ML20236B403
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9/20 7G g-UNITED STATES OF AMERICA NUCLEAR REGilLATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PACIFIC GAS Af!D ELECTRIC COMPANY Docket Nos. 50-275 0.L.
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50-323 0.L.
(Diablo Canyon Nuclerr Power Plant,
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Units Nos. 1 and 2)
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NRC STAFF REPLY TO INTERVENERS' MOTION TO ADD NEW C0"TENTIONS In a pleading dated September ~ 7,1976, Scenic 3horeline Preservation Conference, Inc., San Luis Obispo Mothers for Peace, Sandra (;lver, Ecology Action Club and John J. Forster (Interveners) moved that three additional contentions be added to the already existing environmental contentions to be heard on October 13, 1976.
For the reasons stated below, the Nuclear Regulatory Commission Staff (Staff) opposes the addition of contention 1 as a safety question, agrees that contention 2 would be a proper contention for the safety hearing, and opposes the addition of contention 3 as an environmental contention.
I.
Backaround The Notice of Opportunity for Hearing in this case was published by l
the then Atomic Energy Commission on October 19, 1973 (38 Fed. Reg. 29105). That notice advised, inter alia, that, "any person whose interest may be affected by this proceeding may file a petition to o
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intervene with respect to the issuance of the facility operating licenses" by filing a petition to intervene setting forth, in accordance with 10 C.F.R. s2.714, that person's interest in the proceeding, how that interest my be affected by,the results of.the proceeding and the contentions of the party.
Petitions to Intervene were to be filed by 38 Fed. R_ea. 29106.
Thus, Interveners' instant November 19, 1976.
e attempt to raise additional contentions is almost three years late.
II.
Good Chuse Under 10 C.F.R. 52.714 For the Interveners' three proposed additional contentions to be 1
accepted by the Atomic Safety and Licensing Board at this late date, l
the Interveners are required by 10 C.F.R. 62.714 to "make a substantial
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l showing of good cause for failure to file on time."
Interveners have advanced as a general justification for the submission I
of new contentions out of time the fact that counsel and funding have only recently been obtained.
While the Staff is not pei suaded on the basis of Interveners' motion that these facts give rise to an adequate justification for a late filing of contentions, we think it unnecessary for the Board to 1
decide that question since the proper disposition of each of the three proposed contentions turns upon more specific considerations.E E n this regard, the Waterford case is cited by Interveners for the I
proposition that recent retention of counsel by citizen interveners constituted gcod cause for a grant of an extension of time.
- However, the facts of inat case were concerned with allowing recently retained counsel the time needed to assimilate the facts of the case in order to prepare a brief for the appeal board.
Showing of good cause for filing late contentions was not at issue.
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III.
Proposed Contention 1 SI Interveners' Proposed Additional Contention 1 is stated as follows:
1.
Whether the Environmental Impact Statement i
adequately assesses all adverse environmental impacts that could occur.from credible earthquake i
caused accidents, including, but not limited to, Class 9 accidents, given the high potential seismicity of the site and the current seismic design and construction of the Diablo Canyon nuclear plant.
Interveners' first contention, which concerns the " adverse environ-
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mental impact that could occur from earthquske caused accidents, including, but not limited to, Class 9 accidents," is, in effect, an effort to re-raise the same issues which were espoused in the Inter-venors' August 4,1976 Motion to Delay the Evidentiary Hearings.
We recognize that the seismic situation does involve relatively 4
new information for the Diablo Canyon Plant (and is still in a state of flux at this time).
But as pointed out in the Staff" Answer to Inter-venors' Motion to Delay Evidentiary Hearing" dated August 17, 1976, the issue of the environmental acceptability of a seismically-induced class 9 accident is without merit.
If it were shown by the Interveners that a substantial threat existed to the public health and safety at Diablo Canyon (and a seismically-induced class 9 accident SI Although Interveners' Counsel has agreed in a telephone conference call among the Board, the Intervenor and Applicant that proposed contenticrs 1 and 2 will not be ripe until the safety hearing, the admissibility of those contentions is addressed in this pleading.
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would be such a threat) the unsafe condition would be required to be remedied before this plant were licensed.
In such circumstances, the additional step of assessment of the environmental effects of the i
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accident would be a useless exercise.
While we believe the issue is a futile one, we would have no objection to the Board's denial of the motion without prejudice to the Interveners' raising it again at the end of the safety hearings if:.(1)it l
is shown that there is a credible or realistic probability of a seismicallyinducedclassnine'accidentatDiabloCanyonand(2) the Atomic Safety and Licensing Board decides that it will license s
the plant despite the fact that there could be a class 9 accident.
IV.
Contention 2 Interveners' proposed added contention 2 is stated as follows:
2.
Whether the Environmental Impact Statement adequately considers the adverse environmental impacts of transporting nuclear fuel to and fron the plant, storing fuel at the plant, reprocessing i
radioactive waste from the Diablo plant at i
reprocessing plants, and disposing of the radio-active waste from the Diablo Canyon plant, including, but not limited to, adverse environmental impacts produced by seismicity.
The NRC Staff does not oppose the admission of proposed contention number 2 as listed above.
However, it should be understood that the bulk of the contention will be resolved by the Commission's generic hearings on the fuel cycle.
Thus, the i
only issue of relevance for the upcoming safety hearings will be the issue of the effect of seismicity on the local transportation of fuel to and from Diablo Canyon and storage of new and irradiated fuel at the l
Station.
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Proposed Contention 3 Interveners' proposed additional contention 3 is stated as follows:
3.
Whether the Environmental Impact Statement adequately considers energy conservation and related reductions in energy demand and energy supply from alternate sources both'as alternatives to operation of the Diablo Canyon n0 clear plant and as elements of the NEPA cost-benefit balance.
The Staff opposes the addition of proposed contention 3 concerning energy conservation and alternative sources of power less than one month before the environmental hearing ~s.
At the outset, the. Staff notes that the issue of energy conservation was raised and thoroughly litigated at the environmental hearing on Diablo Canyon, Unit 2, j
held pursuant to 10 C.F.R. Part 50, App. D, Section B in March of 1974.
At that environmental hearing, the issues of alternative
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energy sources, need for power, conservation of residential and
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commercial energy consumption (including energy taxes, inverted rate structure, improved efficiency of appliances, insulation and building design and utilization of waste heat), energy conservation in industry, i
revision of promotional practices, and revisions of utility rate bases and pricing of electricity were heard.
In short, the issues of conserva-tion and energy alternatives were thoroughly explored.b l
8 Scenic Shoreline Conference, Inc., Intervenor in this proceeding, i
was a party to that former proceeding.
Pacific Gas and Electric Company (Diablo Canyon.1;uclear Power Plant, Unit 2), LBP-74-60, 8 AEC 277, 278 (August i, 1974).
Scenic Shoreline Diablo Canyco, supra, 8 AEC 288-300.
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Interveners cite the Aeschlinan-decision in support of their position.
lieither the facts nor the law in Aeschliman support Interveners' position.
In fact, Aeschliman dictates that Interveners' motion be denied.
In Aeschliman the Court objected to the fact that the Board refused to entertain energy conservation contentions in an environmental hearing on an application for a construction permit.
As noted, energy conservation issues were fully explored at the environmental hearings on the application for a construction permit for Diablo Canyon Unit 2, and Interveners have not suggested any reason why the issues warrant re-examination at"this time.
In short, what has already occured with respect to the instant facilities is precisely what the Court in Aeschliman stated should have occurred with respect to the tiidland facilities Conclusion for the reasons stated above, the f1RC Staff asks that proposed additional contention 1 be denied, that proposed additional contention 2 be admitted as a contention in the safety hearing, and that proposed additional contention 3 be denied in its entirety.
Respectfully submitted,
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J.\\LL
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L~_ Dow Da vi s Counsel for 11RC Staff Dated at Bethesda, Maryland this 20th day of September,1976 Y Aeschlinan, et. al. v. f1RC, Slip Op. fio. 73-1776 (D. C. Cir.,
July 21,1976].
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William P. Cornwell Atomic Safety and Licensing P. 0. Box 453 Appeal Board Morro bay, California 93442 U. S. Nuclear Regulatory Conmission Washington, D. C. 20555 Paul C. Valentine Atomic Sa'ety and Licensing 400 Channing Avenue Palo Alto, California 94301 Board Panel U. S. Nuclear Regulatory Commission Yale I. Jones, Esq.
Washington, D. C.
20555 100 Van Ness Avenue Docketing and Service Section 19th Floor San Francisco, California 94102 Office of the Secretary of the Commission U. S. Nuclear Regulatory Commission James Geocaris, Esq.
Center for Law in the Washingtcn, D. C.
20555 Public Interest 10203 Santa Monica Drive Los Angeles, California 90067 Brent Rushforth, Esq.
s Center for Law in the
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N Public Interest 10203 Santa Monica Drive Los Angeles, California 90067 I
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James R. Tourtellotte Assistant Chief Hearing Counsel 4
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