ML19275A585

Answer to Contentions of League of Women Voters of Rockford, Il.Urges Revision of Contentions & Consolidation,If Found Litigable,W/Contentions of Dekalb Area Alliance for Responsible Energy & Sinnissipi Alliance for Environ

ML19275A585
Person / Time
Site:	Byron
Issue date:	08/20/1979
From:	Bielawski A, Mark Miller, Murphy P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE
To:
References
NUDOCS 7910050555
Download: ML19275A585 (19)

Text

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UNITED STATES OF AMERICA o NUCLEAR REGULATORY COMMISSION i Y c'h$Y, .p l6 BEFORE THE ATCMIC SAFETY AND LICENSING BOAR .

y, 03-/

In the Matter of ) Docket Nos.

Commonwealth Edison Company ) 50-454 (Byron Station, Units 1 c.nd 2) ) 50-455 ANSWER OF COMMONWEALTH EDISON COMPANY TO THE CONTENTIONS OF THE LEAGUE OF WOMEN VOTERS OF ROCKFORD, ILLINOIS Commonwealth Edison Company (" Edison" or " Appli-cant"), pursuant to 10 CFR S2.714(c), answers the Conten-tions submitted by the L(ague of Women Voters of Rockford, Illinois (" Petitioners") on Edison's application for an operating license for By: on Station, Units 1 and 2 as fol-lows. In general, a number of Petitioner's Contentions are grossly deficient in terms of setting forth the issues Petitioners seek to litigate with adequate basis and speci-ficity. Others fail to raise issues which are appropriate for adjudication in this proceeding.

ARGUMENT A petitioner for leave to intervene must file contentions which the petitioners seeks to have litigated in the matter, and the basis for each contention must be set forth with reasonable specificity. 10 CFL S2.714(b). The 1100.252 79100505'6f

t Commission has stated, " definition of the matters in con-troversy is widely recognized as the keystone to the effi-cient progress of a contested proceeding." 37 Fed Reg._

15128. In setting issues of interest or concern to it, the petitioner "must be , specific as to the focus of the desired hear'ing.... [a]nd contentions... serve the purpose of de-fining the concrete issues which are appropriate for adjudi-cation in the proceeding. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2). ALAB-106, 6 AEC, 188, 191, affirmed, CLI-73-12, 6 AEC 241 (1973), affirmed sub. nom. BPI v. Atomic Energy Commission, [S02 F.2d 424,425 (D.C. Cir. 1974)]." Gulf States Utility Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 769 (1977).

The primary purpose for requiring that the issues be set forth tith adequate specificity and particularity is to p -

• i >' the Applicant and the Staff with a fair opportunity to know precisely what the issues are, exactly what proof, evidence or testimony is required to meet the issue and exactly what support Petitioners intend to adduce for its allegatig,ns . River Bend, supra at 771. Petitioner's Con-tentions fall far short of complyi_ng with these_ require-ments. 1100 253 The requirement that Petitioner's file adequate contentions which raise adjudicable issues is of crucial importance in an operating license proceeding, for absent successful intervention, no hearing need be held. 10 CFR 550. 58 (b) . Further, since the Licensing Board need only consider those issues' put into controversy by the parties in

an operating license proceeding, the Board should take the utmost care in determining whether Petitioner has adequately formulated specific and supportable contentions which raise adjudicable issues. 10 CFR S2.760a; Tennessee Valley Author-ity (Watts Bar Nuclear Plant, Units 1 and 2), LBP-77-36, 5 NRC 1292, 1297 (1977), affirmed, ALAB-413, 5 NRC 1418.

Finally, a Licensing Board has no duty to recast contentions offered by a petitioner to make them acceptable under the regulations. Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 406 (1974).

Many of Petitioner's. contentions fail to meet the specificity requirements of 10 CFR S2.714. The contentions are merely general conclusions regarding the adequacy of Applicant's and the Staff's safety and environmental analy-sis unsupported by facts stated with the requisite speci-ficity. Many different and seemingly unrelated matters are included within the scope of the particular contentions. To the extent the contentions are intelligable, they are sub-ject to different interpretations. As a result, it is impossibfe to comprehend many of the specific issues which Petitioner seeks to litigate in this proceeding.

Both Applicant and the NRC Staff have devoted considerable effort in an attempt to meet with represen-tatives of Petitioner in order to reach an agreement on the form of contentions. Early this Spring, prior to the time that the Board had ruled on the standing of Petitioner, the

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t NRC Staff and Applicant met with representatives of Peti-tioner to discuss general procedural requirements. At that time, all parties agreed to meet for the purpose of refining contentions at some date not specified following this Board's ruling on standing. The NRC Staff made several efforts to arrange such a meeting of all parties; however, Petitioner expressed reluctance to meet with Applicant. Eventually, in July, 1979, Petitioner agreed to meet with the NRC Staff and Applicant to develop acceptable contentions. On July 19, 1979, one of the attorneys for Applicant contacted Mrs.

Betty Johnson for the purpose of setting up such a meeting.

Mrs. Johnson saw no purpose in such a meeting and declined to meet. On August 9, 1979, following the submission of Petitioncr's amended contentions, attorneys for Applicant again contacted Mrs. Johnson to see if a meeting could be arranged between Petitioner, Applicant and the NRC Staff for the purpose of revising Petitioner's contentions. At that time, it was agreed in principle to meet, and only the time and place of the meeting were left open. On Augus; 10, 1979, a firm date and location for the meeting were agreed on. On August 13, 1979, Mrs. Johnson informed Applicant that the meeting would have to be cancelled because Peti-tioner's representatives would be unable to attend the meeting. However, Mrs. Johnson stated that she still wanted to meet with Applicant and the NRC Staff following the prehearing conference for the purpose of revising conten-tions to put them in a form suitable for adjudication. c

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Clearly, Petitioner was afforded ample opportunity for assistance in developing contentions which are accept-able under the regulations and which raise litigable issues in this proceeding. Having refused to take adiantage of these offers, Petitioner should not be given another oppor-tunity to put its contentions into acceptable form, and therefore these unacceptable contentions should be dis-missed. In the alternative, if the Board determines that adequate contentions may eventually be formulated, Applicant requests that the Board order, pursuant to 10 CFR S2.751a (b) ,

that conferences be held among the parties for the purpose of revising contentions to put them in a suitable form for adjudication. This method of developing contentions is preferable since it will insure that the parties understand the issues which will be considered during the course of future evidentiary hearings.

In addition to the serious deficiencies regarding specificity and intelligability, many contentions appear to discuss matters which are not adjudicable in this proceeding.

A discussion of the specific contentions follows.

Contention 1 As we noted above, Contention 1 is sufficiently specific and comprehensible to permit identification of the issues which Petitioner seeks to litigate in this proceeding.

The contention specifically refers to NUREG-0410, as the source for the items identified in the subparts of the 1100 256

contention. Each of these items is the subject of current NRC Staff Task Action Plans, i.e. investigation into generic issues applicable to nuclear facilities.

In Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977), the Appeal Board generally described the nature of these generic investigations:

[T]he TSAR [now Task Action Plans} is a compen-dium of some of the research activities which (as of the date of its issuan~2) the Staff either had undertaken or proposed to undertake with a view toward achieving such goals as im-proving the licensing process or the method by which particular safety questions are considered, or defining more p;ccisely the margins of safety inherent in various component parts of a reactor.

That change could eventuate in some of the areas covered by the TSAR (or its successor, the Task Action Plans) is expected. And application of at least some of these potential modifications to existing reactors or procedures is highly likely. But it does not follow that a safety threat would be presented by the licensing of a plant prior to completion of a particular study which is relevant to that type of plant.

Indeed, some of the studies concern potential problems of such character that in no event would they arise in the early years of a reactors operation. Other studies are aimed at the question whether there might be a mitigation of some require-ments currently imposed. Still further, the TSAR

,, spotlights areas in which, althouch a generic solution to a particular problem may not have been achieved, a satisfactory resolution for one or more reactors has been obtained. River Bend, supra at 772.

Because of the varying objectives sought to be achieved through these generic investigations, the Appeal Board expressly held that mere identification of a generic technical matter by a party seeking to litigate these issues .

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is insufficient; the petitioner must establish a nexus between the license application and the cited Task Action Plan.

To establish the requisite nexus ... it must generally appear both (1) that the undertaken or contemelated project has safety significance insofar as the reactor under review is concerned; and (2) that the fashion in which the application deals with the matter in question is unsatisfac-tory, that because of the failure to consider a particular item there has been insufficient as-sessment of a specified type of risk for the reactor, or that the short-term solution offered in application to a problem under Staff study is inadequate. River Bend, supra at 773.

Petitioners in the River Bend proceedings merely cited a number of TSAR itemr. ~1thout establishihg the requisite nexus. The Appeal Board affirmed the Licensing Board's refusal to consider these' issues. In the case at bar, Petitioner has taken the additional step of paraphras-ing the " Description of Problem" contained in the Task Action Plans. This in no way fulfills the pleading require-ment mandated by the Appeal Board in River Bend. Petitioner has not established that the cited Task Action Plans are relevant to the Byron facility; that the Task Action Plans raise issues of safety pertaining to the operation of Byron Station; or that Applicant's proposed solutions to tne generic problems identified in the Task Action bians are inadequate. Therefore, Contention 1 should be dismissed.1/

1/ At least one Licensing Board has admitted a contention which appears to be similar to Petitioner's contention and to Contention 10 submitted by DAARE and SAFE in this pro-ceeding, because the Staff had not at that time addressed 1 i 00 25fr .

Contention 2 This contention lacks adequate basis and speci-ficity. Petitioner merely asserts that for unspecified reasons, Applicant's and the Staff's safety analysis re-lating to on-site fuel storage is inadequate. Petitioner also states in a conclusory manner that spent fuel operation increases the possibility of accidents yet does not identify an adequate basis for this conclusion. Further, the conten-tion attempts to introduce matters such as decommissioning and low level waste disposal which are seemingly irrelevant to the question of on-site spent fuel storage. For these reasons, the contention fails to define an issue which is appropriate for adjudication and should be dismissed pur-suant to 10 CFR S2.714 (b) .

Contention 3 As with contention 2, this contention is comprised of a number of unsupported allegations regarding the Staff and Applicant's safety analysis review. Subpa t 1 directly challenges the adequacy of the design basis criteria set forth in Appendix A to 10 CFR Part 50.

1/ (cont.) the generic problems with respect to the specific reactor in question. Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2) LBP-79-ll, 9 MRC 73, 81 (1979).

We believe that the Enrico Fermi decision ignores the plain language and rationale of the River Bend decision and should therefore not influence this Board's decision.

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Accordingly, the contention should be dismissed pursuar.t to 10 CFR 52.758 as an impermissible challenge to the Commis-sion's regulations. -

Subsection (f) of subpart 1 and subpart 2 in its '

entirety seeks to raise unspecified matters relating to Class 9 accidents and therefore should be dismissed from this proceeding. Carolina Environmental Study Group v.

United States, 516 F.2d 796, 799 (D.C. Cir. 1975).

Contention 4 Contention 4 seeks to raise a number of issues regarding the seismic analysis performed in relation to Byron Station. To the extent that the Contention raises issues, if any, concerning faults which were discovered following the construction permit review, Applicant believes that these issues are appropriate for adjudication in this proceeding. Petitioner should be required to specifically identify such faults to establish that new and significant information has been developed since the construction per-mit review. With respect to faults which were analyzed during t$e course of the construction permit review, a '

substantial' amount of evidence was introduced on the record regarding these matters and the construction permit Licens-ing Board clearly set forth its reasoning for determining that these faults were not capable as the term is defined in Appendix A to 10 CFR Part 100. Commonwealth Edison Company (Byron Station, Units 1 and 2, and Braidwood Station, Units tt00.2%

1 and 2), LBP-75-64, 2 NRC 712, 715-717 (1975). Having been previously considered, these matters should not be reliti-gated at this stage of the proceeding, and the Board should -

so limit the contention.

Contrary to the assertion in subpart 6, the Staff set forth its justification for establishing the maximum ground acceleration for the operating basis earthquake as

.099 in 52.5.4 of the Byron Construction Permit SER. Peti-tioner has not identified valid grounds for reexamining this issue.

Subpart 8 of Contention 4 lacks basis and speci-ficity and as a result it is impossible to discern the issue which Petitioner seeks to litigate. Accordingly, subpart 8 should ne dismissed pursuant to 10 CFR S2.714.

Contention 5 This Contention questions the adequacy of Appli-cant's emergency response plans. To the extent that the Contention questions Applicants compliance with che Com-mission's regulations goterning emergency plans contained in Appen[ix E % 10 CIR Part 50, Applicant does not object to this contention.

Contention 6 1100 26i Contention 6 seeks to raise issues concerning the impacts on hydrology from the operation of Dyron Station.

These impacts were identified and discussed during the course of the construction permit review for Byron Station,

and Petitio.ier has not identified any changed circumstances which neces.;itates the reexamination of these issues at this time. Alabama Power Company -(Joseph M. Farley Nuclear Plant, Units 1 and,2), CLI-44-12, 7 AEC 203 (1974). -

Subpart 1 pertains to environmental impacts arising from contaminants in the river sediments. Release of radi'o-activity into the environment through this pathway was ex-amined in the Construction Permit Final Environmental State-ment for Byron Station (FES , Figure 5.2) .

The Byron Station FES also identifies the ground-water wells located in the vicinity of the site (FES p. 5-5, and concludes that there is no potential for groundwater contamination as a result of operation of Byron Station.

(FES p. 5-13). Having failed to identify any new or changed circumstances, subpart 2 should be dismissed.

Subpart 3 is unintelligable and accordingly should be dismissed pursuant to 10 CFR 52.714.

Pursuant to Criteria 60 of Appendix A to 10 CFR Part 50, the Applicant must provide suitable means to con-trol the,, release of liquid effluents into the environment. .

During the construction permit review, it was determined that the Ftation design includes provisions for automa-tically terainating ef fluent releases in the event radiation levels in discharge exceeds a predetermined level. Safety Evaluation Report, p. 11-10. The issue raised in subpart 4 has been examined and settled during the course of the t100 262

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construction permit review and this subpart should accord-ingly be dismissed.

E 9;part 6 raises questions concerning the environ-mental effects on hydrology and the Rock River resulting from long-term wa.ste storage and decommissioning. Petitioner has not identified a credible mechanism which would cause an unacceptable environmental impact as a result of on-site waste storage or plant decommissioning. Accordingly, this subpart should be dismissed for lack of basis and specificity.

Subpart 7 pertains to .iatters concerning environ-mental effects of chemical discharges to the Rock River.

These matters are discussed at length in the Fihal Environ-mental Statement. (FES pp. 5 5-42). Petitiorer has not identified any changed circumstances which might modify the concl:-ions presented in the FES, and subpart should accordingly be dismissed.

Likewise, the FES describes the environmental effects which are anticipated from withdrawal of cooling water from the river (FES 55.4.2.1) . Having failed to identify,,any changed circumstances, subpart 8 of Contention 6 should be dismissed.

Finally, 55.4.2.2 of the FES describes the effects associated with discharge of heated water into the Rock River. Therefore, subpart 9 of Contention 6 should be dismissed for failure to establish a factual basis for reexamination of this issue.

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Conte.. tion 7 Contention 7 raises the issue of whether the release of Krypton 85 produced as a result of the operation of Byron Station represents a.. unacceptable environmental impact. To the extent that Contention 7 raises this ques-tion, Applicant agrees that it presents a proper issue for adjudication in this proceeding.

Contention 8 Contention 8 raises a number of vaguely defined issues pertaining to radiation exposure. There is no citation to the Commission's regulationF 'overning exposure to workers, che general public, or the. environ-ment. As such, it is incossible to discern whether Peti-tioner is asserting that Applicant will not meet these limits or whether the Regulations contained in 10 CFR Part 20, Appendix I to 10 CFR Part 50, and 10 CFR Part 100 are inadequate to protect workers and the public from ex-cessive exposure to radiation. Accordingly, the Contention should be dismissed f ; lack of specificity pursuant to 10 CFR S2.714.

Contention 9 This Contention attempts to introduce issues pertaining to midlife chemical decontamination. This issue is totally beyond the scope of this proceeding. Applicant's opereting license application does not include any request lo,4

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P00RBRIS!ML for authorization to undertake such decontamination and '

Petitioners have not established any basis for assuming that .

Applicant intends to do so. .Accordingly, Contention 9 should be dismissed for raising an issue which is beyond the scope of this proceeding.

Contention 10 This Contention raises a number of matters re-lating to environmental effects of transmission lines.

These effects were considered at length during the course of the construction permit review, (FES 55.4.1.7), and Peti-tiener has not identified any f acts which would have a eering on the conclusions reached at that time. The ques-

. ion of transmission system alternatives was also thoroughly iiscussed during the earlier proceedings. (FES 59. 3) .

Since there is no suggestion of changed circumstances, the Contention should be dismissed.

Contention 11 This Contention fails to specifi, .y focus on an issue which is rppropriate for adjudication in this proceeding. *

s. .

To the extent that Petitioner seeks to litigate whether the .

specific items in subpart 2, which are relevant to the safe operation of Byron Station,2,/ have been resolved, Applicant believes that the contention presents a litigable issue.

2/ Subsection (e) of this contention is clearly unintel-Tigable and should be stricken.

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t significant changed circumstances which would have a like- ,

lihood changing the original construction permit cost-benefit analysis. As the Licensing Board in Detroit Ediso.r Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73,86 (1979) noted, "the assessment of alternatives is more properly performed at the construction permit stage of reviews." 'Accordingly, to the extent that Contention 13 seeks to reopen the question of alternatives to Byron Station, it should be dismissed.

Subpart 4 of Contention 13 questions Applicant's financial ability to complete construction and operate the Station. Clearly, Petitioner has failed to identify an adequate basis for the assertions concerning Applicant's financial ability to operate Byron Station. This subpart must accordingly be dismissed.

Subpart 5 challenges the environmental cost-benefit analysis relating to Byron Station for failure to consider certain factors. A summary of the environmental considerations associated with transportation, mining and milling and enrichment of fuel is set forth in 10 CFR .

S51.20, Tables S-3 and S-4. To the extent that subpart (a) is intended as a challe::ge to these regulations, it should be dismissed pursuant to 10 CFR S2.758.

Soopart (b) attempts to introduce issues per-

• 1ning to the environmental consequences of producing fuel by means of the liquid fast metal breeder reactor.

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There is no showing made that such fuel will in fact be ,

produced or, more importantly that Byron Station will use such fuel. Accordingly, this subpart raises issues beyond the scope of this proceeding and should be dismissed.

Applicant,cannot discern the relevancy of the existence or lack of long-term contracts for fuel or waste disposal to the environmental cost-benefit analysis. There-fore, subpart (c) should be dismissed for lack of basis.

Finally, Table S-3 of 10 CFR 551.20 quantifies the environmental effects associated with long-term storage.

Conten' tion (d) seemingly challenges this regulation, and should be dismissed pursuant to 10 CFR S2.758.

CONCLUSION For the reasons stated above, Contentions 1, 2, 3, 6, 8, 9, 10, and 12 shculd be dismissed from thi= proceeding.

Applicant has identified certain portions of Contentions 4, 5, 7, and 11 as alluding to matters which may be appropriate for adjudication in this proceeding. However, as worded, these contentions lack sufficient specificity and therefore ,

do not permit a clear definition of the issues which Peti- '

tioner seeks to litigate. Therefore, if the Board deter-mines that these contentions can be revised to comply with the requirements of the Commission's regulations, Applicant requests that the Board order that the parties attempt to reach agreements as to suitable language for contentions.

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Certain of Petitioner's contentions raise matters which are in essence identical to those raised in the con-tentions submitted by DAARE and. SAFE in this proceeding.

If the Board identifies these matters as proper subjects for adjudication, Applicant requests that the contentions be consolidated pursuant to 10 CFR S2.714 (e) (1) .

Respectfully submitted,

/

.s C/"(~~$.f - ' (~

Michael I. Miller

/!?h' Ml % 0 fs/

, Paul M. Milrphy '

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/ Alan P. Bielawski DATED: 54 )d j b 7(

i ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 606r (312) 558-7500 ,

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