ML19256E025

Brief Seeking Denial of Ecology Action of Oswego 790927 Petition Review of ALAB-562.Criteria of Important Question of Public Policy or Clearly Erroneous Decision Have Not Been Satisfied.Certificate of Svc Encl

ML19256E025
Person / Time
Site:	Sterling
Issue date:	10/12/1979
From:	Voigt H LEBOEUF, LAMB, LEIBY & MACRAE, ROCHESTER GAS & ELECTRIC CORP.
To:
References
NUDOCS 7910250316
Download: ML19256E025 (15)

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UNITED STATES OF AMERICA c+*+"

NUCLEAR REGULATORY COMMISSION #

03 "A BEFORE THE COMMISSION In the Matter of )

)

ROCHESTER GAS AND ELECTRIC ) Doc / e t No. STN 50-485 CORPO RATION , -et al. )

(Sterling Power Prc]ect, )

Nuclear Unit No. 1) )

LICENSEES' ANSWER TO ECOLCGY ACTION'S PETITION FOR REVIEW LeBOEUF, LAMB, LEIBY & MacRAE 1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036 Attorneys for Licensees Of Counsel:

HARRY H. VOIGT LEX K. LARSON MICHAEL F. McBRIDE Octcber 12, 1979 1210 310 lb I ($

7910250 '

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TABLE OF CONTENTS Page Table of Authorities . . . . . . . . . ...... i Procedural History . . . . . . . . . . ...... 1 Argument . . . . . . . . . . . . . . . ...... 3 I. ECOLOGY ACTION'S PETITION IMPROPERLY SEEKS INTERLOCUTORY REVIEW OF ALA3-562 . . . . . . . . . . ...... 3 THE ISSUES RAISED BY ECOLOGY ACTION

• II.

DO NOT WARRANT CCMMISSION REVIEW .... 6 Conclusion . . . . . . . . . . . . . . ...... 9

-i-1210 311

TABLE OF AUTHORITIES Page Cases:

Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210 (1974) . . . . . . . . . . . . . . . . . . . . 5 American National Bank and Trust Co. of Chicago

v. Certain Underwriters at Lloyd 's London, 444 F.2d 640 (7th Cir. 1971) . . . . . . . . . 4 Burleson v. Canada, 285 F.2d 264 (4th Cir. 1961) . 4 Coffman v. Federal Laboratories, Inc., 171 F.2d 94 (3d Cir. 1948), cert. denied, 336 U.S.

913 (1949) . . . . . . . . . . . . . . . . . . 4 Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-379, 5 NRC 565 (1977) . . . . , . 4, 5 CePinto v. Landoe, 411 F.2d 297 (9th Cir. 1969) . 4 Duke Power Company (Perkins Nuclear Station, Un i't s 1, 2 and 3), ALAB-433, 6 NRC 469 (1977) . 5 Gray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d 293 (5th Cir. 1974) . . . . . 4 Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-480, 7 NRC 796 (1978) . . . . . . . . . . 1, 2 Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-540, 9 NRC (April 11, 1979) . . . . . 2 Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-562, 10 NRC (September 11, 1979) . . . passim Public Service Company of Indiana, Inc.

(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-374, 5 NRC 417 (1977) . . 5

-ii- 1210 312

Page Cases (continued):

Ve rmont Yankee Nuclear Power Corp.

v. NPDC, 435 U.S. 519 (1978) . . . . . .... 7 Statutes:

42 U.S.C. 54321 et,sec. (1976) . . . . . . .... 3 Regulations:

10 C.F.R. 52.730(f) (1979) . . . . . . . . .... 5 10 C.F.R. 52.749 . . . . . . . . . . . . . .... 5 10 C.F.R. 52.786 (1979) . . . . . . . . . .... 6 10 C.F.R. S2.786(b)(4)(i) (1979) . . . . . .... 6 10 C.F.R. 52.786(b)(4)(ii) (1979) . . . . .... 6 10 C.F.R. S51.20 (1979) . . . . . . . . . .... 1 Miscellaneous:

Executive Order 12,144, 44 Fed. Reg.

195,7 (1979) . . . . . . . . . . . . . . .... 6 43 Fed. Reg. 15,613 (1978) . . . . . . . . .... 1 Fed. R. Civ. P. 56 . . . . . . . . . . . . .... 6 6 Moore's Federal Practice 156.20(4)

(2d ed. 1979) . . . . . . . . . . . . . .... 4, 5

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

                                )

ROCHESTER GAS AND ELECTRIC ) Docke t No. STN 50-485 CO RPORATICN , -et al. j (Sterling Power Fro]ect, ) Nuclear Unit No. 1) ) LICENSEES' ANSWER TO ECOLOGY ACTION'S PETITION FOR REVIEW Rcchester Gas and Electric Corporation, et al. hereby answer the Petition for Review of ALAB-562 filed by Ecology Action of Oswego on September 27, 1979. For the reasoqs stated herein, the petition should be denied. Procedural History Cn April 11, 1978, the Commission ruled that the value for radon emissions in Table S-3 of 10 C.F.R. S51.20 was in error. 43 Fed. Reg. 15,613 (1978). The Ccmmission ruled that the issue of radon emissions and their resulting health effects should be litigated in proceedings then pending before the Commission. Id. at 15,615-16. Respond-ing to the Commission's direction, the Appeal Board deter-mined in ALAB-480 not to try the issue separately in each 1210 314

of the proceedings in which it was presented. 7 NRC 796, 803 (1978). Rather than consolidate all the proceedings for hearing, the Appeal Board decided to use one proceeding-- Perkins1/--as the lead case. After the Perkins record was incorporated into the record in all the other proceedings, parties to those proceedings were given the opportunity to

 " supplement, contradict, or object to" anything in the Perkins record. as well as to comment upon the decision later handed down by the Perkins Licensing Board. 7 NRC at 805-06.

After papers were filed by certain intervenors specifying alleged " deficiencies" in the Perkins record, the Appeal Board consolidated the proceedings in which those intervynors were active and invited the parties to move for summary disposition of appropriate issues. ALAB-540 9 NRC (April 25, 1979) (slip op, at 6, 10-12). A motion for summary disposition of all issues was filed by the utilities whose proceedings were consolidated by the Appeal Board. Responses to the motion were filed by the intervenors (see, e.g., June 25, 1979 response of Ecology Action.) and the Appeal Board ruled on the motion in ALAB-562. ALAB-562 granted the motion in part, and denied it in part. Ecology 1/ Duke Power Co. (Perkins Station, Units 1, 2 and 3), Bocket Nos. STN 50-433, 50-489, 50-490. 1210 315

Action's petition seeks Commission review of rulings in ALAB-562 with respect to the reach of NEPA !, and the alleged variation in radon releases from mine to mine. ALAB-562, slip op. at 18-24. Argument I. ECOLOGY ACTION'S PETITICN IMPROPERLY SEEKS INTEBLOCUTORY REVIEW OF ALAB-562. Ecology AJtion seeks review of two rulings in ALAB-562 that granted st mary disposition of certain of Ecology Action's 26 alleged " deficiencies" in the Perkins record. The portion of ALAB-562 of which Ecology Action seeks review is interlocutory, and thus Commission review at this stage is improper. The rulings in ALAB-362 of which Ecology Action seeks review are analogous to " partial summary judgment" in a Federal District Court. Professor Moore's treatise extensively considers the subject of appealability of

 " partial summary judgments". He states:
            "Since Rule 54(a) defines ' judgment' as used in the Federal Rules as including a decree and 'any order from which an appeal lies,' it might be contended that a partial summary judgment rendered 2/  National Environmental Policy Act of 1969, --as amended, 42 U.S.C. 54321 et sec. (1976).
                                                                         }}}{ }}b

under Rule 56 is, by virtue of the definition in Rule 54(a), an appealable judgment. Put this contention fails for two reasons:

               "1. Rule 56(d) expressly provides the procedure for dealing with a partial summary judgment. It is clear from Rule 56(d) that a partial summary judgmen, is not a final judgment, [nor appealable unless this particular interlocutory order is made appealable by statute,] but is merely a pre-trial adjudication that certain issues in the case shall be deemed established for the trial of the case. Such an adjudication is on a par with the preliminary order formulating issues under Rule 16.
               "2. As pointed out in the discussion of Rule 54(b), it was the policy of the draf tsmen of the Federal Rules to continue the policy under the former practice of not allowing interlocutory appeals, except where specifically provided for by a statute of the United States."

6 Moore's Federal Practice 156.20[4], at 56-1232 (2d ed. 19,79) (footnotes omitted). This view is fully supported by the Federal courts.3/ The Commission is generally guided in its inter-pretation of its own Rules of Practice by resort to analo-gous Federal Rules. See, e.g ._, Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-379, 5 NRC 565, 3/ See, e.c., Gray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d 293 (5th Cir. 1974); Americar; National Bank and Trust Co. of Chicago v. Certain Underwriters at Lloyd 's London, 444 F.2d 640 (7th Cir. 1971); DcPinto v. Landoe, 411 F.2d 297 (9th Cir. 1969); Burleson v. Canada, 285 F.2d 264 (4th Cir. 1961); Coffman v. Federal Labora-tories, Inc., 171 F.2d 94 (3rd Cir. 1948), cert. denied, 336 U.S. 913 (1949); see also 6 Moore's Federal Fractice, supra, at n.5, and accompanying lot. 1210 317

568 n. 13 (1977); Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), A LAB-3 7 4 , 5 NRC 417, 421 (1977) (additional views of Mr. Farrar, joined in by the entire Board) . This general rule is modified by the proposition that "before guidance can be taken from judicial proceedings, there must be inquiry into whether the situations are truly similar." Midland, supra. Here, the situations are "truly similar". The Commission's summary disposition rule, 10 C.F.R. 52.749 (1979), is analogous to Rule 56 of the Federal Rules of Civil Procedure. Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974). Therefore, resc rt to Federal precedent is appro-priate. Since Federal precedent characterizes the rulings here in issue as " interlocutory", the Commission should treat them as such and apply its own regulation barring consideration of interlocutory appeals. 10 C.F.R. 52.730(f) (1979); see Duke Power Company (Perkins Nuclear Station, Units 1, 2, and 2), ALAB-433, 6 NPC 469, 470 (1977), and cases cited therein. Accordingly, Commission review of ALAB-562 should not ce granted. 1210 318 II. THE ISSUES RAISED BY ECOLOGY ACTION DO NOT WARRANT COMMISSION REVIEW. The standards for determining whether to grant a petition to review the decision of an Appeal Board are set forth in 10 C.F.R. S2.786 (1979). It appears that Ecology Action contends that the decision of the Appeal Board in ALAS-562 with respect to the reach of NEPA raises

 " impo r t an t questions of public policy" within the meaning of 52.786(b)(4)(i). It also appears that Ecology Action is contending that review of ALAB-562's ruling with respect to the alleged variation in radon emissions from mine to

, mine is " clearly erroneous" within the meaning of 52.786(b) (4)(ii). Neither contention is correct. ALAB-56 2 's ruling that NEPA does not require consideration of foreign environmental impacts is consis-tent with a series of Commission de::sions. Slip op. ar 13-19. The Appeal Board's discussion of those cases, and the cases themselves, convincingly refute Ecology Action's arguments to the contrary. In addition, the Appeal Board's ruling is consistent with national policy as set forth in Executive Order 12,144, 44 Fed. Reg. 1957 (1979).

                                                             \2)C 5\9 While the issue of the jurisdictional reach of NEPA may have, at one time, been considered an "important question of public policy", the Commission exhaustively addressed itself to the question of NEPA's reach in the cases cited by the Appeal Board in ALAB-562, and no reason has been suggested by Ecology Action why the Commission need look at the question yet again. Accordingly, the Commission should not do so.4/

With respect to the ruling in ALAB-562 concerning the alleged variations in radon emissions from mine to mine, the Appeal Board's ruling that no hearing on that contention is required is not " clearly erroneous". The affidavit of Dr. Morton I. Goldman5! supports the conclusion reached by the Appeal Board. No evidence was filed to the contrary. 9 4/ It is not entirely clear whether Ecology Action is appealing the Appeal Board's determination that 1) impacts within foreign countries from foreign mining and milling need not be considered, or 2) impacts within this country from foreign mining and milling need not be considered, or both. If Ecology Action is contesting the second determina-tion, the short answer is that the Appeal Board did not foreclose such consideration. It simply observed that Ecology Action had failed to make a threshold showing that such impacts require consideration. -Cf. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. T19, 553-54 (1978). 5/ Affidavit of Dr. Morton I. Goldman, sworn to on May 22, 1979, attached to Licensees' Joint Motion for Summary Disposition of Radon Issues, served May 25, 1979 ("Goldman Aff."). 1210 320

Instead, intervenors simplis*ically insisted that no rela-tionship exists between radon (mitted and ' tons of ore mined. As the Appeal neard noted, Dr. Goldman and Ecology Action relied on the sabe data on this issue. Slip oo. at 23. Having appraised the same information as inter-venors, Dr. Goldman concluded that the data show that the Staff estimate in Perkins "may be high by almost a factor of two." Goldman Aff, at 5. He also explained why the Staff's methodology presented "the best generic correlation that can be made" to estimate radon releases from undergrcund uranium mining. Id. Faced with little beyond rhetoric to the contrary, th'e Appeal Board can hardly be faulted for agreeing with Dr. Goldman and concluding that no further hearing on the issue is required. Conclusion ALAB-56? is an interlocutory decision. Therefore, review of it ia premature. In any event, Ecology Action's petition does not present any "important question of public policy" or establish that the Appeal ocard ruled in a 12i0 32i

 " clearly erroneous" manner on the subject of radon releases from mines. Accordingly, the petition should be denied.

Respectfully submitted, LeBOEUF, LAMB, LEISY & MacRAE By dAftd {jPartner y 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 (202) 457-7500 Attorneys for Rochester Gas and Electric Corporat ion, et al. Of Counsel: LEX K. LARSON MICHAES F. McBRIDE October 12, 1979 1210 322

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter cf )

                              )

ROCHESTER GAS AND ELECTRIC ) Docket No. STN 50-485 CORPORATION , -et al. ) (Sterling Power Froject, ) Nuclear Unit No. 1) ) CERTIFICATE OF SERVICE I hetecy certify that I have served, this 12th day of Octocer, 1979, a copy of " Licensees' Answer to Ecology

 . Action's Petition for Review", by first-class mail, postage prepaid, upon each of the following:

Dr. Joseph M. Hendrie, Chairman Peter A. Bradford, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commiss ion Commiss ion Washington, D.C. 20555 washington, D.C. 20555 Victor Gilinsky, Commissioner John F. Ahearne, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commiss ion Commiss ion Washington, D.C. 20555 Washington, D.C. 20555 Richard T. Kennedy, Commissioner Office of General Counsel U.S. Nuclear Regulator 7 U.S. Nuclear Regulatory Commission Commiss ion Nashington, D.C. 20555 Washington, D.C. 20555 1210 323

Alan S . Rosenthal, Esq. Office of the Secretary Chairman Docketing and Service Section Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Wasnington, D.C. 20555 Commiss ion (original and 20 copies) Washington, D.C. 20555 Dr. George C . Anderson Dr. John H. Buck Oceanograpirj Department Atomic Safety and Licensing WB-10 Appeal Board University of Washington U.S. Nuclear Regulatory Seattle, Washington 98195 Commission Washington, D.C. 20555 Edward Lutton, Esq. Chairman Richard S. Salzman, Esq. Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commiss ion Wachington, D.C. 20555 Washington, D.C. 20555 Bernard Bordenick, Esq. Mr. Lester Kornblith, Jr. Office of the Executive Atomic Safety and Licensing Legal Director Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commiss ion Washington, D.C. 20555

   ' Nashington, D.C. 20555 Jeffrey L. Cohen, Esq.

Ms. Sha'ron Morey New York State Energy Office Ecology Action Swan S treet Building P.O. Box 94 Core 1, Second Floor Oswego, New York 13126 Empire State Plaza Albany, New York 12223 Lw 7/. lb<2 HARRY :() VOIGT () 1210 324}}