ML18079A971

Applicant Comments on Request of Intervenors Coleman for Issuance of Order to Show Cause for Stay

ML18079A971
Person / Time
Site:	Salem
Issue date:	09/20/1979
From:	Public Service Enterprise Group
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• APPLICANT'S COMMENTS ON THE REQUEST OF ALFRED C. AND ELEANOR G. COLEMAN, JR. FOR THE ISSUANCE OF AN ORDER TO SHOW CAUSE AND FOR A STAY I.

Alfred C. Coleman, Jr. and Eleanor G. Coleman ("Peti-tioners") have petitioned the Nuclear Regulatory Commission

("NRC" or "Commission") seeking the issuance of an order to show cause and requesting a three to five year stay of the issuance of an operating license for the Salem Nuclear Generating Station, Unit 2 ("Salem Unit 2"). The request was made pursuant to the provisions of 10 C.F.R. §2.206, which authorizes an appropriate NRC officer to institute .a show cause proceeding pursuant to §2.202 to modify, suspend

_y or revoke a license. On September 6, 1979, the NRC received a motion to amend the petition, revising one of the previously submitted items, and three additional "contentions." For the reasons discussed below, Public Service Electric & Gas Company, et al., holder of Construction Permit No. CPPR-53 and applicant for an operating license for Salem Unit 2, opposes the request by Petitioners as completely lacking in merit.

Section 2.202 requires that the request for an order to show cause specify the action sought and set forth the facts

___!/ The NRC published notice of the receipt of the petition in the Fedenal Register on August 30, 1979 (44 Fed. Reg. 50932). .

,7 909 250~/~

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that constitute the basis for the request. The petition, however, fails to set forth any factual basis for an order to show cause and concedes that it is "limited to known facts in the NRC's possession."

...J:/ The petition makes only very generalized allegations that certain safety and en-vironmental issues have not been adequately considered. As discussed below, all these matters have already been re-viewed by the NRC Staff or will be adequately addressed by the Staff prior to the issuance of an operating license.

There is absolutely no indication that the Staff is not performing the review with which it is charged by the Com-mission under the Atomic Energy Act and National Environ-mental Policy Act and the implementing regulations. The Colemans' request to institute a proceeding to show cause and for a stay should be denied.

II.

An examination of the ten items contained in the petition and in the amendment in support of the request for an order to show cause demonstrates that none provides a sufficient basis for the relief sought. The Colemans are coming to the Commission at the eleventh hour, asking for the broadest type relief, without any demonstration of substantial good cause for their lateness. Most of the items could and should have been raised at a much earlier

___+/-_/ Petition at 5.

stage. The institution of a proceeding at this stage could cause severe and extremely costly delays in putting Salem Unit 2 in service; the resulting costs would have to be borne by the owners of Salem Unit 2 and their customers.

The Commission has already given an opportunity for hearing with regard to the issuance of an operating license for Salem Unit 2. In fact, the Federal Register notice of October 20, 1973 (37 Fed. Reg. 22637), gave an opportunity to request a hearing as to whether the construction permit for Unit 2 should be continued, modified, terminated or appropriately conditioned to protect environmental values in addition to whether an operating license should be issued for Salem Unit 2.

On May 17, 1973, an Atomic Safety and Licensing Board granted a hearing to a group which requested a hearing pur-suant to the notice and issued a "Notice of Hearing on

-21 Facility Operating License." The petitioners neither participated with this group nor sought to intervene at that time. Moreover, on August 23, 1976, the Environmental Coalition on Nuclear Power ("Coalition") submitted a Petition for Intervention relating to, inter alia, Salem Unit 2, concerning a number of environmental and safety matters including consideration of the environmental impact of the nuclear fuel cycle. The Coalition petition recited that

_ii On October 31, 1974, the presiding Atomic Safety and Licensing Board dismissed the intervenor and.:the pro-ceeding.

Eleanor and Alfred C. Coleman, Jr. were members of the Coalition living in the vicinity of Salem Unit 2, and had

_y authorized the use of their names in the petition.

Thus, adequate notice of the contemplated issuance of an operating license for Salem Unit 2 was given and Petitioners were aware of the pendency of the operating license at least three years ago, but did nothing to pursue the matters they now seek to raise.

During the course of the Staff's review of the Salem Unit 2, it published a draft environmental impact statement soliciting comments from the public and a final environmental impact statement analyzing and responding to the comments submitted. The Petitioners filed no comments regarding the

s; draft impact statement~ nor in any other way challenged the adequacy of the draft or final impact statements for Salem

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Unit 2.

The Petitioners have not demonstrated or even claimed any expertise in any of the subject matters discussed in their pleading. The points they seek to raise are, in reality, merely unparticularized assertions without factual basis being_* given. Aside £rom generalities, nothing is set The petition was dismissed by an Atomic Safety and Licensing Appeal Board. Public Service Electric & Gas Company (Salem Nuclear Generating Station, Units 1 and 2), ALAB-426, 6 NRC 206 (1977). The Appeal Board's decision was hot appealed.

_2/ Appendix F to the Final Environmental Statement dated April, 1973 ("FES").

See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-366, 5 NRC 39, 66 (1977).

forth showing that any plant specific safety or environ-mental issue exists which is not being given.the proper attention by the NRC Staff.

Item one asserts that the NRC failed to act on infor-mation already known to it regarding projected needs for the PJM Grid. The need for power from the facility is one of the matters considered in the environmental impact statement for the Salem Generating Station where it was concluded that the additional power to be provided by the Salem Station was necessary to enable the facility's owners to adequately meet

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future demands for electric power. Of course, since those findings have been made, changes in forecasts have been made; however, no assertions are made by Petitioners which are sufficient to require litigation of this issue at this time.

The Commission has recognized that need for power fore-casts will change. In Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4) CLI 9 NRC , slip op. at 4 (May 2, 1979), the Commission stated:

[E]very prediction [regarding the need for power] has an associated uncertainty and that long-range forecasts of this type are especially uncertain in that they are affected by trends in usage, increasing rates, demographic changes, industrial growth. or decline, the

. general state of the economy, etc.

_]_/ FES at 9-8.

These factors exist even beyond the uncertainty that inheres to demand forecasts: assumptions on continued use from historical data, range of years considered, the area considered, extra-polations from usage in residential, commercial, and industrial sectors, etc.

Petitioners have failed to make any showing that the facility is not needed. We submit their burden becomes even greater in this case where construction of Salem Unit 2 is complete and the unit will be ready to start producing power after the Commission issues an operating license and testing is complete.

In Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 185 (1978), the Appeal Board stated that an applicant must merely show that its projections of demand are reasonable and that additional or replacement capacity is needed:

Forecasting that need [for power] is not simple. The demand for power varies from hour-to-hour, day-to-day, and year-to-year, and with it the 11 peakload 11 which the electrical system must be capable of meeting and the "reserve margin" it must carry to insure that capability.

But peakloads have also been growing, albeit at varying rates in recent years.

Parameters determinative of that growth rate are less than fully understood. Con-sequently, "as with most methods of pre-dicting the future, load forecasting involves at least as much art as science." What we observed in Catawba, when faced with assertions similar to those made here, remains pertinent:

The length of time required to construct a modern power

plant (nuclear or otherwise) -

not to mention the time needed to gain approval - requires the utility to predict peak demands on its system often as much as ten years in advance. Seeing that far into the future with accuracy is not to be expected - not of the appli-cant, not of the staff and not of the intervenor. It is simply true "that inherent in any forecast of future electric power demands is a substantial margin of uncer-tainty." Nevertheless, the need to make load forecasts cannot be avoided either as a legal or as a practical matter. It is our obligation, then, to insure that those predictions are as reasonably accurate as circumstances permit.

The applicant bears the burden of proving its need for power. It is not obliged, how-ever, to demonstrate that the new facility will be needed in a specific future year; the uncertainties inherent in demand fore-casting simply preclude doing so. Rather, the Commission has instructed that the ap-plicant must show only "that its projections of demand are reasonable and that additional or replacement generating capacity is needed to meet that demand. [footnotes omitted]

As part of the considerations governing the need for power, one of the factors which can be taken into account in the NRC's evaluation is whether the nuclear facility could be substituted for older and more expensive fossil-fuel units (Td. at 186) .

It has already been pointed out to the NRC that opera-tion of Salem Unit 2 at full power would be the equivalent

of a daily savings of 45,000 barrels of oil. Translating this into dollar values, it has been estimated that operating

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Salem Unit 2 would result in a savings of $600,000 a day.

Thus, it is clear that there is no basis for Petitioners' assertion that the power from Salem Unit 2 is not needed.

Item two of the petition alleges that the NRC has failed to act on information already known to it, in this instance, regarding projected plant capacity, maintenance, and operating costs for similar facilities. It is impossible to glean from this paragraph what specific matters the Colemans seek to raise. This paragraph completely lacks specificity and presents no question which can be considered 9/

at this time.-

Item three of the petition alleges that the NRC "has failed to act on information already known to it regarding 10/

unresolved safety issues,"- but fails to give any indication whatsoever of what the alleged safety issues might be. This allegation does not conform to the requirement for factual specificity under 10 C.F.R. §2.206. The Applicant is unable Public Meeting - Discussion of Nuclear Power Needs of Pennsylvania~ New Jerse~ dated June 14, 1979. Tr. at 9-11.

_!ii It is extremely unlikely that at this stage the cost-benefit balance could be tipped against the operation of the facility by changes in capacity factor or operating expenses, particularly when sunk costs are taken into ac~

count. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 530-6 (1977).

10/ Petition at 3.

to respond to such.generalities. Furthermore, there is no way the Director may make an "inquiry appropriate to the 11/

facts asserted 11 - on the basis of so vague an allegation; no further action need be taken.

Item four alleges that the NRC has failed to consider the ongoing hearings for expansion of the spent fuel pool for Salem Unit 1 as pertains to expansion at Salem Unit 2.

Here again, Intervenors fail to identify the specific threat to the public health and safety or to the environment that the NRC allegedly disregarded. Moreover, the allegation has no basis in fact.

Mr. and Mrs. Coleman are intervenors in the presently ongoing proceeding involving the amendment to Operating License DPR-78 to consider the expansion of the capacity of the spent fuel pool for Salem Nuclear Generating Station, Unit 1, where they are represented by the Public Advocate of the State of New Jersey. The Coleman's Contention 13 in that proceeding reads as follows:

The licensee has failed to give adequate consideration to the cumulative impacts of expanding spent fuel storage at Salem Nuclear Generating Station Unit 1 in as-sociation with the recently filed proposed amendment to the application for an op-erating license at the sister unit, Salem Unit 2. (See Amendment No. 42, Docket No.

11/ Consolidated Edison Company of New York (Indian Point,

.Units 1, 2 and 3), CLI-75-8, 2 NRC 173, 175 (1975).

I(~,.,.

50-311, filed April 12, 1978 which pro-poses modifications of spent fuel storage which the intervenor believes are similar in scope to the Salem Unit 1 application.)

For example, the license assumes an in-crease in releases of Kr-85 by a factor of 4.5--due to the factor of 4.5 increase in spent fuel (licensee's application, at 10). A similar increase, absent excep-tional controls, can be expected at Salem No. 2, resulting in a cumulative increase in Kr-85 emissions by a factor of 9--

almost a full order of magnitude increase.

(If similar spent fuel increases are pos-tulated for the companion units, Hope Creek 1 and 2, now under construction, the cumulative increase could rise by a factor of 18, or almost two full orders of magnitude). 12/

In admitting this contention, the Licensing Board stated:

The Board, upon reconsideration, has decided to accept Contention 13. The Board agrees with the Staff that the most realistic manner of evaluating the impact of increased storage at Unit 1 is to con-sider this impact in light of the expan-sion of storage at Unit 2. To ignore the expansion of Unit 2 would artificially limit public inquiry into the true effect of expansion at Unit 1. It is clear that this Board has jurisdiction to consider the characteristics of the geographical area within which increased storage at Unit 1 will have its effect, and that area is unquestionably the one in which any impact from increased storage at Unit 2 will occur. The Board is obliged to recognize that both storage facilities will operate side-by-side over a con-siderable period of time. 13/

12/ Public Service Electric & Gas Company (Salem Nuclear Generating Station, Unit 1), Docket No. 50-272 (Spent Fuel Expansion), Order at 12-13 (April 30, 1979).

13/ Id., Memorandum and Order dated July 18, 1978 at 3.

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That contention was disposed of on the merits as a result of a motion for sununary disposition, the Colemans being unable to demonstrate that a genuine issue of fact existed. Thus, it may be seen that the Colemans, as repre-sented by counsel, were able to pursue the question of the cumulative impacts of expanding the Unit 2 spent fuel pool, but were unable to show that cumulative impacts were other than insignificant. Nothing new has been presented in the present petition. Moreover, there is absolutely no basis for an assertion that the Staff is not appropriately carrying out its review of the expansion of the Unit 2 fuel pool.

Thus, this item has no substance.

Item five alleges that the NRC has failed to require an "independent" and separate "fire protection" water backup system for Salem Unit 2. The fire protection system for the Salem Station is described in the Final Safety Analysis Report for Salem Unit 2 at §9.8 and the detailed Fire Protec-tion Program Review for Salem Nuclear Generating Station, Unit 2. There is absolutely no showing that the proposed system does not meet all of the Conunission's requirements.

No issue requiring a hearing has been raised by the Colemans.

Item six asserts that the reconunendations from the NRC

• Task Force on the Three Mile Island accident should be im-plemented prior to licensing and conunercial.operation.

Intervenors overlook, however, that TMI-2 Lessons Learned

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Task Force Status Report and Short-Term Recommendations, NUREG-0578 (July 1979) itself includes a timetable for im-plementation of its short-term recommendations. Specifi-cally, the report recommends as follows:

Operating Plants and OL Applicants For operating plants, implementation of the recommendations shall be in two phases, as specified in Table B-1. Category A items shall be implemented prior to January 1, 1980, and Category B items prior to January 1, 1981, with the exception of the safety and re-lief valve qualification testing (July 1, 1981).

For plants with tendered OL applications, Category A items shall be implemented prior to receipt of an OL. Specific schedules for the Category B items will be developed in meetings with licensees and applicants to be conducted within 30 days. 14/

Accordingly, the NRC Staff has already taken steps such that the public health and safety will be adequately safe-guarded by, inter alia, implementation of the Task Force's short-term recommendations within the period so specified.

Nothing has been set forth which would call into question the schedule set by the Staff. The principle enunciated by the Appeal Board in Consolidated Edison Company of New York (Indian Point, Units 1, 2 and 3), ALAB-319, 3 NRC 188, 190 (1976), that "once an operating license board has resolved any contested issues and any issues raised sua sponte, the decision as to all other matters which need to be considered prior to the issuance of the requested license is the respon-14/ Task Force Status Report at B-1.

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sibility of the staff and it alone," citing 10 C.F.R. §2.760a is directly applicable here. It would be completely unnec-essary to issue an order to show cauae to require the Appli-cant to make a redundant commitment to conform to something that is already being required of it by the Staff.

Item seven alleges that Salem Unit 1 has experienced a number of shutdowns or power reductions for a variety of reasons. Initially, the petition fails to cite any instance in which there has been a threat to public health and safety.

Most, if not all, of these matters were reported in Licensee Event Reports, discovered by the Licensee, with corrective action being taken by it. Nuclear reactor shutdowns and power reductions occur frequently for a number of reasons.

The petition does not discuss the nature or magnitude of any shutdown or power reduction in terms that would demonstrate any threat to the public health and safety. Nor does it demonstrate how any shutdown or power reduction, if it did occur in the operation of Salem Unit 1, should affect the licensing of Salem Unit 2. The petition makes the tacit assumption that the Licensee has not evaluated each Licensee Event Report ("LER") and that any necessary changes in design or operation have not been made. It also presupposes that the Staff is not doing its job in monitoring operation and inspecting the units. There is no basis for these assumptions. To assert that lessons learned from operating

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of Unit 1 would not be appropriately applied to operation of Unit 2 is unsupported and patently absurd. Each LER states what corrective action has been taken; in addition, each LER has been appropriately considered as to any necessary changes in design or operation for Salem Unit 2. Even as to the Salem Unit 1, the Director, Office of Inspection and Enforce-ment, recently denied the request of the Delaware Safe Energy Coalition to suspend the Unit 1 operating license on the basis of similar supposition. As the Director noted, the existence of reportable occurrences during the operation of a nuclear plant does not in and of itself demonstrate an undue risk to the health and safety of the public or protec-15/

tion of the environment.~ Delmarva Power and Light Co.

(Salem Nuclear Generating Station, Unit 1), DD-79-2, 9 NRC 203 (1979).

Item 7A is similar to the remainder of Item 7 in that it presupposes that the NRC Staff will not take appropriate action regarding a matter about which it is admittedly informed. There is simply no basis for this supposition.

There is insufficient information and specific references given to permit a more detailed response. In any event, there has been no showing of a health and safety problem 15/ It should also be noted that the Office of Inspection and Enforcement has a resident inspector at the site to review the operation of Unit 1 and construction of .Unit 2.

directly applicable to Salem Unit 2 which is not being given appropriate attention by the Staff.

Item 8 asserts that the NRC has failed to require con-sideration of conversion of Salem Unit 2 to natural gas or 16/

coal. Initially, as previously discussed,- assertions such as this one are extremely late; conversion of Salem Unit 2

• to natural gas or coal are not viable alternatives at this point in time in that the facility is essentially complete 17/

and ready to load fuel and operate. As discussed previously,-

the Petitioners did not seek to raise this matter during the entire course of the Staff's environmental review of Salem Unit 2. No reasons have been presented why these matters could not have been raised in a timely manner. No facts whatsoever are presented in support of the assertion that the conversion of Salem Unit 2 to natural gas or coal is practicable and economical. It is obvious that the delay costs and sunk costs associated with such conversions would.

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completely rule out these alternatives.- In addition, well recognized problems associated with the procurement of natural gas for this purpose and the env.irorunental impacts of burning coal are not even mentioned by Petitioners. The Colemans also make reference to a request for additional financial information in the docket and imply that the 16/ See pp. 2.-3, supra.

17/ See pp.* 3-4, supra.

18/ Footnote .9 ,. supra.

• alternative of conversion to natural gas or coal should have been considered. Petitioners appear to be confusing two different issues; the request for financial information is related to a determination of the financial qualifications of the Applicant and not to the consideration of alternatives.

This matter lacks merit and need not be considered further.

In Item 9, Petitioners mix a number of different items loosely related to seismicity and seismic design. The first assertion is that "[t]he NRC has failed to review and compel licensee to explain apparent discrepancies in seismic findings by Dames & Moore for PSE&G and Delmarva Power and Light 19/

Company [as related to the Summit Nuclear Station]."-

Applicant is unaware of any discrepancies between the seismic findings contained in the application for Salem Unit 2 and those contained in the Summit application. Petitioners point to no specific discrepancy.

The next reference. given by the Colemans is to an unnamed University of Delaware study and findings which the Colemans assert states "there is a fault down the middle of 20/

the Delaware River." It is Applicant's understanding that the Staff is already aware of this reference, has examined it and has determined that there is no information presented to indicate that a "capable fault," as defined in 10 C.F.R. Part 100, Appendix A, exists in the vicinity of Salem Unit 2.

19/ .Amendment to Petition at 2.

~ Id. at 3.

The next point raised is that the "NRC Staff order for seismic inspection of 29 reactors failed to include reactor containment structure, fuel handling and spent fuel pool 21/

facilities."- Petitioners assert that this "must be 22/

determined prior to licensing Salem Unit No. 2 II o The Colemans completely fail to understand the scope of the NRC's requirements regarding seismic design. As discussed in Inspection and Enforcement Bulletin 79-07, Seismic Stress Analysis of Safety Related Equipment, the only matters which the NRC has required to be reviewed are the seismic design of certain plant systems piping and pipe hangers. Review of the seismic design of structures has already been completed by the Staff and is not the subject of the present analysis.

Therefore the reactor containment structure, fuel handling and spent fuel pool facilities are not included within the scope of the ongoing review. See the July 23, 1979 letter from Olan D. Parr to R. L. Mittl, the accompanying Safety Evaluation, and the August 7, 1979 reply by the Applicant.

The final matter raised by the Colemans is the condition of the containment building. The NRC Staff is fully aware of the situation. This matter has been completely analyzed in a report dated February 26, 1979, Structural Integrity Tests Unit No. 2 Containment, Salem Nuclear Generating*

• 21/ Id.

22/ Id.

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cf

• Station, transmitted to the NRC on April 24, 1979; the cracks in question have no effect on the ability of the containment to perform its intended purpose. It is Applicants' understanding that the Staff has completed its review of the open item related to this minor cracking and has accepted the Applicant's analysis.

Thus, none of the matters raised in Item 9 has merit, nor should any be further considered by the NRC.

In Item 10, the Petitioners state that the NRC has failed to require the consideration of the possible effects of a Class 9 accident for the Salem Nuclear Generating Station. Petitioners confuse the NRC evaluation of popula-tion density with consideration of Class 9 accidents. The NRC Staff has consistently, over the years, considered population density in its review of reactor sites. See 10 C.F.R. §100.ll(b). This, however, does not mean that Class 9 accidents were or should be part of the consideration for the Salem Nuclear Generating Station. In any event, this matter should have been raised, if at all, during the construction permit stage. It is inappropriate to attempt to consider population density for a plant which is completed and ready to load fuel.

Finally, Petitioners state that the NRC Staff, in a brief filed in the proceeding to consider the increase in capacity of the Salem Unit 1 spent fuel pool, has concluded

that the accident at Three Mile Island was a Class 9 accident, leaving the implication that Class 9 accidents may now be considered.

However, Petitioners as parties to the proceeding in 23/

question~ have overlooked the Staff conclusion that as a result of the TMI accident there were minimal risks of 24/

additional health effects to the offsite population.~ In addition, the latest expression of the Staff view in the Salem Unit 1 proceeding is that, even as a result of Three 25/

Mile Island, Class 9 accidents are not properly considered.~

In Offshore Power Systems (Floating Nuclear Power Plants) ,

CLI , 10 NRC (September 14, 1979), the Commission stated that it would re-examine in a rulemaking proceeding, inter alia, whether Class 9 accidents should be considered.

Therefore, the proper forum for Petitioners is that pro-ceeding. No reason to change the current NRC policy has been demonstrated by Petitioners in this instance. This item presents nothing which need be considered at this time.

In sum, the request for an order to show cause should be denied on its face. In making, as required by the Indian Point decision, an "inquiry appropriate to the facts

~/ See pp. 8-10, supra.

24/ NRC Staff Response to Board Question No. 4 Regarding the Occurrence of a Class 9 Accident at Three Mile Island dated August 24, 1979 at 3-4.

See NRC Staff Objection to Board Question dated June 1, 1979.

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asserted,"- the Director is not required to accord pre-sumptive validity to every assertion of fact by a petition for emergency action, irrespective of its degree of sub-stantiation. Nor must he convene an adjudicatory proceeding in order to determine whether an adjudicatory proceeding is warranted. Rather, the Director's role at this preliminary stage is "to obtain and assess the information he believes 27/

necessary to make that determination."- While the Director should not disregard an obvious threat to the public health and safety or to the environment, he is under no obligation to flesh out what is patently an unsubstantiated and merit-less request for emergency action such as this one.

III.

For the same reasons discussed above, Petitioners' request for a stay of the licensing proceedings should also be denied. The Commission denied a similar request for emergency action in Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 426-27 (1978). In that case, the Commission refused to order a halt in construction, issuance of operating licenses and continuation of operation because of a number of alleged concerns. Even if there were identifiable safety or environmental issues requiring reso-Indian Point, 2 NRC at 175.

Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 432-3 (1978).

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lution and an order to show cause were to be issued, there has been no entitlement shown to the extraordinary relief of a stay.

Insofar as Intervenors seek a stay of licensing pro-ceedings based upon the issuance of the TMI-2 Task Force Report, the request is grounded on the implicit proposition that the NRC, which is intensively investigating the TMI Unit 2 incident and possible changes in its regulations for licensing _requirements, will fail to take every action to protect the public health and safety. Of course, any changes in NRC regulations and the licensing process applicable to facilities such as Salem Unit 2 will be implemented at the appropriate time in accordance with the requirements of the Commission. However, it would be a patent abuse of discretion and a retreat from orderly licensing procedures to order, contrary to every indication from the Commission, a halt in preoperational testing and a 3-5 year moratorium on the issuance of an operating license for Salem Unit 2 on the facts brought forth by the Colemans. Notably, a stay of proceedings, also sought on the basis of the TMI-2 Task Force Report, was denied by the Licensing Board in the 28/

operating license proceedings for the Zinuner Nuclear Station.-

28/ Cincinnati .Gas & Electric Co. (Wm. H. Zimmer Nuclear Power Station), Docket No. 50-358,0L "Memorandum and Order Concerning Motions to Postpone Evidentiary Hearing"

- (May 11, 19 79) *. .

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Tested against the requirements of 10 C.F.R. §2.788(e),

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the request for a stay must fail.--- These factors, as em-bodied by 10 C.F.R. §2.788(e), are as follows:

1. Whether the moving party has made a strong showing that it is likely to prevail on the merits;

2. Whether the party 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.

As noted above, Petitioners have made no showing whatever on the merits of their claims. Petitioners have likewise made no showing at all of any irreparable injury, the "most

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crucial" factor in ruling on a request for a stay. On the other hand, a delay in the completion of these proceed-ings leading to a delay in the issuance of the operating license will undoubtedly harm the owners of the unit and their ability to provide sufficient, reliable electrical service to their customers. Finally, as the Commission itself noted in a prior holding, the public interest lies in

~/ Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC '671, 677-678 (1975). Section 2.788(e) codified established prior Commission practice, based on the Virginia Petroleum Jobbers decision. Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-505, 8 NRC 527, 529-530 (1978);

Rochester Gas and Electric Corp. (Sterling Power Project, Nuclear Unit No. 1), ALAB-507, 8 NRC 551, 556 n.18 (1978).

Fuhlic Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-27, 6 NRC 715, 716 (1977).

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adhering to an orderly approach" to the issues.- Although a movant has the obligation to "come to grips with each of 32/

the factors in* its papers,"- Petitioners have not done so.

In any event, the request for a*stay is clearly deficient under the established criteria for decision.

For reasons stated above, there has been absolutely no showing that there has* been any willful violation of any license or regulation or that the public health, safety or interest requires that if a show cause order were to be issued, it should be immediately effective. Thus, assuming arguendo that a show cause order were issued, it should not be inunediately effective.

31/ In Nuclear Regulatory Conunission (Licensees Authorized to Possess or Transport Strategic Quantities of Special Nuclear Materials), CLI-77-3, 5 NRC 16, 20-21 (1977).

The Conunission stated:

Our emergency powers must be reasonably exercised . . . . Available information must demonstrate the need for emergency action and the insufficiency of less drastic measures . . . . [T]he available information must show that the continued activit[y] . * * [is] inimicable to the conunon defense and security and consti-tutes an unreasonable risk to the public health and safety.

Moreover, the Conunission in that decision counseled aga:i*nst the use of an order to show cause that would disturb an "orderly approach" to the issues. Id. at 21.

32/ Public Service Company of Oklahoma (Black Fox Station,

• units* 1 and 2) ;. ALAB-505, 8 NRC 527, 530 (1977).

,. .

IV.

• For the reasons discussed more fully above, Petitioners' request for the issuance of an order to show cause and for a stay of licensing should be denied. Since the petition fails to identify any specific danger to the public health and safety and is, by its very terms, "limited to known 33/

facts in the NRC's possession," no factual investigation is required and Intervenors' petition should be summarily denied. For the same reasons, and because none of the legal prerequisites has been met, the request for a stay of licensing proceedings and of the issuance of an operating license must also be denied.

33/ Petition at 5.

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