ML20236C244
| ML20236C244 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/08/1989 |
| From: | Lewis S, Woodhead C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#189-8276 87-554-OLA, LBP-89-07, LBP-89-7, OLA, NUDOCS 8903220041 | |
| Download: ML20236C244 (14) | |
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'i?W UNITED STATES'0F AMERICA NUCLEAR REGULATORY COMMISSION 89 MAR 13 A10:31 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l
grrg uuLn.
In the Matter of GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION, ET AL.
Docket No. 50-320 OLA ASLBP No. 87-554-OLA (ThreeMileIslandNuclear (Disposal of Accident-Station, Unit 2)
GeneratedWater)
NRC STAFF RESPONSE IN OPPOSITION TO THE APPLICATION FOR STAY FILED BY JOINT INTERVENERS Stephen H. Lewis Senior Supervisory Trial Attorney Colleen P. Woodhead Counsel for NRC Staff March 8, 1989 8903220041 890308 PDR ADOCK 05000320 G
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UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION, ET AL.
Docket No. 50-320 OLA ASLBP No. 87-554-0LA (ThreeMileIslandNuclear (DisposalofAccident-Station, Unit 2)
Generated Water)
NRC STAFF RESPONSE IN OPPOSITION TO THE APPLICATION FOR STAY FILED BY JOINT INTERVENERS Stephen H. Lewis Senior Supervisory Trial Attorney Colleen P. Woodhead Counsel for NRC Staff March 8, 1989
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March 8, 1989
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UNITED STATES OF AMERICA NUCLEAR REGULATORY. COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION, ET AL.
Docket No. 50-320 OLA ASLBP No. 87-554-OLA (Three Mile Island Nuclear (DisposalofAccident-Station, Unit 2)
GeneratedWater)
I NRC STAFF RESPONSE IN OPPOSITION TO THE APPLICATION FOR STAY FILED BY JOINT INTERVENERS I.
INTRODUCTION 1/ ated February 20, By means of an incomplete and unsigned document d
1989, the Joint Interveners (JI) in this proceeding concerning the disposal of the accident generated water (AGW) at the Three Mile Island Nuclear Station, Unit 2 (TMI-2), applied to the Atomic Safety and Licensing Appeal Board for a stay of the Final Initial Decision (LBP-89-07) of the Atomic Safety and Licensing Board issued February 2,
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The Application ends on page 7 seemingly in the midst of a quote and with no conclusion or signature. To ascertain whether some additional pages may have been omitted, Staff counsel placed a call to Joint Interveners' representative and was advised that the document recaived is the full Application and that there are no additional n,w The Application fails to comply with the formal requirements for documents set forth in 10 C.F.R. 6 2.708 in the rather than double-spaced, and 3) gned, 2) it is typed single-spaced, following respects:
- 1) it is unsi the top and bottom margins are less than the mininum 1 1/4 inches required.
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1989(hereafter" Application").2/ The NRC staff (Staff) hereby submits its response opposing the Application for the reasons discussed below.
II. DISCUSSION l
A.
Legal Standards for Stay of a Decision' The Commission's Rules of Practice set out in 10 C.F.R. 5 2.788(e) i the criteria for granting of a stay of a Licensing or Appeal Board decisioc. The criteria are (1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether the party i
will be irreparably injured unless a stay is granted; (3) whether the granting of a stay would harm other parties; and (4) where the public interest lies.
None of these factors is necessarily dispositive, but the most significant factor in deciding whether to grant a stay is whether irreparable injury will occur absent a stay. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, at 804 (1984); Alabama Power Co. (Farley Nuclear Plant, Units 1 and 2),
CLI-81-27, 14 NRC 795, at 797 (1981). A party must reasonably demonstrate, rather than merely allege, irreparable harm. Philadelphia ElectricCo.(LimerickGeneratingStation, Units 1and2),ALAB-814,22 NRC 191, at 196 (1985). The strength of a movant's showing on one of the stay factors determines how strong the showing must be on the other
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Although the caption of the JI Application does not state that it was filed before the Appeal Board, JI state in "SVA/TMIA'S COMMENTS TO THE COMMISSION CONCERNING WHETHER THE DECISION OF FEBRUARY 3, 1989 SHOULD AWAIT ADMINISTRATIVE APPELLATE REVIEW," (February 20,1989) that the Application was filed before the Appeal Board.
- Indeed, under 10 C.F.R. 6 2.788(f) an application for a stay of a Licensing Board decision must be filed before either the Appeal Board or the Licensing Board.
_ factors to justify a stay.
Public Service Co. of New Hampshire (Seabrook
)
Station, Units 1and2),ALAB-865,25NRC430,at435(1987).
Pursuant to 6 2.788(b), a stay application must contain a " concise f
l statement of the grounds for stay." "To the extent that an application for a stay relies on facts subject to dispute," the application must.
contain " appropriate references to the record or affidavits by knowledgeable persons." $ 2.788(b)(4). Affidavits that are relevant to the factors for a stay, will be considered by the appellate tribunal ruling on the stay.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-356, 4 NRC 525, at 531-35 (1976).
B.
The Application for Stay j
The JI have in general failed to address the Board's reasoning underlying the rulings and conclusions of which they complain. JI allege seven errors in the Initial Decision.
Since the assertions of error are overlapping, the Staff will address with respect to each asserted error the major point (s) raised therein.
1.
Whether the Moving Party Has Made A Strong Showing That It Is Likely To Prevail On The Merits First, JI state that the Licensing Board erred in not permitting litigation of contention 2 while at the same time JI state that Contention 2 was admitted for litigation following the Board's ruling on a motion for summary disposition. Application at 1. 3/ In point of fact, Contention 2
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The Board admitted Contention 2 as asserting that "The EIS fails to comply with the requirements of the National Environmental Policy Act (42 USCS 4332 n.29).
The NRC failed to conduct conclusive risk / benefit analysis of the 'No Action Alternative.'" See LBP-88-23, 28 NRC 178, at 185 (1988).
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ - _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _. was fully litigated in this proceeding, with the Board finding that JI's alternative was not obviously superior to the Licensee's proposal.
Ir.itial Decision at 7.
JI cite Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976) for the proposition that the Board improperly placed a burden on them of identifying clearly what their alternative was to the Licensee's proposal.
Application at 2.
JI refer to the Court of Appeals' statement that an Intervenor need only bring to the Commission's attention sufficient information regarding an alternative under NEPA to stimulate the Commission's consideration of the alternative.
547 F.2d at 628.
However, this holding was overturned in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 US 519 (1978), where the Supreme Court found that an Atomic Safety and Licensing Board had acted properly when it imposed a
" threshold test" requiring the intervenor to provide some indication that an alternative was feasible before the NRC staff had to evaluate that alternative in its environmental impact statement. 435 US at 549-55.
While Vermont Yankee is not dispositive of the question of the proper burden on JI as to identification of their alternative, it clearly does not support JI's claim that an improper burden was imposed on it.
JI also complain about the Board's ruling that the issue was not whether the PEIS (Staff Exhibit 2) adequately considered their alternative, but whether the full " record of decision" before the NRC adequately considered their alternative. Tr. 104.
JI do not address, however, the Board's reliance on 10 C.F.R. 66 51.102(c) and 51.103(c),
under which the agency's NEPA record includes the Initial Decision, which may supplement and amend the PEIS.
Initial Decision at 100-01.
In sum, 1
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ol do not demonstrate under their first point that there is a strong l
l likelihood of their prevailing on any of these points on anpeal.
Secondly, JI claim the Board erred in adapting and applying the l
"obviously superior" O standard because until the hearings JI had not offered a preferred alternative. Application at 2.
Added to this, JI l
state they developed an alternative "under duress" at hearing and were burdened with showing its obvious superiority.
Id. JI argue that their alternative (storage on-site for an indefinite period) is "to be equated with the site already developed [whereas] the Licensee's proposal...is a new proposal." Id. JI cite New England Coalition on Nuclear Pollution (NECNP) v. NRC, 582 F.2d 87 (1978) as support for this statement.
JI do 1
not explain why they apply language in NECNP that is only relevant to proposed construction sites for nuclear power plants. The NEPA standard of "obviously superior" is based on the fact that (1) an applicant's proposal would have received more intense scrutiny than would have been applied to alternatives to the proposal and (2) cost / benefit analysis is inherently imprecise, with the result that more adverse information would have been developed regarding the proposal than any alternative. See, NECNP V. NRC, 582 F.2d at 95, discussed 1.n LBP-88-23, 28 NRC at 193.
l These factors dictate that before a proposal is rejected on the ground a
that there is a better alternative, that alternative must be shown to be obviously superior.
It is simply this standard that the Board properly applied to the "no action alternative" in Contention 2.
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JI refer to LBP-88-23, 28 NRC at 183-84, where the Licensing Board describes applicable legal standards concerning consideration of alternatives to the proposed action before the agency.
_ _ _ _ _ _ _ _ _ _ _ _ Nor do JI demonstrate likelihood of prevailing on a claim that they were given insufficient notice that they had the burden of going forward with respect to demonstrating that their alternative is obviously l
superior. The Board not only set forth the applicable law in its August 1988 order on summary disposition (LBP-88-23, 28 NRC at 183-84), t>ut explained at the beginning of the hearing the nature of the burden on JI.
Tr.91-108.
The third and fourth allegations of error address the same subject by taking issue with the Licensing Board's description of the alternative presented at hearing and the costs of the alternative.
Application at 3. JI object to the Board's description of the alternative since they claim they did not specify an alternative. Id. JI assert that the Board incorrectly proceeded on the basis that the JI alternative called for onsite storage for at least thirty years, followed by eventual disposal.
Id.
But JI do not counter the Board's reasoning (Initial Decision at 29-30) that this understanding of the JI alternative was directly based upon JI's statements at the Special Prehearing Conference and their responses to interrogatories.
JI presented no estimates in the proceeding of the costs of either the Licensee's proposal or their alternate proposal.
Initial Decision at 74. Thus, there is nothing in the record to demonstrate that they are likely to be able to demonstrate on appeal that the cost estimates in the record are unreasonable.
In their fifth allegation of Board error JI claim that the Board erred in applying 10 C.F.R. Appendix I to determine whether the releases from the proposed evaporator / vaporizer would be "as low as reasonably
L achievable" (ALARA). Application at 3-4.
Appendix I is the Commission's l
implementation of the ALARA objective for nuclear power reactors and the Board set forth its reasoning for applying Appendix I to this amendment l
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application.
Initial Decision at 7-9, 79-80. JI vigorously assert that 1
ALARA principles should apply to the choice of 6 method for disposal of i
the AGW, but have failed to demonstrate any reason why the Board's use of Appendix I is likely to be overturned on appeal.
The sixth assertion is that the Board erred in failing to discuss the benefits of the disposal of the AGW, but the only record citation for this assertion is to a Staff witness who, in fact, discussed the benefit of disposal. Application at 4.
Although JI disagree with the Board as to the benefit to be gained from approval of the Licensee's proposal, nothing set forth in this alleged error demonstrates a likelihood of overturning the Initial Decision on appeal.
Finally, JI assert error by the Board in rejecting testimony presented by four JI witnesses during summary disposition procedures and at hearing. Application at 5.
JI argue the testimony was relevant, and l
have attached an affidavit N rejected by the Board during summary disposition proceedings, but do not explain the relevance of the affidavit to the question of whether a stay should be granted.
Indeed, no attempt
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JI have also attached new testimony from two JI witnesses (Drs.
Piccioni and Huver) who argue against findings in the Initial Decision, as well as documents and newspaper articles relating to effects of the 1979 TMI-2 accident. None of these documents support the assertions in the Application.
_ _ _ _ _. whatsoever is made to show why the rejection of the affidavit by the Board was legal error.
See LBP-88-23, 28 NRC at 203-04, 220-21, 223.
In sum, the JI have made seven confused and contradictory assertions of legal error by the Licensing Board but have not shown that they have valid claims which could succeed on full briefing during appeal.
Consequently, JI have not met the first criteria for stay by making a strong showing that they are likely to prevail on the merits of an appeal.
The first factor should weigh heavily against issuance of a stcy.
2.
Whether The Party Will Be Irreparably Injured Unless A Stay Is Granted Rather than claiming injury to themselves, JI argue injury to the public by evaporation of the AGW on the ground that no level of radiation exposure is assumed to be safe. Application at 5.
JI refer to a statement by the ICRP that exposure to radiation is acceptable if it is as low as reasonably achievable, which, again, JI believe to be somehow different from the Appendix I comparison used by the Licensing Board.
Beyond the general claim of harm from any and all levels of radiation, JI make an unsupported assertion of additional harm to the public exposed to the radioactive releases during the accident at TMI-2, apparently in an attempt to allege cumulative dose. Application at 6. JI conclude by implying that the requirements of NEPA have not been met without explaining how this is so in the face of the PEIS analysis of the disposal of the AGW and the litigation of the several environmental issues raised by JI.
In short, JI have failed entirely to show any harm which could occur to the JI if a stay is not granted.
On the contrary, the JI, by reference to the ICRP statement, appear to agree with the reasoning in the
! Initial Decision, that releases which are ALARA are acceptable. The second J
factor in considering a stay should weigh against the JI.
3.
Whether The Granting Of A Stay Would Harm The Other Parties JI allege that the continuing cleanup at THI-2 shows there is no l
urgency to the start of the disposal of the AGW. The Licensee has stated in comments to the Commission that the evaporator-vaporizcr system will not be ready to begin operation until early summer of 1989. 5/ However, although there is no immediate need for the license amendment, it is possible that the appeal process will not be completed by the time the 1
L4ensee is able to begin evaporation. The Staff's response to JI's appeal brief is not due until May 8, 1989. Accordingly, grant of the stay would have some potential for harm to the Licensee's interest in commencing evaporation of the AGW as soon as the system is operational and the Staff has approved its operation. Thus, the third factor does not support the grant of a stay, l
1 4.
Where The Public Interest Lies The JI assert that the public near TMI-2 has voted against evaporative disposal of the AGW, that such disposal is without precedent, and that the public interest is against disposal. Application at 6-7.
However, JI have failed to address or to demonstrate how the public would be harmed by permitting the Initial Decision to become immediately A
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" Licensee's Comments on Immediate Effectiveness", February 21, 1989,
- p. 5.
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effective, which is the subject of the Application.
Consequently, the j
fourth factor does not support the Application.
C.
Summary The JI have indicated nothing in the Initial Decision which could be construed as legal error. Thus, JI'have failed to make a strong showing of likely success on appeal.
In addition, JI have not identified the harm which could occur if a stay is not granted. Thus, on the two most important factors in determining whether to grant a stay, JI's Application is fatally deficient. This, together with failure to present a strong showing on the third factor or any support for a stay in regard to the fourth factor, results in an Application devoid of merit. Therefore, it should be denied.
III. CONCLUSION For the reasons stated, the " Application for A Stay of the Effectiveness of the Final Initial Decision LBP-89-07, February 2, 1989" filed by Joint Interveners should be denied.
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Respectfully submitted,
.#& 7/. %m Stephen H. Lewis Senior Supervisory Trial Attorney
!!n Colleen P. Woodhead Counsel for NRC Staff Dated at Rockville, Maryland this 8th day of March, 1989, lL_________-__
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(?N?
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'89 ttAR 13 A10:31 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD..
j Duc citr
.m In the Matter of GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION, E_T AL.
Docket No. 50-320 OLA I
ASLBP No. 87-554-0LA (Three Mile Island Nuclear (DisposalofAccident-Station, Unit 2)
)
GeneratedWater) l CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN OPPOSITION TO THE APPLICATION FOR STAY FILED BY JOINT INTERVENERS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 8th day of March, 1989:
Peter B. Bloch Esq., Chairman
- Thomas A. Baxter, Esq.
Administrative Judge Ernest L. Blake, Jr., Esq.
Atomic Safety and Licensing Board Shaw, Pittman, Potts & Trowbridge U.S. Nuclear Regulatory Commission 2300 N Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20037 Dr. Oscar H. Paris
- John R. McKinstry Administrative Judge Assistant Counsel Atomic Safety and Licensing Board Commonwealth of Pennsylvania U.S. Nuclear Regulatory Commission 505 Executive House Washington, D.C.
20555 P. O. Box 2357 Harrisburg, PA 17120 Mr. Glenn 0. Bright
- Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board BoardPanel(1)*
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Atomic Safety and Licensing Appeal Docketing and Service Section*
i Panel (5)*
Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Susquehanna Valley Alliance Three Mile Island Alert c/o Ms. Frances Skolnick 315 Peffer Street 2079 New Danville Pike Harrisburg, PA 17102 Lancaster, PA 17603
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! Mr. Robert E. Rogan Richard P. Mather Director, Licensing &
Department of Environmental Nuclear Safety, TMI-2 Resources GPU Nuclear Corporation 505 Executive House P.O. Box 480 Harrisburg, PA 17120 l
Middletown, PA 17057-0191 Adjudicatory File
- Jay Gutierrez, Esq.*
Atomic Safety and Licensing Board Regional Counsel U.S. Nuclear Regulatory Commission
~*
USNRC, Region I Washington, D.C.
20555 475 Allendale Road King of Prussia, PA 19406 Thomas M. Moore
- Atomic Safety and Licensing Appeal Christine N. Kohl, Chairman
- Board Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Commission Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission i
Washington, D.C.
20555 l
Howard A. Wilber*
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Stephen H. Lewis Senior Supervisory Trial Attorney-I l
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