation of the Harris Plant. Intervenors' Brief at 11.
Intervenors' appeal is based on five statements which simply do not constitute support for the position they maintain. The first three bases are no more than restatements of the contention that was admitted for litigation:
- 1) the Staff expressed the health risks represented by the normal o'peration of the facility on an annual basis rather than over the life of the plant (an underestimation of 4000 percent given a forty-year plant life;
- 2) the Staff did not present any analy-sis of the effect on people living near the plant for many years;
- 3) the Staff did not present any analy-sis on the effects after the plant was no longer in operation (although the Applicants figured the effects over 100 additional years and stated that the increase was an addition-al forty percent over the operating life);
Intervenors' Brief at 11-12. These assertions utterly fail to cddress the analyses presented in response to Joint Contention II(e) and summarized by the Licensing Board which: (1) described thO method used in the FES and the ER for calculating ra-dialogical doses and risks, and explained the reasons for charac-torizing the offsite impacts of these doses on an annual basis; (2) quantified the reasonable and maximum life-of-the-plant and 100-year post-operation impacts; and (3) demonstrated the insig-nificance of these impacts relative to normal background radia-ticn. LBP-85-5, slip op. at 5-6, 13-17, 19-20; Applicants' Tactimony of John J. Mauro and Stephen F. Marschke on Joint Con-t:ntion II(c) (Radiological Dose Calculations), ff. Tr. 1,971
-("Mauro & Marschke"); NRC Staff Testimony of Edward J. Branagan, Jr. on Joint Contention II(c), ff. Tr. 2,058 ("Branagan-II(c)").
L
Moreover, the Intervenors fail to address the significance of their only two factual observations made in support of their first three assertions -- the alleged 4000 percent plant life un-darestimation and the Applicants' forty percent underestimate for the post-operation 100-year effects. The alleged 4000 percent underestimation is not really an underestimation, but simply the rOflection of characterizing doses on an annual, rather than life-of-the-plant (40 year) basis. To the extent costs increase by 4000 percent, benefits do as well. Most importantly, the 4000 percent and 40 percent alleged omissions from the FES are per-cCntages of two extremely small impacts -- e.g., 4000 percent of 0.004 cancer deaths (i.e., 0.16 cancer deaths), and 40 percent of tha 1740 person-rems (i.e., 706 person-rems) 100-year computed date to the U.S. population (in contrast to about one billion p2rson-rems of natural background), respectively. Mauro &
M2rschke at 7; LBP-85-5, slip op, at 15; Tr. 2,051-52 (Mauro).
A3 the Licensing Board stated, " adding 40% of a very small number to a very small number, particularly when the unknowns in these cnolyses are considered, would not constitute a significant chCnge." LBP-85-5, slip op. at 15.
The Intervenors' fourth and fifth bases for appeal on Joint Centention II(c) significantly overlap:
- 4) that neither the Staff or the Applicants analyzed the effect of plant oper-ation on fetuses from conception to birth u
altho'gh the risk to the fetus is five times '
higher than to an adult (see Finding 13, page 17, PID); and
- 5) that neither the Staff or the Applicants fully considered the effects'of fetal losses, genetic effects, birth defects, etc.,. occasioned by radioactive plant effluents (see Finding 15, page 18, PID).
Intervenors' Brief at 12. Intervenors correctly point out that th3 dose calculations use,d by Applicants and the NRC Staff begin
-ot age 0, not at conception. LBP-85-5, slip op. at 17; Tr.
1,975-76 (Marschke). The issue, then, is the significance of this fact to the dose calculation, which Intervenors do not cddress. .
As the Licensing Board explained, the omission of fetal dose
'hno little effect on the dose estimate. LBP-85-5, slip op. at
- 17. This is because, notwithstanding the higher risk coefficient th0t is applied to the fetus,9/ the duration of this higher risk io very brief -- three quarters of one year -- out of a 70-year lifetime. Id.; see Tr. 1978-82 (Mauro). Quantitatively, the in-crcase in lifetime dose, factoring in fetal dose, is about 5 per-
. cent. Tr. 1986-87 (Mauro). Similarly, the genetic effects from plcnt operation are insignificant: the Staff calculated the ef-fcct to be 0.16 of a potential genetic disorder for the 1.75 mil-Llicn people in the 50-mile plant radius,10/ in contrast to the 9/ It should be noted that this higher risk coefficient may be j
vary conservative as it is derived primarily from the Japanese cttmic bomb data-base, which involved high exposure levels. Tr.
j 1978-79 (Mauro).
10/ This figure represents the calculated sum of potential g:netic disorders that may occur over all future generations of tho exposed population (within 50 miles) due to exposure to ra-dicactive effluents from 40 reactor-years of operation.
Brcnagan-II(c) at 9.
n3rmal expected rate of about 11 percent of this population.
LBP-85-5, slip op, at 18.
In summary, the Licensing Board carefully considered whether the FES' annualized treatment of radiological doses and risks failed to contain any significant information concerning the duration of dose or risk which it ought to address. It concluded that no significant information was absent from the FES. Id. at 5-6. Moreover, annualizing doses facilitates the assessment of their significance and provides a reasonable representation of the. radiological impacts of plant operation. Id. at 19-20; Mauro
& Marschke at 5. Plant lifetime doses readily can be calculated from annualized doses and, of course, the cost-benefit ratio es-centially would remain unchanged. LBP-85-5, slip op. at 20; Branagan-II(c) at 3. Intervenors' appeal is hollow because it effers no facts or arguments which rebut these findings.
F. Eddleman Contention 8F(1): Coal Particulate Health Effects Eddleman Contention 8F(1) challenged the NRC Staff's estima-tion of the health effects of the coal particulate value, 1,154 cotric tons a year (MT/yr),11/ contained in Table S-3 of 10 11/ The 1,154 MT/yr is a hypothetical attribution of energy from o coal-fired plant needed to support the uranium fuel cycle for cno year of the Harris Plant's operation. Most of this energy is uscd in the uranium enrichment process at gaseous diffusion plcnts. LBP-85-5, slip op, at 33-34; Applicants' Testimony of LO nard D. Hamilton on Wells Eddleman's Contention 8F(l) (Table (Continued Next Page)
C.F.R. Part 51, the generic quantification of the environmental impact of the uranium fuel cycle.12/ LBP-85-5, slip op. at 31.
These health effects are treated briefly in the FES. Id. at 32.
_After reviewing the detailed analyses of Applicants' and NRC Staff's experts,13/ the Licensing Board found that "the Staff (Continued)
S-3 Coal Particulates), ff. Tr. 1,178 (" Hamilton"), at 3; NRC Staff Testimony of Dr. Loren J. Habegger, Dr. A. Haluk Ozkaynak
.gnd Mr. Ronald L. Ballard Regarding Eddleman Contention 8F(l)
'(Health Effects of Coal Particulates at the Table S-3 Level), ff.
Tr. 1,380 ("Habegger et al."), at 4.
12/ As the Licensing Board observed, Table S-3 values are not cubject to challenge in individual licensing proceedings.
B91timore Gas and Electric Co. v. NRDC, 103 S.Ct. 2246 (1983);
nro LBP-85-5, slip op. at 31. However, the health effects at-
.tributable to these values are not part of the Table and there-fore they may be litigated in individual proceedings. See 10 C.F.R. Part 51, Table S-3 at n.1.
13/ Dr. Leonard D. Hamilton testified on behalf of Applicants.
Dr. Hamilton is an expert on the health and environmental effects of all energy sources, including the health effects of air pollu-tien from fossil fuel combustion for electricity generation. He 10 the head of the Biomedical and Environmental Assessment Divi-cion in the National Center for Analysis of Energy Systems at Brookhaven National Laboratory. LBP-85-5, slip op, at 33; Hcmilton at 1 and Attachment 1; cf. Louisiana Power and Light
, Company (Waterford Steam Electric Station, Unit 3), ALAB-732, 17
~
N.R.C. 1076, 1092 (1983) (reference to Dr. Hamilton's expert qualifications in the appraisal of radiation health risks).
Dr. Loren J. Habegger, Dr. A. Haluk Ozkaynak, and Mr.
Ronald J. Ballard testified on behalf of the NRC Staff. Dr.
Habegger is the Manager of the Environment and Natural Resources S ction, Energy Environmental System Division, Argonne National L boratory. Dr. Ozkaynak is the Project Director of Harvard Uni-vorsity's multi-disciplinary study of the health effects of ambient particulate matter. Mr. Ballard is Chief of the Environ-m:ntal and Hydrologic Engineering Branch of NRC's Division of En-gineering. LBP-85-5, slip op. at 32-33; Habegger et al., at At-techments 1, 2 and 3.
l b
I
~ _ . _ _ ,___ _ _ _ _ . . _ _ _ . _ _ . . . .
cuccinctly and correctly concludes in the FES that there is a miniscule incremental enviornmental impact from the coal parti-cles identified in Table S-3." Id. at 12. Mr. Eddleman chal-1snges this finding. However, his position is based on three ar-guments which reflect a misunderstanding of the facts and law at icsue.
Mr. Eddleman first maintains that the Licensing Board erred by limiting its consideration of Table S-3 coal particulate haalth effects to those effects within 50 miles of the coal plant cmission sites. Intervenors' Brief at 13-15. Mr. Eddleman dnubts that this analysis is a " worst case" analysis because, cince coal particulates can travel beyond a 50-mile radius, he b211 eves these effects have been improperly excluded from the cnalysis.
Mr. Eddleman's concern is unfounded. The model used by Dr. Hamilton assumes that all of the 1,154 MT/yr of coal ptrticulates at issue here are trapped within a 50-mile radius of the coal plant sites because this results in a more conservative casessment of the environmental impact of the particulates. This is because of two independent factors: (i) a greater geographic dispersion of the particulates significantly reduces the pnrticulate concentration level in the atmosphere, and in fact the actual coal plants producing the 1,154 MT/yr are widely geo-graphically dispersed; and, (ii) each actual contributing plant distributes small amounts of particulates over large areas. In c:ntrast, in order to estimate an upper limit of health risk,
Dr. Hamilton focused on only five specific plant sites and cttributed all of the particulates to a 50-mile radius around ccch site. Hamilton at 4, 6-7; see LBP-85-5, slip op. at 35-36.
A further conversatism in Dr. Hamilton's calculation is the linear assumption he uses in applying the damage function for fine particles. LBP-85-5, slip op. at 42. .Thus, not only is his calculated 50-mile dose conservatively high, but so is the risk cttributable to that dose.
Utilizing a Gaussian dispersion model and actual meteorolog-ical data for the sites at issue, the NRC Staff experts calculat-cd the exposure levels within 50 miles. Habegger et al. at 12.
These experts did not extend their calculation beyond 50 miles bncause it was unnecessary to do so: EPA guidelines for such cnalyses do not recommend estimations beyond 50 miles when con-centration levels are below a level which is higher than any lovel that was found within the 50-mile perimeter. Id. at 15; cce LBP-85-5, slip op. at 36-38.
Furthermore, "[n]o worst case analysis is required if an egency has carefully studied the potential environmental impacts of a proposed action and has determined, with a reasonable degree of certainty, the probability and consequences of such impacts."
San Luis Obispo Mothers'for Peace v. NRC, supra, 751 F.2d at 1302; cf. 49 Fed. Reg. 9352, 9366-9368 (discussion of worst case cnalysis and NRC view that NEPA analyses should be limited to cvants that "can reasonably be expected to occur"). In this case, the impact of 1,154 MT/yr has been determined with a very rsasonable degree of certainty and accuracy.
In short, if anything, the-50-mile analyses of coal particulate health effects conducted by Applicants was unnecessarily conservative and thorough. Moreover, Dr. Hamilton also performed an alternative calculation of the health (mortali-ty) effects of coal particulate emissions attributable to the uranium fuel cycle by. assessing the health risk to the United States due to the long-range transport of these particles and found the risk to be miniscule. LBP-85-5, slip op. at 45, 48-50; Hrmilton at 12, 15-16; Tr. 1,279-81 (Hamilton). Although the NRC Staff's experts did not do a long-range transport calculation, because the health effects at the outer boundary of the 50-mile rcdius were virtually negligible, they would expect effects fur-thar away from the coal plants to be even less. Tr. 1,571-72 (Habegger).
Mr. Eddleman next maintains that the Licensing Board failed to confront the evidence of record concerning the best estimate of health effects caused by particulate emissions from coal-burning power plants. Intervenors' Brief at 13. This claim is based on Mr. Eddleman's view that a higher risk coefficient --
2.31+0.81 deaths / year /100,000 persons per ug/m 3 FP -- should i
[ hcve been used to estimate coal particulate health effects. Id.
ct 16. Mr. Eddleman also faults the risk coefficient used be-cruse it allegedly may not capture the adverse effect of air pol-g lution prior to the year of a person's death. Id. In addition, ha believes that the percentage estimate of particulates that are in the fine particle size range should be 68 and not 40 percent.
i Id. at 17.
Mr. Eddleman misinterprets the Licensing Board's treatment
~
of the higher risk coefficient preferred by Mr. Eddleman. The Licensing Board recognizes that this coefficient is applicable to fine particle concentrations;14/ their dissatisfaction is with Mr. Eddleman's application of the coefficient to total (gross)
- coal emissions from the fuel cycle, not fine particle emissions.
LBP-85-5, slip op. at 49. The evidence presented and the Licens-ing Board's decision reflect the use of the more conservative damage coefficient used by the NRC Staff experts, see id. at 44-45, as well as the slightly lower damage coefficient used by Dr. Hamilton. Id. at 42-43; see n.14, supra. The two estimates of the range of excess deaths attributable to 1,154 MT/yr, using the two different risk coefficients, were found to be quite con-oistent: 0.03 to 0.09 annually, in contrast to 0.001 to 0.13.
LBP-85-5, slip op, at 45.
Similarly, Mr. Eddleman is incorrect in stating that the risk coefficients used may not capture the adverse effects of air pollution prior to the time period studied. Dr. Hamilton and Dr.
Ozkaynak specifically testified that the cross-sectional data "14/ Dr. Hamilton used the FP damage coefficient published in the most recent Harvard study on the subject. LBP-85-5, slip op, at 42; Hamilton at 12, citing 1983 Harvard Report (Staff Ex. 3) at 45-50. In their testimony, the Staff experts chose to use a slightly higher risk coefficient that was derived from more re-cent time series analyses and was presented in the latest Harvard rasearch report, which was in preparation at the time the wit-nasses testified. Habegger et al., at 32-33. Both risk coeffi-cicnts apply to FP inhalation. LBP-85-5, slip op. at 42, 49; Hebegger et al., at 33; Tr. 1440 (Ozkaynak).
l '
l l
th;y relied upon to generate.a risk coefficient for mortality due to air pollution do fully account for the effects of past expo-cure. The very nature of a cross-sectional study, such as the Hnrvard group's analysis, ensures that the resultant mortality figures capture the long-term risk from air pollution which ulti-mately results in fatalities. See Tr. 1,334-35 (Hamilton) ("what you are seeing is the effect (of] . . . very long term exposure to these particles"); Tr. 1,421-22 (Ozkaynak); see also Tr.
1,331-32 (Hamilton: this is the best state of the art, and is a vary conservative assessment); Tr. 1,329 (Hamilton: basis for confidence in cross-sectional analyses is confirmatory experimen-tal evidence); Tr. 1,421-22 (Ozkaynak: analysis assumes people exposed to typical level of particle concentrations in previous yacrs of their life); Tr. 1,548 (Ozkaynak: cross-sectional data consistent with time series mortality data).
With respect to the applicable percentage of particles that constitute fine particles (FP), Mr. Eddleman may be confused.
l The Licensing Board's discussion of the NRC Staff experts' analy-cia does rely on the extremely conservative figure of 68 percent
- of the annual Table S-3 particulate emissions as FP, used by the Stnff experts, which results in 790 of the 1,154 MT/yr of coal pnrticulate emissions being less than 2.5 ug. LBP-85-5, slip op.
o ct 38; see Habegger et al. at 8-9.15/ However, reference also is 15/ The reference reactor or model plant that was used as the bnais for the Table S-3 1,154 MT/yr coal particulates would pro-(Continued Next Page) made'by the Licensing Board to the FP estimate of 10 percent that is used by Dr. Hamilton.ls/ LBP-85-5, slip op. at 42-43. It is
- inoteworthy that using either percentage,17/ the estimated health-risk associated-with these emissions is inconsequential.lg/ Id.
(Continued) duce 9,295 MT/yr of ash, of which 7,900 MT/yr is carried in the flue gas as fly ash; the rest is collected as bottom ash. The question is, how much of the hypothetical 1,154 MT/yr that is re-
' leased is FP (2.5 ug or smaller)? Arguably, using available date for pulverized-coal fired boilers, approximately 10 percent or 115.4 MT/yr should be FP. The NRC Staff experts assumed, how-sver,.that the 1,154 MT/yr attributable to Table S-3 coal particulates was made up first of all of the most harmful size psrticles contained in the 7,900 MT/yr of available fly ash, and than of the midsize particles, with none of the least harmful particles present. Thus, all of the available FP, or 10 percent of 7,900 which is 790 MT/yr, was assumed to be emitted FP. This mannt that 68 percent of the 1,154 MT/yr was FP. This figure is
- conservative. Available empirical data suggests that for pulverized-coal fired boilers, approximately 10 percent of the fly ash emitted-without controls is FP. Habegger et al. at 8-9.
1p/ Dr. Hamilton's estimate reasonably assumes that 10 percent of the 1,154 MT/yr released is FP, which is the percentage of FP in an uncontrolled pulverized coal-burning power plant. See
-Htmilton at 12.
17/ The NRC Staff experts' testimony about a 40 percent FP emis-nion rate was elicited by Mr. Eddleman on cross-examination and
-was based on a plant with an electrostatic precipitator.
i Tr. 1,458-59 (Habegger). It was not the figure relied on by the NRC Staff experts in their calculation. (Mr. Eddleman may also ba confusing Dr. Hamilton's use of a 40 percent figure, which was relied upon in the context of his comparative health assessment.
Hare, Dr. Hamilton refers to TP, or thoracic particles, to evalu-
-cts health effects. LBP-85-5, slip op. at 39-41. TP constitute about 40 percent of the mass of total particles. Id. at 40. FP is a small subset of TP. Id. at 42.)
Ig/ Even using Mr. Eddleman's preferred calculation assumptions of (i) the-high risk coefficient and (ii) the high FP percentage unsd by the NRC Staff experts in their 50-mile calculation, plus
~(iii) Dr. Hamilton's long-range calculation formula (but not his (Continued Next Page)
( l l
. _ _ _ ~ . . . . - _ , _ , ~ , - . . _ . _ _ _ _ . - . _ _ _ , - - - -.
6t'41, 43, 45..
Finally, Mr.:Eddleman argues that the Licensing Board should have done a new cost-benefit. analysis, weighing his alleged haalth effects of' Table S-3 coal particulates against the benefit of electricity produced at the Harris Plant. Intervenors' Brief i i at'18. Mr. Eddleman is incorrect. The FES identified only a miniscule risk associated with the 1,154 MT/yr of coal
-p2rticulates-identified in Table S-3, and the evidence presented 3 .in this case' fully substantiates that finding. See LBP-85-5, alip-op. at 46-47. In the absence of significant new environ-msntal information, there is no basis for the Licensing Board (or tha.NRC Staff) to update the cost / benefit analysis conducted at ths construction permit phase for the Harris Plant. See section I.C, supra. The health effects of Table S-3 coal emissions are
+
insignificant; they therefore prompt no additional NEPA responsi-bilities for the agency.
-(Continued)
Ecosumed FP percentage), and then (iv) multiplying the figure by
- 40. years, the resultant 40-year U.S. population effects are ex-tramely small. Cf. LBP-85-5, slip op. at 49-50 (uses all of thsse' assumptions except th'e NRC Staff experts' 30-mile FP factor
-of 68%). . Moreover, this calculation ignores the fact that in ucing the Harvard risk coefficient, as Mr. Eddleman does, one may not exclude zero risk as a possibility. It also ignores Dr.
H milton's. view that in biological reality, the risk to the U.S.
population is essentially zero. See, e.g., Tr. 1,273-79 (Hnmilton).
L l
l G. Conclusion The Licensing Board thoroughly evaluated the merits of Joint Intervenors' Contentions II(c) and II(e) and Eddleman Contention 8F(l) and found them to be unsubstantiated. Intervenors present no factual or legal basis for challenging the Licensing Board's findings. Moreover, the record overwhelmingly establishes the sufficiency of the FES' treatment of the issues in controversy.
-II. The Licensing Board did not Err in its Rulings Rejecting as Inadmissible Proposed Contentions CCNC 16 through 18, Eddleman 2, 12, 15, 22(a) and (b), and 82.
, m A. Introduction In Carolina Power & Light Company, et al. (Shearon Harris
' Nuclear Power. Plant, Units 1 and 2), LBP-82-119A, 16 N.R.C. 2069,
.2070-71 (1982), the Licensing Board discussed in a general way tha. case law which expounds upon the requirement, in-10 C.F.R.
i 2.714(b),1that an intervenor set forth with reasonable specif-
"i city the bases for each contention. On appeal, Intervenors-l I
claim that in certain instances the Licensing Board failed to ad-l L hare to the guidance of a decision it discussed -- i.e., Houston '
l ~
j -Lighting and Power Company (Allens Creek Nuclear Generating Sta-tion, Unit 1), ALAB-590, 11 N.R.C.
542 (1980).19/
19/ -No law is cited in support of the sweeping observation by Intervenors that the Licensing-Board is required under NEPA to haar'all environmental claims. See Intervenors' Brief at 19.
ETha Commission's standards for admitting contentions apply with-l ~ cut-distinction to NEPA issues as well as to those which address
[ ~
hselth and safety matters under the Atomic Energy Act. See
! utnerally 10 C.F.R. $ 2.714(b).
! . .- _ _ _ _ . _ __ . _ _ _ _ _ _ _ . . _ _ _ . , _ _ _ _ . . . _ _ _. _ _ _ . -_- ~ _
In Allens Creek, a construction permit proceeding, the Ap-paal Board reversed the denial of a petition for leave to inter-vane, holding that the licensing board erroneously had gone to the merits of the proferred contention and rejected it because of the absence of factual-support. Intervenors argue from this holding that'the' validity of factual allegations may not be con-cidered in determining whether a contention may be admitted, and that fair notice of the issue raised is all that is required.
Intervenors' Brief at 20,- 22.
Intervenors reading of Allens Creek is erroneous, however, cnd essentially would repeal the basis requirement of 10 C.F.R. 5 2.714(b). Licensing boards are expected to scrutinize a pro-posed contention to determine if the basis' advanced is credible or arguable. Where no attempt is made to identify with reason-chle specificity a credible or arguable basis for a proferred contention, dismissal by a. licensing board is justified.
Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-765, 19 N.R.C. 645, 652-656 (1984), petition for roview filed, An thony v. Philadelphia Electric Co., No. 84-3409 (3d Cir., June 28, 1984). In Limerick, it was found that the in-tervenor fundamentally misunderstood the laws of physics and the
-physical properties of unirradiated fuel. Here, where the inter-vanor displays a fundamental misunderstanding of information L&vailable in Applicants' Environmental Report ("ER") and/or Final Safety Analysis Report ("FSAR"), the Licensing Board similarly was correct in rejecting the proposed contention.20/
20/ Applying Allens Creek, the Licensing Board overruled Appli-cents' objections which amounted to a premature defense on the (Continued Next Page)
l I-B. CCNC 16 through 18 1
CCNC asserts, without elaboration, that the Licensing Board
! orred in rejecting CCNC proposed Contentions 16, 17 and 18, al-f 1sgedly.on the merits. Intervenors' Brief at 21. These conten- !
!~ .
I
- i. tiens claimed that Applicants' operational radiological moni-I-
toring program is deficient with regard to three sample points listed in the Environmental Report. CCNC argued that its pro-poced modifications would enable corrective measures to be taken na soon as radiation levels are greater than background.21/
In their written response in opposition to these conten- ,
tions, Applicants argued,. inter alia, that CCNC misunderstood the purpose of the monitoring program and thus had not advanced a maaningful deficiency. ER section 6.1.5 explained that the pur-poce of monitoring at the sampling points in question is to es-tablish environmental data to demonstrate that mathematical mod-ela used to estimate population exposure from plant releases are ransonable, and that significant tranport pathways are included in est'imating public exposure. The concern for prompt (Continued) marits of a proposed contention. See, e.g., LBP-82-119A, supra, 16 N.R.C. at 2071, 2076, 2077, 2081 (1982).
.ll/
s Conservation Council of North Carolina Supplement to Peti-tien to Intervene, May 14, 1982, at 9-10. At the construction parmit stage, CCNC also challenged the radiological monitoring
- program, which was found to be adequate. Carolina Power & Light Crmpany (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), LBP-78-4, 7 N.R.C. 92, 122-124 (1978).
notification of increased radiation levels is met by the effluent radiological montoring and sampling system, described in FSAR esction 11.5. CCNC did not address this system.22/
During the special prehearing conference on July 13, 1982, the Licensing Board asked CCNC to respond to this argument. CCNC
'~ctated that the effluent monitoring system could not account for unknown discharge points. Tr. 203-207. The Licensing Board ul-
.timately-rejected CCNC Contentions 16 through 18 because they in-
+
. accurately ascribe to one monitoring system a function performed by-another, without advancing a deficiency, with basis and spe-
'cificity, in the system which performs the function.23/
LBP-82-119A, supra, 16 N.R.C. at 2082 (1982).
3
- Here, the Licensing Board was not asking CCNC to advance fcctual support, as Allens Creek proscribes. Rather, CCNC was
- fculted for its clear misapprehension of information it reviewed, and for its failure to address information available to it in a I document'(the FSAR) available and filed in support of the op-i _.
l ereting license application. Discovery and summary disposition L
j =are not necessary to assess the purported basis for such mis-i placed assertions.2g I'
l 22/. See Applicants'-Response to Supplement to Petition to' Inter-vane by Conservation Council'of North Carolina, June 15, 1982, at R.- 6-8.
F 23/ No credible theory, argument or facts were advanced to explain why unknown discharge points will emerge.
l 24/-'CCNC did not file an objection to this aspect of the Licens-
-ing Board's special prehearing conference order, although it did object to other rulings. See CCNC " Response to Memorandum and Order," October 14, 1982.
i l
C. Eddleman 2 Mr. Eddleman argues that the Licensing Board erred in re-jseting his proposed Contention 2 as redundant of Joint Conten-tion VI, which was admitted. Intervenors' Brief at 21;
.LBP-82-119A, supra, 16 N.R.C. at 2090 (1982). In his Contention 2, Mr. Eddleman proposed additional radiological monitoring squipment for emergency response decision-making.25/ Applicants cpposed its admission for lack of basis.26/
Mr. Eddleman acknowledges that the Licensing Board has the
-guthority to consolidate parties as to certain issues. Interve-nors' Brief at 21; 10 C.F.R. 5 2.715a. Mr. Eddleman was the drafter (Tr. 275) and a sponsor of Joint Contention VI, which he concedes is broader than Eddleman 2. Missing from Intervenors' Brief is any assertion that Mr. Eddleman was prejudiced by this consolidation -- i.e., that he was not permitted subsequently to pursue the issues raised in allegedly specific Eddleman 2 through ths_ adjudication of the broader Joint VI. Rather, the academic paint raised on appeal is that Mr. Eddleman should have been pro-vided with an opportunity to address how consolidation might 25/ Supplement to Petition to Intervene by Wells Eddleman, pro E3, May 14, 1982, at 29-30. See also Post-Hearing Submission of Walls Eddleman, August 10, 1982, at 2-3. While it is not clear-that Eddleman 2 raises an environmental issue, it has been pro-
. posed for Appeal Board consideration. Applicants do not object to appellate review at this time.
'26/ Applicants' Response to Supplement to Petition to Intervene by Wells Eddleman, June 15, 1982, at 102-105.
l l
-prejudice his rights. Since Mr. Eddleman continues to remain si-
'Isnt on any potential prejudice to him, the Appeal Board is left Et o speculate on what Mr. Eddleman's response to such an opportu-nity would have been. A party "must make a reasonable effort to have a procedural error corrected, not hoard it for use as a ground.for reversal in the event it does not like the ultimate dscision on the merits." Public Service' Company of Indiana (Mar-ble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 N.R.C. 179, 189'(1978). Mr. Eddleman is continuing to hoard.
In fact, Mr. Eddleman had the opportunity, provided by Com-mission regulations, to object to any aspect of the prehearing conference order. 10 C.F.R. SS 2.751a(d), 2.752(c). Addition-
. ally, in this instance the Licensing Board quoted the applicable rsgulation and set a' schedule for filing objections.
LBP-82-119A, supra, 16 N.R.C. at-2113-14 (1982). Consequently,
~
10c. Eddleman is incorrect in asserting that no opportunity for cbjection was available.27/
Finally, it is revealing that the Licensing Board eventually digmissed Joint Contention VI because Joint Intervenors, I
27s/ Further, Applicants note that Mr. Eddleman availed himself j
of that opportunity. However, his only reference to Contention 2 was a general request that the Board clarify the effect of re-jceting a contention as redundant. . Wells Eddleman's Objections i to 9/22/82 Memorandum and Order " Reflecting Decisions Made Fol-
~
lewing (Special) Prehearing Conference," October 15, 1982, at 5.
~Ths Licensing Board responded to this request. Licensing Board
~M:morandum and Order (Addressing Motions for Reconsideration and
.Clcrification of the Board's Prehearing Conference. Order) at 9
-(Jan. 11, 1983).
including.Mr. Eddleman,_ defaulted on their discovery obligations.
- Licensing Board Order-(Ruling on.Various Procedural Questions and-Eddleman 15AA) at 6-7 (May 10, 1984). A fair inference is that Mr. Eddleman's interest in pursuing the issues raised in his original Contention 2 was fleeting at best.
D. Eddleman 12 Mr d man argues that in light of the Appeal Board hold-ing in Allene Creek,' supra, the Licensing Board was obligated to admit into controversy Eddleman proposed Contention 12.
- Mr. Eddleman appears to take the position that providing fair no-tice of the issue meets the basis requirement for contentions found in 10 C.F.R. 5'2.714(b). Intervenors' Brief at 21-22.
Mr. Eddleman asserted, in this proposed contention, that
- - Applicants had not included in their application documents analy-son of'the effects of dumping'into'the ocean low-level radioac-tive waste produced at the Shearon Harris facility. The asserted
'bnais for the contention was that the State of North Carolina was
. not a member of a waste disposal compact and had no land burial facility. Consequently, it was argued,-the absence of alterna-tives might. compel resort to ocean dumping of the wastes.2g/
In opposition to admission of this proferred contention, Applicants. stated that they do not contemplate ocean-dumping of '
2g/ Supplement to Petition to Intervene by Wells Eddleman, pro
, E3, May 14, 1982, at 61.
i =
f 6
1 l
low-level waste.29/ Mr. Eddleman cited no document or other !
rsference to contradict that statement. The Licensing Board cor-l ractly rejected Eddleman 12, holding that ocean dumping of wastes l is not contemplated, no basis had been advanced to indicate that
! it is probable, and consequently that ocean dumping need not be considered under the NEPA " rule of reason" as an environmental impact of proposed operation of the Shearon Harris facility.
LBP-82-119A, supra, 16 N.R.C. at 2092 (1982).
This holding by the Licensing Board does not conflict with Allens Creek, which involved a proposed alternative to construc-
-tion of the power plant. Here, Mr. Eddleman asked that the NRC include as an environmental impact of facility operation the ef-fccts of an unplanned and highly improbable activity. NEPA con-t:mplates dealing only with circumstances "as they exist and are likely to exist." Carolina E.tvironmental Study Group v. United St+.tes,'510 F.2d 796, 801 (D.C. Cir. 1975). Remote and specula-tive possibilities need not be explored.30/ Life of the Land v.
29/ ^ Applicants' Response to Supplement to Petition to Intervene _
by Wells Eddleman, June 15, 1982, at 53. Mr. Eddleman was pro-vided with the opportunity to file a statement, after the special prshearing conference, in response to the written objections of Applicants and the NRC Staff to those proposed contentions not discussed during the conference. Tr. 411. His post-conference filing did not address Contention 12. See Post-Hearing Submis-sicn of Wells Eddleman, August 10, 1982.
J 30/ Mr. Eddleman's assertion that inadequate provision had been mtde for low-level waste disposal was admitted by the Licensing Bonrd as a health and safety issue. LBP-82-119A, supra, 16 N.R.C. at 2102 (1982) (Eddleman 67). Without conceding any caus-cl relationship between this contention and the likelihood of (Continued Next Page)
Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961~(1974).
E. Eddleman 82
, -Mr. Eddleman argues that the' Licensing Board erred in re-h
'jocting his proposed Contention 82, which claims that Applicants' prsoperational environmental radiation monitoring program is de-ficient.31/
, In opposition to this proposed contention, Applicants first pointed out that the preoperational environmental radiological monitoring program had been evaluated and approved by the NRC in connection with review of the construction permit application.32/
! Sta LBP-78-4, supra, 7 N.R.C. 92, 122 (1978). There is substan-i
.tial doubt that the preoperational program should be subject to challenge in this operating license proceeding. See Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2),
LBP-82-43A,-15 N.R.C. 1423, 1458-59 (1982) (NEPA does not mandate (Continued) ,
ocaan dumping, Applicants note the Licensing Board's finding, ofter completion of discovery on the issue, that there is reason-
-Male assurance that adequate long-term disposal capacity for Shaaron Harris low-level waste will be available when it is naided. Licensing Board Memorandum and Order (Revision of and Schedule for Filing Written Testimony on Eddleman Contention 9; Rulings-on Eddleman Contentions 45 and 67) at 5 (July 24, 1984).
j[1/s Supplement to; Petition to Intervene by Wells Eddleman, pro-g3, May 14, 1982, at 188-189.
32/ Applicants' Response to Supplement to Petition to Intervene by-Wells Eddleman, June 15, 1982, at 45-46.
.g 38-P w s-- a, , , , - - -~--,,,-re mn = - - - - - - - - - - - , wv n'~' - = ' ' ' ^ - - ' * ' 'Y *' ' ' "* f' ' '~'V"~"'
thnt environmental issues considered in the construction permit proceedings be considered again in the operating license hearing, ebrent new information', citing Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F.2d 1109, 1128 (D.C. Cir. 1971), and Union of Concerned Scientists v. AEC, 499 F.2d 1069, 1079 (D.C.
Cir. 1974)), ALAB-785, 20 N.R.C. 848, 871 n.78 (1984).
Nevertheless, the Licensing Board rejected the contention as lacking in basis because it did not indicate how the alleged intdequacies would adversely affect public health and safety or the environment. LBP-82-119A, supra, 16 N.R.C. at 2104 (1982).
In this regard, contentions should be material to those findings which precede licensing. See Union Electric Company (Callaway Plent, Unit 1), ALAB-740, 18 N.R.C. 343, 346 (1983),
rcconsideration denied, ALAB-750, 18 N.R.C. 1205 (1983), as modified, ALAB-750A, 18 N.R.C. 1218 (1983); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
LBP-82-106, 16 N.R.C. 1649, 1654-55 (1982). The contention itself should evince this materiality. It is no answer to at-t mpt to provide the cure for this deficiency in the contention for the first time on appeal. See Intervenors' Brief at 22; Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 N.R.C. 43, 49 (1981) (Appeal Board will not entertain arguments that a licensing board had no oppor-tunity to address and that are raised for the first time on ap-ponl). Mr. Eddleman did not address this contention in his ob-joctions to the Licensing Board's order.33/ If the Licensing 33/ Wells Eddleman's Objections to 9/22/82 Board Memorandum and Order " Reflecting Decisions Made Following (Special) Prehearing Conference," October 15, 1982.
4 l
l l
Board misconstrued Mr. Eddleman's contention, he should have ob-
.jccted at the time, and not remained silent for two and one-half yaars. See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 N.R.C. 777, 802 n.75 (1983) aff'd, CLI-83-22, 18 N.R.C. 1309 (1983).
Further, Mr. Eddleman failed to address Applicants' program cnd to indicate specifically which sampling points or sample frrquencies he found insufficient. Similarly, he provided no brais for the alleged deficiency in the program in not estab-
-.liching specific concentrations of radionuclides in the air with certain continuous reading monitoring equipment proposed in Eddleman Contention 2. Nor did Mr. Eddleman provide any basis for arguing that algae and other lower forms of life in the Harris Reservoir are not sufficiently monitored. The vagueness of the allegations simply did not put Applicants on notice as to whnt sampling program Mr. Eddleman believed to be required and why he contended that. Applicants' program did not provide a sta-tintically reliable base line concentration of radionuclides.
Finally, Mr. Eddleman advanced no basis for his suggestion that scmpling points would be deliberately or accidentally contami-l nnted.34/
Proposed Eddleman Contention 82 was based on unexplained and unfounded allegations and unsupported speculation on future 34/ Applicants' Response, n.32, supra. Mr. Eddleman did not re-cpond to these positions by Applicants in Post-Hearing Submission l of Wells Eddleman, August 10, 1982.
Gvents. Adding to the confusion inherent in the original conten-p _ tion, Mr. Eddleman now argues on appeal that "[p]ublic health and enfety depends on the timely discovery of radioactive emissions
-co?that problems can be corrected." Intervenors' Brief at 22.
Once again, Intervenors have confused the function of the envi-ronmental monitoring program with that of the effluent monitoring program. See' argument on CCNC 16-18, supra. This misplaced ar-gument.only serves to support the wisdom of the Licensing Board's ruling.
F. Eddleman 15, 22(a) and (b)
- Mr. Eddleman appeals 35/ the Licensing Board's ruling that his contentions 15, 22(a) and (b) are barred from adjudication in this proceeding by 10 C.F.R. $ 51.53(c) (1982).36/ Intervenors' i
Brief at 23; Carolina Power & Light Company, et al. (Shearon t Harris. Nuclear Power Plant, Units 1 and 2), LBP-83-27A, 17 N.R.C.
971, 971-76 (1983).
As originally admitted by the Licensing Board,37/ the ,
i I
i 35/ Intervenors purport to appeal the dismissal as well of
, CHANGE Contention 79(c). While CHANGE was a Joint Intervenor for purposes of the Joint Contentions (including II(c) and II(e),
discussed above), CHANGE Contention 79(c) was not consolidated with other contentions and is sponsored by CHANGE alone. CHANGE 10 represented in this proceeding by Mr. Daniel F. Read, and no cffective appeal on this contention has been filed by Mr. Read or cny other~ representative of CHANGE.
36/ Recodified as 10 C.F.R. 9 51.106(c) (1984).
37/ LBP-82-119A, supra, 16 N.R.C. at 2092-94 (1982). Mr.
Eddleman does not challenge the Licensing Board's limitations im-posed on these contentions as admitted at the outset for discov-
+
sry.
.=
d -
~
-6 IE Eddleman contentions at issue stated as follows: ;} =
- 15. Applicants' ER makes no mention of -]
the economic costs of nuclear waste disposal E as a cost in its cost-benefit analysis, z though it does include such costs as a " bene- -;
fit" in its calculation of per-kilowatt-hour JQ charges to customers. (Table 8.2.1-2, page -
8.2.1-4, line under " Fuel Cycle Costs" for
" spent fuel storage / disposal"). Nuclear m waste disposal costs should be included as _
costs, at more realistic figures than 1.2 ?!
mills /kwh. --
Applicants' ER assumes a 70% DER capaci- ^2 ty factor for the full lifetime of the units, 2 ignoring the fact that no large Westinghouse _;
PWR had (as of 12/31/80) ever achieved such a -d lifetime capacity factor to date (large PWRs _f being 700 MW and over, CP&L's turnkey unit '
Robinson 2 having the highest lifetime DER CF cf at 66.5% as of that date). 7s 7
- 22. The cost benefit analysis in the ER is deficient in the following respects: _
^
(A) CP&L's Amendment 2 fuel cost esti- Si mates in Table 8.2.1-2 as amended are errone- _4 ously low, as are the fuel cost lifetime es- -
timates in section 8.2 as amended and section --
11 as amended (all in the ER).
(B) CP&L's estimates in the amended section 8 of the ER that the operating pay-roll at the Harris plant based on only 2 units will not be decreased by any signifi- :s cant amount, compared to the operation of all __
4 units at the site, is not accurate.
Applicants' Motion for Codification of Admitted Contentions, ;j _
December 17, 1982; Licensing Board Memorandum and Order (Address- -3 -
ing Applicants' Motion for Codification), January 17, 1983. ]
At the time these contentions.were proposed by Mr. Eddleman, "
Applicants' Environmental Report included information on need for power (e.g., load forecasts and reserve margins) and a related 1
-a A
-n
=
'~
m cost-benefit analysis comparing the Shearon Harris facility (including construction and operation costs) with alternative en-ergy sources. The ER had not yet been amended to conform with ]
the Commission's amendment to 10 C.F.R. Part 51, effective April 26, 1982, which eliminated tne need for this information.38/ See 10 C.F.R. 5 51.53(c) (1982); 10 C.F.R. $ 51.106(c) (1984). ER __
d -
Amendment 5, which revised Chapters 8 and 11 (Benefits and m
Costs), was filed with the NRC Staff on December 15, 1982, and served upon the Licensing Board and parties under letter from -
=
Applicants' counsel, dated December 21, 1982. _] -
In response to this information, Mr. Eddleman filed twenty 1
new proposed contentions.39/ As a result of the pleadings subse- y quently filed by the parties with respect to these late-filed 5 contentions,40/ the Licensing Board called for further briefs, [
which eventually led to the dismissal of Eddleman Contentions 15, -
22(a) and (b), the subject of appeal here. The Licensing Board
=
asked the parties to address the question of whether contentions ,
e 30/ See Applicants' Response to Supplement to Petition to Inter-vene by Wells Eddleman, June 15, 1982, at 19, 29-30.
) _
9 39/ Wells Eddleman's Revised, Amended and Additional Contentions 3 Based on Eddleman 15 and ER Amdt. 5, February 11, 1983.
m 40/ Applicants' Reply to Intervenor Wells Eddleman's Revised, ;
Amended and Additional Contentions Based on Eddleman 15 and ER Amendment 5, March 11, 1983; NRC Staff Response to Wells j Eddleman's Revised, Amended and Additional Contentions Based on =
Eddleman Contention Number 15, March 11, 1983; Wells Eddleman's -
Answer to Staff & Applicants Re Revised, Amended and Additional 9 Contentions Based on Eddleman 15 and ER Amendment 5, March 18, [
1983. g i
b
U 4
based on comparative cost savings analyses in Applicants' Envi-
=
]
i ronmental Report are barred by 10 C.F.R. 5 51.53(c), and the re- _
E lated question of whether such cost savings can be counted as a
[
benefit in the NEPA cost / benefit analysis. Licensing Board Memo-a s randum and Order (Memorializing Telephone Conference and Setting i ?
l Forth Questions for Briefing), March 25, 1983. Responses were 2 p -
- filed by Applicants, Mr. Eddleman and the NRC Staff.4y --
f The Licensing Board considered these responses and concluded that comparative cost savings contentions which directly impli-
[ cate need for power projections and comparisons to coal-fired plants are barred by 10 C.F.R. 5 51.53(c). The Licensing Board mi g al'so held that such comparative cost savings may not be counted Q -
as a benefit in the Staff's NEPA cost / benefit analysis.42/
f LBP-83-27A, supra, 17 N.R.C. at 974 (1983). Consequently, ]
L Eddleman Contentions 15, 22(a) and (b) were dismissed.4_3] _I_d . at h -
976. I r =
9- -
5 g 41/ Applicants' Response to the Licensing Board's Memorandum and -
Order Dated March 20, 1983, Wells Eddleman's Response to Board -
E Questions re Need for Power Rule, Eddleman 15's, and CHANGE 79c, [
t '
NRC Staff Response to Board Order of March 25, 1983, all dated -
April 20, 1983. T n -
r 4E The Staff's environmental impact statement complies with 4 c-this holding. See Staff Ex. 1, Chapter 6. g
} 4E Eddleman Contention 15AA, which challenged the capacity fac-
! tor assumption underlying the Staff's statement of the benefits -
from plant operation, was subsequently admitted for adjudication. -
Licensing Board Memorandum and Order (Ruling on Wells Eddleman's -
Contentions on the Staff Draft Environmental Statement), at 7-8 (Aug. 18, 1983). Following discovery, the contention was decided
?
}
F in Applicants' favor on motion for summary disposition.
ing Board Order (Ruling on Various Procedural Questions and Licens- h
[ Eddleman Contention 15AA), at 7-10 (May 10, 1984). M 5 -
I --
r
-d_
q
- i) 1 x
l
-e On appeal, Mr. Eddleman argues that "[t]he Licensing Board _
advances no reason why 10 C.F.R. 51.53(c) would bar questions of -
the economic cost of agency action proposed (licensing the Harris "E plar - to operate) . " Intervenors' Brief at 23. To the contrary, the Licensing Board provided a full discussion not only of the parties' views on this question, but a numerical listing of the {
reasons for its conclusions. LBP-83-27A, supra, 17 N.R.C. at
.- i 974-76 (1983). [2 q
With somewhat more particularity, Mr. Eddleman argues that
_=
the economic " costs of the Harris plant's benefits (electricity)" --
a to be incurred, depend upon issuance of the operating license, II and are not dependent upon need for the plant or possible alter-native energy sources. Intervenors' Brief at 23. Fundamentally, -
=a Mr. Eddleman seeks to challenge benefits which are not claimed by !! -
the Staff's environmental impact statement. To the extent the 3
benefits of plant operation are thus understated, Mr. Eddleman =g has suffered no conceivable harm and his appeal is moot --
i.e., _;
a no claimed comparative cost savings arguably reflect the conclu- -f sion Mr. Eddleman would have urged upon the Licensing Board ;j through his proposed contentions.
Z"-
Second, while there certainly are economic costs of running -'
the plant, those costs translate into benefits of plant operation J z
only in a comparison with the companion generating costs associ- -
ated with alternatives, as the Licensing Board found. While _;
Applicants understand the rejected contentions to challenge the i
" benefits" side of the cost-benefit balance, to the extent Mr.
Eddleman now contends that the " costs" side is understated, he clearly challenges the Commission's findings, which underlie the 1982 amendments to Part 51, that operation of a completed nuclear plant will be more economical than available alternatives.44/
See 46 Fed. Reg. at 39,940-41 (1981); 47 Fed. Reg. at 12,940 (1982).
In short, Mr. Eddleman has advanced no basis upon which to question the Licensing Board's interpretation of 10 C.F.R. 5 51.53(c) (1982). Given the exclusion from environmental impact statements of any claimed benefit from comparative cost savings of operating the nuclear plant, the rejection of these conten-tions c'learly was correct.
III. The Licensing Board Correctly Denied Intervenor Eddleman's Section 2.758 Petition to Waive the Need for Power Rule in this Proceeding A. Introduction Any rule or regulation of the Commission, and the underlying basis for that rule or regulation, is not subject to attack in an individual license proceeding unless a petition is first made to the Licensing Board for an exception or waiver. The sole ground for a petition for waiver or exception shall be that special cir-cumstances with respect to the subject matter of the particular 44/ Operating costs of the proposed plant and alternatives were evaluated at the construction permit stage. See Revised Final Environmental Statement (March 1974), Staff Ex. 6 in that pro-ceeding, at 10-21.
proceeding are such that application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted. The petition is to be accompanied by an affidavit in support of that basis for the pe-tition. Opportunity is provided for other parties to respond to the petition, including the submission of reply affidavits. If the Licensing Board does not determine that a prima facie showing has been made in support of waiver or exception, it must deny the petition. 10 C.F.R. $ 2.758; Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2),
ALAB-218, 8 A.E.C. 79, 89 (1974).
On June 30, 1983, nearly one year after the Licensing Board explained this procedure to him,45/ Mr. Eddleman filed his " Peti-tion Under 10 CFR 2.758 Re Alternatives and Need for Power Rule."
The Eddleman petition sought a waiver of amendments to 10 C.F.R. Part 51 adopted by the Commission on March 22, 1982. See 47 Fed.
Reg. 12940 et seq., Need for Power and Alternative Energy Issues in Operating License Proceedings (March 26, 1982). In essence, the amendments provide that, for NEPA purposes, need for power and alternative energy source issues will not be considered in operating license proceedings for nuclear power plants.46/
45/ Tr. 40-44. See also LBP-82-119A, supra, 16 N.R.C. at 2073 (1982).
46/ In 1984, 10 C.F.R. Part 51 was amended and reorganized. The 1982 amendments with respect to an applicant's environmental re-port (S 51.21), the Staff's impact statement (S 51.23(e)), and permissible hearing issues (S 51.53(c)) are now found, respec-tively, at SS 51.53(a), 51.95(a) and 51.106(c).
. . . . _ . . . . .~ . . . . . . . . . . . . . . . . . . . , . . . . . . - -
M
~3E
-a Mr. Eddleman sought to litigate those issues in this operating (([
==
license proceeding. 23 Responses in opposition to the Eddleman petition were filed
> by the NRC Staff and by Applicants.47/ Mr. Eddleman replied to as b -d3 these responses 48/ and, over five months later, sought leave to ;"
2 file further material in support of the petition.49/ Finally, dj Mr. Eddleman filed a supplement to his petition to address the w
i intervening cancellation of Unit 2 of the Shearon Harris Tg a
facility.50/ On August 3, 1984, the Licensing Board announced ;-
=
g its conclusion that Mr. Eddleman's petition must be denied. The zgg basic conclusion on the petition was issued at that point without 25 elaboration to facilitate planning by the parties for the 13 m upcoming hearing on environmental matters, then scheduled for $$
2:
L( 155 g
g 47/ NRC Staff Response to Intervenor Wells Eddleman's Petition SE
& for a Waiver Pursuant to 10 C.F.R. 9 2.758, August 26, 1983; 33:
Applicants' Response to Eddleman Petition Under 10 C.F.R. S 2.758 Re Alternatives and Need for Power Rule, August 31, 1983. ;;;
di 48/ Wells Eddleman's Response re 2.758 Petition of 6-30-83 on JU Need for Power and Alternatives to Shearon Harris Plant, 14 September 30, 1983. --;
s 49/ Motion to Allow Filing of Affidavit of Dr. John O. Blackburn =EE Concerning Wells Eddleman's 2.758 Petition and Affidavits, March "3Q 7, 1984. Applicants and the Staff opposed the motion. Appli- -=
cants' Response to Wells Eddleman's Motion to Allow Filing of Af- _q fidavit of Dr. John O. Blackburn, March 9, 1984; NRC Staff Re- di sponse in Opposition to Wells Eddleman's Motion to Allow Filing ;
of the Affidavit of Dr. John O. Blackburn, March 23, 1984. The "3 Licensing Board denied the motion as moot, holding that it made ==
no practical difference to its ruling on the petition. LBP-85-5, a slip op. at 51, n.15.
g 50/ Wells Eddleman's Supplement re Effect of Cancelling Harris 2 on 2.758 Petition of 6-30-83, April 16, 1984. -'
))
mm 7E -
-f NE
~1
_ _ _ . . . _ _ _ . . -5
January, 1984. Carolina Power & Light Company, et al. (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-84-29B, 20 N.R.C.
389, 424 (1984). The Licensing Board set forth its reasons for the denial in the Partial Initial Decision on Environmental Con-tentions. LBP-85-5, slip op, at 50-58.
B. The Licensing Board Decision The Licensing Board found that the Eddleman petition failed to make the required showing that application of the regulation in question (referred to as the "need for power rule") to this case would not serve the purposes for which the rule was adopted.
Indeed, the Licensing Board reviewed the Commission's stated pur-poses in adopting the rule, and concluded that "the purposes un-derlying the need for power rule fit this case precisely." Id.
at 51.
The Eddleman petition presented an alternative to operation of the Shearon Harris facility, which was claimed to be economi-cally and environmentally superior. The alternative was a combi-nation of load shifting, energy storage, solar energy and energy saving measures. Four scenaries were discussed in the economic assessment, which addressed only fuel savings because of the pur-ported showing that the capacity from the Harris plant is not needed under the suggested alternative. The sole basis for the petition, then, was Mr. Eddleman's claim that a combination of load-shifting, energy-storage, solar heat and energy saving mea-sures is an environmentally and economically superior alternative to the operation of Shearon Harris.
As the Licensing Board concluded, what is most significant is what the petition did not address. Id. at 54. The petition fundamentally ignored the requirement, under 10 C.F.R. $ 2.758, for a showing that application of the Commission's regulation to this proceeding "would not serve the purposes for which the rule or regulation was adopted." No such showing was made or even at-tempted. Rather, Mr. Eddleman did no more than advance a need for power / alternatives contention with purported affidavit sup-Port.51/
The purpose of the Commission's regulation on Need for Power and Alternative Energy Issues in Operating License Proceedings was to avoid litigation of need for power and alternative energy issues at the operating license stage. The underlying premise behind the regulation, based on the Commission's experience, is that at the operating license stage the NEPA balance overwhelm-ingly supports operation of the nuclear plant compared to the operation of existing fossil fuel capacity. Neither Mr. Eddleman nor Dr. Reeves (the affiant) disputes the necessity of all of CP&L's existing baseload fossil fuel capacity, with the exception of the 705 MW Mayo Unit No. 1, which began commercial operation in March, 1983. See Reeves Affidavit of July 14, 1982, at the Conclusion. Therefore, even assuming the viability of the 51/ Because Mr. Eddleman did not address the legal standard for waiver of the regulation, Applicants did not present their views, by counter affidavits, on the numerous substantive errors which invalidated the bases for the petition.
e citernative energy-saving measures proposed by Mr. Eddleman and tha resulting decrease in system load projections, the premise of tha Commission's regulation would dictate operation of the Harris units in order to disp-lace existing fossil baseload generation (En alternative not even addressed in Mr. Eddleman's petition).
The purpose served by the regulation would thus remain unaltered.
In his petition, Mr. Eddleman simply assumed that 3500 MW of cxisting baseload. coal-fired plants will be operated on the CP&L system until the year 2000. See Eddleman Affidavit at 5. This ignores, and fails to challenge, the Commission's premise that cvsn if a constructed nuclear plant is not needed to meet in-creased energy needs, there.is an economic advantage which opera-tion of nuclear power plants has over available fossil generating
_ plants. See 47 Fed. Reg. 12,940 (1982). In fact, Mr. Eddleman calculated the cost savings of operating the Harris units instead of operating other CP&L units to be $4.03 billion. Eddleman Af-fidavit at 10. While Mr. Eddleman conceded that there is this cconomic advantage, he made the mistaken argument that the sav-ings from hi's own alternative will be greater. See id. The fal-locy.in this comparison, however, is that Mr. Eddleman's alterna-tive included operation of the existing fossil capacity (and not ths Harris units). Had Mr. Eddleman computed his energy-savings
-ccanario on the basis of operating the Harris Plant rather than existing fossil capacity, the computed savings would have been svan greater than he asserted for his alternative. In other words, even if one assumed that no additional capacity is needed on the CP&L system and that Mr. Eddleman's assessment of his citernative was correct, there is still an unchallenged economic !
d vantage, as the Commission found, to operating the nuclear c' '
plent in place of existing fossil capacity.
Thus, without. regard to their merits, the energy savings mansures proposed by Mr. Eddleman do nothing to undermine the prcmise of the Commission's regulation that at the operating license stage operation of nuclear power plants instead of exist-ing fossil plants is justified on a cost-benefit basis by the esvings in operating costs, regardless of the extent to which cyatem capacity may exceed load requirements. In short, Mr. Eddleman claimed he had a cheaper alternative, but he did not challenge the economic advantage which underlies the regulation c ught to be waived. LBP-85-5, slip op. at 55-58.
C. The Appeal The Licensing Board's analysis of the Eddleman petition tracks to a considerable extent Applicants' basic argument in thsir August 31, 1983 response, which the Licensing Board found to be "not only sound but dispositive of the petition." Id. at
- 55. In.his response to Applicants at the time, Mr. Eddleman ap-
.paared either not to understand Applicants' position or to avoid it. Mr. Eddleman characterized Applicants' argument to be that ha had not compared the fuel cost savings from the Harris Plant with the benefits of his alternative.52/ To the contrary, Sjb/ Wells Eddleman's Response re 2.758 Petition of 6-30-83 on Nasd for Power and Alternatives to Shearon Harris Plant, S;ptember 30, 1983, at 1.
r:
l Applicants asserted that since Mr. Eddleman found fuel cost sav-ings-from operating Shearon Harris, it was inconsistent with the Commission's findings on the rule in question for Mr. Eddleman to
'ratain in his analysis CP&L's fossil-fueled capacity.
Mr. Eddleman came closest to grasping the issue when he stated that CP&L's suggestion to run Harris with his alternative was 11-logical because his alternative shows that the Harris capacity is
.not needed.53/ See LBP-85-5, slip op. at 56 n.17. However, Mr. Eddleman still' assumed operation of existing coal-fired ca-pacity (which could be replaced by his alternative instead of rsplacing the Harris plant) and failed to challenge the Commis-sion's finding that the nuclear plant would be used to displace existing coal-fired capacity. Id. at 56.
On appeal, Mr. Eddleman argues in more detail that Appli-cents, and now the Licensing Board, have misread his petition.
Mr. Eddleman begins by quoting the Licensing Board's observation that his alternative is considered only.with reference to meeting increased demand or peak loads (instead of base loads).
-Mr. Eddleman purports to refute this finding with a quote from
'tha beginning of his " Scenario 1," which simply states "[a]s
'shown above, there is no need for Harris capacity." Intervenors' Brief at 25. The Eddleman quote continues with a purported logi-cal deduction that "thus" the only benefit of the proposed plant L is an economic. savings over coal. Mr. Eddleman calls the i
1.
53/ Id. at 3.
t l !
Licensing Board's failure.to consider these statements "in plain
' sight" to be " striking." Id.
What is striking, however, is Mr. Eddleman's totally irrele-vant challenge to this Licensing Board observation.
Mr.'Eddleman's purported showing that Harris capacity is not 4
nasded is an argument that it is not needed to meet peak load.
l L In Mr. Eddleman's own words:
, Dr. Reeves' first affidavit (14 July 1982) demonstrates how neither Harris unit is needed to meet peak load on the CP&L sys-tem....
-Under those conditions, Reeves affidavit
- 1 shows a reduction of 2600 MW in CP&L peaks in the year 1995. This reduction exceeds the combined capacity of both Harris units (1800 MW total), plus Mayo 2 (720 MW). (Reeves #1, pp. 30-31).
At.CP&L's growth rate for peaks under Dr. Reeves' peaks-reducing program, it would take at least 15 more. years to fully utilize the 1800 MW capacity of 2 Harris units....
This completes the explanation of why the Harris plant isn't needed for capacity in the foreseeable future.
- Affidavit in Support of 2.758 Petition Wells Eddleman, June 30, 1983, at 3-4 (footnote omitted).
' Having advanced the argument that the Harris capacity is not nacded to meet peak loads, Mr. Eddleman clearly proceeded to rely
-upon and use for base ~ load capacity CP&L's existing coal. fired plants:
J 9 54-i-
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True base load (arround-the-clock load) will only be about 3600 MW then [1995]. CP&L's existing capacity is over 5000 MW for base load, and includes 3500 MW of baseload coal plants that will still be around in the year 2000.... Thus, there is no base load (year-round) for the Harris units to meet.
....[Y]ou don't build a Harris unit for peaking or intermediate load.
p In sum, a Harris baseload unit (or both units) simply isn't needed to meet CP&L peak loads through the year 2014. This is the principal conclusion of Reeves affidavit #1 (p. 31) and is used in the scenarios comparing costs and benefits below.
Id. at 5 (emphasis added).
Mr. Eddleman's petition has not been misread. He attempted to. establish that the Harris Plant is not needed to meet peak lords, and assumed operation of existing fossil baseload units to m32t'baseload requirements. It makes no sense whatsoever to argue, as Mr. Eddleman does on appeal, that his proposed alterna-tive may be used separately and independently: (1) to replace p2ck loa:Is; and (2) in an analysis which purports to show that it will save even more money than the Harris Plant as a replacement for fossil base load capacity. See Intervenors' Brief at 25-29.
Mr. Eddleman essentially "used up" his alternative in his attempt to displace the Harris facility as a peak load unit. In this at-t mpt, he explicitly assumed continued operation of existing coal plcnts, contrary to the Commission's findings. He cannot, then, una the same alternative anew in an attempt to challenge that Ccmmission finding by showing that the alternative saves even more money than Harris as a replacement for the coal plants.
NEPA does not require or contemplate the kind of fiction-olized, segmented analysis Mr. Eddleman appears to press on ap-penl. The Licensing Board's reading of the Eddleman petition is correct, and the petition was properly denied for failure to meet tha standards of 10 C.F.R. 5 2.758 for waiver of a Commission rsgulation.54/
54/ Mr - Eddleman devotes considerable attention to the Licensing Board's comments, essentially dicta here, on the meaning of
" prima facie" as employed in 10 C.F.R. 5 2.758. Intervenors' Brief at 30-33. As is clear.from the Licensing Board's decision, footnote 16 merely sets forth the standard the Licensing Board wculd have required -- a " substantial showing" -- had it reached tha substantive claims set forth in Mr. Eddleman's petition; the Board did not reach those issues and thus its discussion of
" prima facie" was not dispositive of the petition. LBP-85-5, alip op. at 55 and n.16. Secondly, Mr. Eddleman clearly micperceives the Licensing Board's comparison citation to the Midland decision. In that decision, the Commission was cxplicating its standards for the initial acceptance of energy conservation contentions in construction permit proceedings, clsarly a much more lenient standard than that required to make a prima facie showing under 10 C.F.R. 5 2.758. See Consumers Power l C*mpany (Midland Plant, Units 1 and 2), CLI-74-5, 7 A.E.C. 19, 30-32 (1974); see also Houston Lighting and Power Company (South T0xas Project, Units 1 and 2), LBP-83-49, 18 N.R.C. 239, 240 (1983) (persuasive evidence not bare allegations to satisfy a
- chtwing of unusual and compelling circumstances required for a
. patition under 10 C.F.R. 5 2.758).
l l l
f LIV. :The Licensing Board did not Err in'its Ruling Rejecting as Inadmissible Proposed. Contentions on the Transportation of Spent Fuel to the Shearon Harris Facility A. Description of the Record Below j CCNC and Mr. Eddleman have appealed the Licensing Board's
'dismissalJ of contentions which sought to raise the issue of the potential environmental impacts of transportation of spent fuel from=other reactors to the Harris Plant for the purpose of inter-t im storage. Intervenors' Brief at 34. In LBP-82-119A, the Li-cansing Board considered a number of contentions dealing with the
. cpant fuel " transshipment"' issue, accepted CCNC Contention 4 and i-CHANGE' Contention 9 -- subject-to reconsideration after issuance
.of the draft environmental statement (DES) -- and deferred ruling on proposed Eddleman Contentions 24, 25, 64(d), 64(e) and 126x.
LBP-82-119A, supra, 16 N.R.C. at 2080-81,.2083, 2094, 2100, 2108 L(1982). Subsequently, on the basis of a licensing board's rejec-tion of similar contentions in the Catawba proceeding,55/ Appli-
. cents moved for reconsideration of the Board's decision admitting i
! CCNC 4 and CHANGE 9 and, further,-requested that the Board reject Mr. Eddleman's proposed spent fuel transshipment contentions.56/
.55/ Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
I LBP-83-8B,-17 N.R.C. 291 (1983).
l L '56/ Following the issuance of'the Staff's DES, intervenor L Eddleman. proposed a new spent fuel transportation contention --
L
.Ccntention 25B -- and' reasserted previously proposed Contentions
,. 25, 64(d), 64(e) and 126x. See " Wells Eddleman's Response to l- Stcff.DEIS," dated June 20, 1983, at 18, 25, 29-30.
l
S?o " Applicants' Motion for Reconsideration of CCNC Contention 4
.cnd CHANGE Contention 9 and Applicants' Response to Intervenor
' Walls Eddleman's Contentions Regarding Spent Fuel Transporta- l l
tion,"-dated July 8, 1983 (hereafter " Applicants' Motion for Re-censideration").57/
- The Staff supported Applicants' Motion for Reconsideration.
Sta "NRC Staff Response to Applicants' Motion to Dismiss Conten-tions Regarding Spent Fuel Transportation," dated July 28, 1983 (hareafter "NRC Staff Response"). Responses in opposition to Applicants' Motion were filed by intervenors CHANGE 58/ and Mr.
Eddleman.59/ In its Memorandum and Order (Ruling on Spent Fuel Transportation Contentions and Miscellaneous Motions) ( August 24, 1983) (hereafter " August 24 Memorandum and Order"), the Licensing Board granted Applicants' Motion for Reconsideration, dismissing CCNC Contention 4 and CHANGE Contention 9, rejecting Eddleman
- Contentions 25B, 64(d), 64(e) and 126x, and conditionally re-
.jscting Eddleman Contentions 24 and 25.60/
E7/ The texts of the spent fuel transportation contentions at iccue are reproduced at Appendix A to Applicants' Motion for Re-
'censideration.
!!/ See " Response to Applicants' Motion for Reconsideration of CCNC Contention 4 and CHANGE Contention 9 and Applicants' Re-cponse to Intevenor...", dated July 29, 1983.
19/- Mr. Eddleman's response is found in his " MINI *BRIEF," at pnges 29-31 of a pleading entitled, " Wells Eddleman's filing re 5 fcctors and answer to Staff and' Applicants re DEIS contentions cnd :15AA," dated July 27, 1983.
sO/ Eddleman proposed Contentions 24 and 25 concerned the ade-quncy of security plans for the possible shipment of spent fuel (Continued Next Page)
B. Background Applicants, as part of their application for an operating
~
license,: seek authority to receive and store at-the Harris Plant spent fuel from CP&L's Robinson Unit 2 and' Brunswick Units 1 and-2.pl/~ Applicants are not requesting authority to transship spent (Continued)
Efrom the Brunswick and Robinson facilities to the Harris Plant.
Thase two contentions were~ conditionally rejected absent a ghowing_on Mr. Eddleman's part as to why he did not make a timely
- proffer'of an expert to review transportation security plans.
August 24 Memorandum and Order, at 6-7. Mr. Eddleman attempted to make such a r,howing. " Wells Eddleman's Response to Board 6-24-83 Order.(pp. 6-7) re Spent Fuel Security," dated August 31, 1
1983. Applicants' replied, arguing that (1) the Licensing Board hao-no jurisdiction regarding health and safety issues involved in'the transportation of spent fuel from Robinson and/or Brunswick; (2) proposed Contention 24 constituted an impermissible challenge to the Commission's regulations at 10 C.F.R..l 73.37; (3) Mr. Eddleman had failed to establish any basis with required specificity for the far-fetched scenarios al-Lleged to endanger spent fuel shipments in North Carolina; and (4) in any_ event, Applicants' security procedures for such shipments cro unlikely to be developed prior to issuance of the operating license for the Harris Plant. " Applicants' Reply to Wells Eddleman's Response to. Board'8-24-83 Order (pp. 6-7) re Spent
,Fugl Security" dated-September 29, 1983. The Board rejected pro-
-_poced Contentions 24 and 25 in its Memorandum and Order (Ruling en.Various Safety and' Procedural Questions) (July 27, 1984) at '
'2-4. It does not appear from Intervenors' Brief that the Board's July 27, 1984 Memorandum and Order'is being challenged.
91/ The-application for an operating license for the Harris
. Plant included the request for " authorization to store source,
=spgeial nuclear, and byproduct material irradiated in the nuclear tronctors licensed under DPR-23 [ Robinson], DPR-62 and DPR-71
[ Brunswick Units 1 and 2] and subsequently transported to the Sh: aron Harris , mclear Power Plant site. " Such additional spent fuol' storage was discussed in Applicants' Final. Safety Analysis RcportLand Environmental Report made available for public inspec-tien.' See 47 Fed. Reg. 3898 (January 27, 1982).
4
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fuel from Robinson and Brunswick to the Harris Plant. CP&L al-ready has authority, by virtue of its licenses to operate the R:binson and Brunswick Plants, and by virtue of the general license conferred on it by 10 C.F.R. 5 70.42(b)(5), to transfer the spent fuel "to.any person authorized to receive such special I
nuclear material under terms of a specific license or a general l license or their equivalents . . . ."
At the present time, CP&L has no firm plans to ship spent fuel from its Robinson and/or Brunswick Plant to the Harris Plant.62/ Thus, CP&L has not defined schedules or the modes (i.e., truck or rail) of transportation of spent fuel to the Harris Plant, has not selected routes, and has not requested NRC cpproval of any routes for such shipment. The shipment of spent fuel from CP&L's Robinson and/or Brunswick Plant to the Harris Plant in the future is, however, a possibility. It is Appli-cents' intention that any shipments will be made such that their environmental impacts will be encompassed within the values contained in Table S-4 to 10 C.F.R. $ 51.20. As such, the number of shipments of spent fuel from Robinson and/or_ Brunswick to the Harris Plant, either by rail or by truck, would be within the 62/ For example, Applicant CP&L has recently applied to the Com-mission for authority to conduct with the Department of Energy a d:monstration program of dry spent fuel storage in concrete cilos. If successful, this program could certainly reduce the n2ed for early shipments of spent fuel from the Robinson Plant.
Thus, for many reasons, CP&L's plans at this time are not firm rcgarding possible transshipments of spent fuel to the Harris
-Plant.
l 1
parameters underlying the assumptions to Table S-4. See Affida-vit of L. H. Martin dated July 6, 1983 (attached as Appendix B to Applicants' Motion for Reconsideration).
The Commission has already considered the environmental im-prets of the transportation of spent fuel from Robinson and Brunswick to any facility authorized to receive it in the context of the licensing proceedings for those two facilities. See U.S.
Nuclear Regulatory Commission, Final Environmental Statement Ralated to the Operation of H.B. Robinson Nuclear Steam-Electric Plant Unit 2 (NUREG-75/024), at 5 4.4.2 (April, 1975); U.S. Atom-ic Energy Commission, Final Environmental Statement Related to th7 Continued Construction and Proposed Issuance of an Operating License for the Brunswick Steam Electric Plant, Units 1 and 2, at V-45 to V-55 (January 1974).
C. The Decision and the Appeal The Licensing Board carefully set forth the rationale for
- dicmissing the proposed transshipment contentions. August 24 l
M:morandum and Order at 1-7. In doing so, the Licensing Board referred to the analysis of similar contentions that were re-jccted by a licensing board in Catawba. See note 55 supra. Each crgument before the Licensing Board had been briefed in detail by both Applicants and the Staff. Nevertheless, Intervenors ignored th2 Licensing Board's reasoning, the facts in this case, and Applicants' and the Staff's arguments, and do no more than make the most perfunctory nod to broad statements of law -- without
citation.63/ Intervenors' Brief at 35-36. Intervenors' rcquested relief is for the Licensing Board to " consider the need for [an alleged) hazardous transshipment scheme and its full en-vironmental impact" and " fully consider the availability of envi-rtnmentally less harmful alternatives." Id. at 36.
Intervenors cite as authority for their arguments a case l
involving an amendment to a materials license held by Duke Power Ccmpany. Duke Power Company (Amendment to Materials License SNM-1773 -- Transportation of Spent Fuel from Oconee Nuclear Sta-tion for Storage at McGuire Nuclear Station), ALAB-651, 14 N.R.C.
307 (1981). There, considering the proposed shipment of 300 cp nt fuel assemblies from Duke Power Company's Oconee Plant to its McGuire Plantp4/, the Appeal Board reversed the licensing board's decision holding that preparation of an environmental im-ptet statement was necessary, and found that (1) if carried out without incident, the shipments will have " negligible environ-m:ntal effects;" and (2) the " possibility cf an untoward event at g63 Intervenors' arguments consist entirely of such bromides as the Licensing Board must review all environmental impacts, not just those that somehow upset the cost-benefit analysis," and "the reviewing body must afford the Intervenors the opportunity for hearing to ensure the ' fullest possible consideration of the cnvironment' in reaching the decision on this action." Interve-nors' Brief at 35. The origin of these statements, their context in the facts of a particular case and Intervenors' view of their cpplicability here are left to the imagination.
64/ Such shipments were to have occurred prior to issuance of an cparating license for the McGuire Plant. See Duke Power Company (Amendment to Materials License SNM-1773 for Oconee Nuclear Sta-tien Spent Fuel Transportation and Storage at McGuire Nuclear Station), LBP-80-28, 12 N.R.C. 459, 463 n.1 (1980).
L cny point in the course of the transfer with accompanying serious
~
cnvironmental consequences is extremely remote." Id. at 321.
Further, the Appeal Board rejected intervenors' arguments there that alternatives to spent fuel shipments must be considered.
Th3 Appeal Board held that NEPA does not obligate the NRC "to coorch out possible alternatives to a course which itself will not either harm the environment or bring into serious question tha manner in which this country's resources are being expanded."
Id. at 321-22, citing Portland General Electric Company, (Trojan Nuclear Plant), ALAB-531, 9 N.R.C. 263, 266 (1979).
Intervenors further misuse the Duke Power decision by at-t:mpting to equate the so-called " cascade plan" -- which if it existed at all was found by the Appeal Board not to be before the Commission -- with Applicants' proposal here. Intervenors refer to a "similar scheme" (Intervenors' Brief at 35) and "such a haz-crdous spent fuel transshipment scheme" (id. at 36). Applicants simply have requested authority to store spent fuel from CP&L's cther reactors at the Harris Plant without any definite plans to trcnsship any such spent fuel. Applicants have committed, how-cvsr, that any such shipments would be within the parameters un-d:rlying the assumptions to Table S-4. Affidavit of L. H. Mar-tin, supra. As such, both the actual situation in Duke Power (including shipment of 300 assemblies) and the references to the "coscade plan" are inapposite.
Fatal to Intervenors' arguments are the issues that they have failed to address. Foremost, they ignore the fact that the 63-t
' ,-g_-. . .,-,m. ~ , _ . ,,e-.- .-,--.y..,__----..-4m___. - - - - - - - - - - - - - . . , - . , - - - - - - _- - - - - - - - - -
cnvironmental--impacts of shipments of spent fuel from Robinson ,
cnd Brunswick have already been considered by the Commission.
NEPA does not require duplicative environmental reviews for every licensed activity. August 24 Memorandum and Order at 2; Appli-
[ cents' Motion for Reconsideration at 6-9; NRC Staff Response at 2-3. Intervenors do not address the compelling logic of this holding by the Licensing Board and the substantial precedent cited in' support.
Intervenors do assert that the impacts of shifting fuel from cna reactor to another is outside the Table S-4 analysis, but thoy do not hint as to what additional impacts there might be.
Thoy do not address Applicants' commitment to ship spent fuel within-the parameters underlying the assumptions in Table S-4.
Intervenors have not responded to the Board's suggestion that, if thoy "believe they can make a prima facie showing that Table S-4 chould not apply, identifying with reasonable specificity the en-vironmental impacts that are not adequately accounted for by
- 1. Table S-4, they may file a petition under 10 C.F.R. 2.758."
August 24 Memorandum and Order at 3; Applicants' Motion for Re-consideration at 9-10, 15-18; NRC Staff Response at 3-4.
t When Intervenors, in response'to Applicants' Motion for Re-ecnsideration, earlier attempted to identify particular signifi-cent impacts that would not be encompassed in Table S-4, they could only point to additional loading and unloading of fuel that w:uld be necessitated by interim storage. As the Licensing Board noted below, however, the proposed contentions do not make any j .
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cliegations regarding on-site loading and unloading. These are n3t impacts covered by Table S-4. August 24 Memorandum and Order et 4-5. ,
Further, Intervonors did not address the argument that, even casuming arguendo the transshipment of spent fuel were to double tha Table S-4 values, the result would be insignificant and would not influence the cost-benefit balance. Instead, Intervenors simply assert all. environmental impacts no matter how insignifi-cent must be reviewed. This flies in the face of the " rule of racson" applied to NEPA analyses, discussed supra (section I.C).
With respect to Intervenors' arguments that alternatives to cpsnt fuel transshipments must be considered, as discussed in the centext of the Duke Power decision, supra, because the impacts on tho environment are clearly de minimis, the NRC need not search out possible alternatives. See Applicants' Motion for Reconsid-crntion at 14-15.
In sum, the Licensing Board did not err in its ruling re-jccting as inadmissible proposed contentions on the transporta-tion of spent fuel to the Harris Plant. Applicants have stated thsir intention that any spent fuel shipments from Robinson end/or Brunswick to Harris will be encompassed within the parameters of Table S-4 and thus the radiological impacts will be roflected by the values of Table S-4. No matter how such trans-
! chipments of spent fuel are viewed, the Table S-4 values -- es-tcblished by Commission rule -- cannot be challenged absent a tuccessful petition pursuant to 10 C.F.R. $ 2.758. Shipments of t
cpent fuel from Robinson and Brunswick to Harris, with eventual chipments to a reprocessing facility or final repository, can be viewed analytically as two legs of a journey previously analyzed in the context of the Robinson and Brunswick licensing proceed-ings. As such, any transportation impacts are outside the scope of this proceeding. Even assuming arguendo that there are some incremental, unanalyzed environmental impacts of spent fuel ship-mants.either to or from the Harris Plant, such impacts are encom-pnsced within a multiple of the values of Table S-4 and are clearly insignificant.
CONCLUSION For all of the foregoing reasons, the Licensing Board's de-cisions on environmental contentions should be affirmed.
Respectfully submitted, C.
Thomas A. Baxter, P.C.
John H. O'Neill, Jr., P.C.
Deborah B. Bauser SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 Richard E. Jones CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-6517 Counsel for Applicants Dated: May 9, 1985
May.9, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
.In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Brief in Reply to Intervenors' Appeal From the Partial Initial Decision on Environmental Contentions" were served this 9th day of May, 1985, by deposit in the U.S. mail, first class, postage pre-paid, to the parties on the attached Service List.
l Thomas A. Baxter, P.C.
I
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .. v
,BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD DOCKETED USNRC In the Matter of l 15 MY 13 20 00 CAROLINA POWER & LIGHT COMPANY ) Docket No. 50-400 OL 4
.and~ NORTH CAROLINA EASTERN ) CFFICE CF SECRET /J Y MUNICIPAL POWER AGENCY ) 00CKEigG & ERVici
)
(Shearon Harris Nuclear Power ')
Plant) ) -
1 SERVICE LIST Thomas S. Moore, Esquire Charles A. Barth, Esquire Chairman .
Janice E. Moore, Esquire i
Atomic Safety and Licensing- Office of Executive Legal Director Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commmission Washington, D.C. 20555 l Washington,'D.C. 20555 Docketing and Service Section ,
- .Dr.-Reginald L. Gotchy Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Daniel F. Read, President CHANGE ~
Mr. Howard A. Wilber P.O. Box 2151 Atomic Safety and Licensing Raleigh, North Carolina 27602 Appeal Board U.S.. Nuclear Regulatory Commission Washington, D.C. 20555 John D. Runkle, Esquire Conservation Council of Jcmes L. Kelley, Esquire North Carolina A m Safety and Licensing Board Chapel Hill, North Carolina 27514
. 'U.S. Nuclear Regulatory Commission
. Washington, D.C. 20555 M. Travis Payne, Esquire Edelstein and Payn,e
~'
P.O. Box 12607
. tom c Saf ty an Licensing Board Raleigh, North Carolina 27605 L U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Richard D. Wilson 729 Hunter Street Dr. James H. Carpenter Apex, North Carolina 27502 l
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
- -Washington, D.C. 20555 t
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4 Mr. Wells Eddleman 718-A.Iredell Street Durham, North Carolina 27705 Richard E. Jones, Esquire Vice President and Senior Counsel Carolina Power & Light Company P.O. Box 1551 Raleigh, North Carolina 27602 Dr.= Linda W. Little Governor's Waste Management Board 513 Albemarle~ Building 325 North Salisbury Street Raleigh, North Carolina 27611 Bradley W. Jones, Esquire U.S. Nuclear Regulatory Commission Region II 101 Marrietta Street Atlanta, Georgia 30303 Mr. Robert P. Gruber Executive Director Public Staff - NCUC P.O. Box 991 Raleigh, North Carolina 27602 Administrative Judge Harry Foreman Box 395 Mayo University of Minnesota .
Minneapolis, Minnesota 55455 4
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