ML19305D737

Comments in Opposition to Township of Lower Alloways Creek 800325 Request for Suspension of Issuance of OL Per 10CFR2.206.Urges Denial Due to Untimeliness of Petition & Inadequacy of Allegations Re Noncompliance W/Nepa Rules

ML19305D737
Person / Time
Site:	Salem
Issue date:	04/11/1980
From:	CONNER, MOORE & CORBER, Public Service Enterprise Group
To:	Office of Nuclear Reactor Regulation
Shared Package
ML19305D726	List: ML19305D725 ML19305D737
References
NUDOCS 8004150469
Download: ML19305D737 (8)

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COMMENTS OF .!

PUBLIC SERVICE ELECTRIC AND GAS COMPANY, ET AL., l ON THE REQUEST OF LOWER ALLOWAYS CREEK TOWNSHIP TO j THE DIRECTOR OF NUCLEAR REACTOR REGULATION PURSUANT TO i 10 C.F.R. 52.206 FOR A " SUSPENSION" OR " MORATORIUM" i ON THE ISSUANCE OF AN OPERATING LICENSE FOR SALEM NUCLEAR GENERATING STATION, UNIT 2 i

Background

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On March 25, 1980, Samuel E. Donelson, Mayor of the ,

Township of Lower Alloways Creek, "a municipal unit of .

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government in Salem County, N.J. (" petitioner") , "- sub- ,

mitted a " Request for Suspension or Moratorium on the Is-suance on (sic] the Operating License for Salem Unit #2"

(" petition") to the Director of Nuclear Reactor Regulation I

(" Director") of the Nuclear Regulatory Commission ("NRC" or  !

"Cnemission") pursuant to Section 2.200 of Subpart B, Part j 2/ (

2, Title 10, Code of Federal Regulations.""' In accordance l with the Commission's Rules of Practice, the Director is  !

treatir.g the petition as a request to institute a proceeding l

pursuant to 10 C.F.R. 52.206. Public Service Electric and j Gas Company, et al., (" Applicant") , the holder of Construc-  !

tion Permit No. CPPR-53 for Salem Nuclear Generating Station i 1

(" Salem"), Unit 2 and applicant for an operating license for l

that unit, opposes the relief sought on the grounds that

_1/ Petition at Paragraph 1.

_2/ Id. at Paragraph 5. While the patition is captioned

'Tefore the Atomic Safety and Licensing Board," this appears to be in error, as it is addressed to the Director, and there is no Atomic Safety and Licensing Board constituted with jurisdiction over Salem Unit 2 which could consider the petition.

g 004150L < Abh;

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k petitioner has failed to satisfy the requirements for the -

r institution of a proceeding pursuant to 10 C.F.R. 32.202 for the issuance of an order to show cause and has failed to demonstrate any grounds for the extraordinary relief requested, i.e. , a " suspension" or " moratorium" on the issuance of an operating license for Salem Unit 2. Moreover, even assuming, arguendo, that the petitioner's assertions regarding the Unit 2 spent fuel pool have any merit, the requested remedy bears no relationship to any alleged deficiency; there is no reason to hold up the issuance of an operating license for Unit 2. Even were the assertions contained in the petition l taken as true, nothing is set forth which could not be ac-commodated by the issuance of the operating license for Unit  !

2 with minor changes.

Discussion The petition is untimely. Petitioner has been aware of Applicant's plans to increase the storage capacity of the Salem Unit 2 spent fuel pool for well over two years by (

virtue of its participation in ths NRC proceeding relating to a request to amend the operating license for Salem Unit 1  !

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to install increased capacity racks,- but has chosen to j

_3/ See Petition for Leave to Intervene by the Township of Lower Alloways Creek dated March 9, 1978 in Docket '

50-272. The petition mistakenly states that the pro-caeding involves an application "to place storage racks in the spent fuel pool . . . in Salem Unit #2." While it has considered impacts associated with the modifica-i tion.of both pools, the Atomic Safety and Licensing Board l in that proceeding is clothed only with jurisdiction by l l 'the Commission to make a decision with regard to Salem l Unit 1.

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l wait until the very last moment in the Commission's review of the Unit 2 operating license to submit the petition.

Nothing in the way of significant new information has been 4/

presented to justify the laches of the petitioner. -

Licensee submits that in these circumstances, such laches is sufficient to defeat the request; the granting of the requested relief at this time would severely prejudice the rights of Applicant because of possible interference with the Commission's imminent consideration of the issuance of an operating license for the unit. [

The petition is also inadequate on its face because it fails to set forth the specific facts and circumstances required under 10 C.F.R. 52.206 in a petition for an order to show cause. The petition is, in reality, no more than a statement of petitioner's disagreement with the status of generic rulemaking by the Commission and various Commission precedents and directives relating to the storage of spent fuel. An examination of the pertinent portions of the petition demonstrates its deficiencies in this respect.

In Paragraph 4 of the Petition, it is averred that "the ,

potential long term defacto storage of spent fuel at Salem Unit il and #2 has no n received environmental analysis as required under the National Environmental Policy Act."

Petitioner's premise is incorrect since the request for j See Georgia Power Company (Alvin W..Vogtle Nuclear

. Power Plant, Unit Nos. 1 and 2), DD-79-18, 10 NRC 617, 622 (1979).

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l storage of spent fuel at Salem Unit 2 is that associated .i with the term of the operating license and would therefore

, not constitute permanent storage. In any event, the Com-mission has chosen to deal generically with all possible j issues with regard to:

. . . its degree of confidence that radioactive wastes produced by licensed {

nuclear facilities will be safely dis- l posed of offsite, to determine when any l such disposal or off-site storage wil' i be available, and if disposal or off-  !

site storage will not be available  !

until after the expiration of the  !

licenses of certain nuclear facilities, }

determine whether the wastes generated  !

by those facilities can be safety stored  !

on-site until such disposal is available. _5/  !

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Thus, all matters related to possible "long term storage"  !

I have been made the subject of a rulemaking proceeding by the  !

Commission and they are not properly raised here. -6/ - As i

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_5/ Storage and Disposal of Nuclear Waste; Prehearing Conference, 45 Fed. Reg. 3056 (January 16, 1980); '

See also Storage and Disposal of Nuclear Waste; Notice  ;

of Proposed Rulemaking, 44 Fed. Reg. 61372 (October 25, '

1979). Moreover, there are a number of environmental ,

impact statements dealing with the disposal of spent  !

fuel; see, for example, Draft Environmental Impact  :

Statement, Management of Commercially Generated Radio- l active Waste (April,1979) , prepared by the U.S. l Department of Energy. '

_6/ As stated in the Commission's Notice of Rulemaking, it

. . . will promulgate a rule providing that [

the safety and environmental implicati'ons i of radioactive waste remaining onsite after the anticipated expiration of the facility ,

licenses involved need not be considered in individual facility licensing proceedings. ,

In the event the Commission determines '

(Footnote _6/ continued on next page) i

i admitted by petitioner, the Township of Lower Alloways Creek is a full participant in such proceeding and is represented j by the same counsel who has noticed his appearance in this l

_2/  !

matter.

_6/ (continued) f that on-site storage after license ex-  !

piration is necessary or appropriate, l it will issue a proposed rule providinS i how that question will be addressed.

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Storage and Disposal of Nuclear Waste; Notice of Pro-  !

posed Rulemaking, 44 Fed. Reg. 61372, 61373 (October 25, i 1979). On the basis of the ongoing rulemaking proceeding, a licensing board rejected a contention that "the FES does l not discuss the options available in the event the spent l fuel pool becomes filled due to the lack of reprocessing i plants and permanent storage facilities" in Houston Light-  !

ing & Power Company (Allens Creek Nuclear Generating Sta-  ;

tion, Unit 1), " Order" (March 10,1980) (slip op. at 37) .

See also Virginia Electric and Power Company (North Anna l Power Station, Units 1 and 2), " Order Denying Intervenors'  :

Motion to Amend Petition to Intervene," (August 17, 1979)  :

(slip op. at 2-4); Pennsylvania Power & Light Company l (Susquehanna Steam Electric Station, Units 1 and 2), 9 NRC l 291, 317 (1979); Houston Lighting & Power Company (Allens  ;

Creek Nuclear Generating Station, Unit 1) , " Order Ruling '

Upon Intervention Petitions," (February 9, 1979) (slip op.  !

at 27, 32). l

_ 2/ See 45 Fed. Reg. at 3057 and petition at paragraph 5. i In the same paragraph the statement is made that the i petitioner was advised by legal counsel for the NRC on '

the record that a NEPA-type of analysis of spent fuel i storage at reactor sites would not be undertaken by the i NRC in that proceeding. Whatever the position of Staff  !

counsel in that proceeding, it is inappropriate for the  !

Director to entertain an attempt to bypass the Commission- l mandated generic proceeding by permitting this matter to  ;

be raised in an individual proceeding. See 44 Fed. Reg. 61372, 61373 (October 25, 1975).

Company of New York (Indian Point,-Cf. Units Consolidated Edison 1-3) , CLI-75-8, I 2 NRC 173, 177 (1975) ; Public Service Company of Indiana I (Marble Hill Nuclear Generating Station, Units 1 and 2), j DD-79-10, 10 NRC 129, 131 (1979).

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l The central premise of the petition, that the " Nuclear l l

Regulatory Commission has t kan a position that enlargement of spent fuel storage capacity and storage of spent fuel at reactor sites throughout the country does not require a NEPA l i type of analysis,"_8/ is simply incorrect. The fact of the matter is that, pursuant to the direction of the Commission,-

the NRC Staff prepared a draft environmental statement dated March 1978 and then issued NUREG-0575, Final Generic Environ-mental Impact Statement on Handling and Storage of Spent i

Light Water Power Reactor Fuel in August 1979. It is par-l ticularly surprising that petitioner would fail to acknowledge the preparation of such a generic impact statement inasmuch as counsel noting his appearance for petitioner was sent a copy of this three-volume EIS by the NRC Staff on August 31, l

1979. In any event, petitioner cannot now claim any deficiency in such an environmental impact statement or raise any  ;

issues concerning its preparation when it has failed to '

provide any comment on the draft statement.--10/ ,

i 8/ Petition at Paragraph 2; see also the alternative relief .

sought under paragraph 6.B. Even were petitioner's ,

characterization of the Commission's actions correct, the Director is bound by such determination and cannot further consider the.: requested challenge. General Elec- l tric Company (Vallecitos Nuclear Center, License No.

SNM-960), DD-79-9, 9 NRC 744, 753 (1979).

-- 9/ 40 Fed. Reg. 42801 (September 16, 1975). Therein the I Commission recognized that even prior to the completion of the generic impact statement, increases in spent fuel '

storage capacity could be approved.

10/ Public Service Company of New Hampshire (Seabrook Station, i Units 1 and 2), ALAB-366, 5 NRC 39, 65-66 (1977); See also I Vermont Yankee Nuclear Power Corporation v. NRDC, M U.S.

519, 553-54 (1978).

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Furthermore, by its sweeping statement that the en-  !

i largement of spent fuel storage requires "a NEPA type of analysis," petitioner has overlooked the 28-page Environ- {

l mental Impact Appraisal prepared by the Office of Nuclear j l

Reactor Regulation Relating to the Modification of the Spent  !

1 Fuel Pool dated January 15, 1979.--11/ The preparation of such

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a document is in complete accord with the provisions of 10 C.F.R. Part 51 of the Commission's regulations and with  ;

l specific commission directives on this subject.--12/ In any l i'

event, while patitioner generally complains about the Com-mission's position, it has adduced no specific facts or l t

circumstances which would require any change in the manner  !

l that the Commission Staff has handled this matter. t i

Even if one were to accept the petitioner's allegations l at face value, the blunderbuss relief requested, a " sus- l pension" or " moratorium" on the issuance on the operating i l

license for Salem Unit 2, bears no relationship to the asserted deficiencies. No fuel whatsoever is scheduled to be discharged to the Unit 2 spent fuel pool for well over a (

year from the date of the issuance of an operating license.  ;

Furthermore, it would be more than four years until the 11] This document is Exhibit 6C in ,the Salem Unit 1 )

fuel pool proceeding. -

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12/ In its notice of intent to prepare a generic impact i statement, see note 9, supra, the Commission approved i the use of an impact appraisal in actions regarding spent' fuel storage capacity expansion, 40 Fed. Reg.

_ I at 42802.

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spent fuel storage would exceed 264 assemblies.--13/ Thus, '

there is no reason to tie the resolution of any issue I concerning expansion of spent fuel facilities to the is-suance of an operating license. The absence of a reasonable l nexus between the issue raised by the petition and the l relief sought is a fatal deficiency. Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), DD-79-2, 10 NRC 717, 719 (1979).

In any event, the extraordinary relief requested by petitioner is completely unwarranted. While nothing in the petition suggests that any action need be taken, the most extensive relief appropriate would involve only a change in the provision of the operating license dealing with spent fuel storage rather_than a complete denial of the license.

The two matters are completely segregable.--14/

Conclusion In summary, petitioner raises no issues sufficient to require the initiation of a proceeding or other relief. As such, the petition should be denied.

13/ Paragraph 1 of the petition.

14/ The portion of the prayer for relief wh..ch asks that "any amendment to the license for Salem Unit il not be issued . . . until an environmental impact strtament for storage of spent fuel at Salem Unit il . . , be completed by the NRC" is clearly beyond the Director's jurisdiction.because a Licensing Board has jurisdiction over the subject matter. -Cf. Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit No. 2)

ALAB-579 (February 14, 1980). Thus, this portion of the requested relief should also be denied.

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