ML19344A759

Petition for Review of Aslab 800729 Decision Affirming ASLB 800530 Denial of Joint Petition to Intervene.Questions Whether Early Site Review Is Major Federal Action Per NEPA & Existing Case Law.Certification of Svc Encl

ML19344A759
Person / Time
Site:	05000599, 05000600
Issue date:	08/15/1980
From:	Gogol E, Kodnor J, Runyon J CITIZENS AGAINST NUCLEAR POWER, KODNER, J.L.
To:	NRC COMMISSION (OCM)
References
ALAB-601, NUDOCS 8008220155
Download: ML19344A759 (9)

Text

T UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION IN THE MATTER OF THE APPLICATION ) Appeal from Atomic Safety and 0F COMMONWEALTH EDISON COMPANY, -

Licensing Appeal Board INTERSTATE POWER COMPANY, AND (Allen S. Rosenthal,. Chairman; IOWA-ILLIN0IS GAS AND ELECTRIC Dr. John H. Buck; Thomas S. Moore)

COMPANY FOR CONSTRUCTION PERMIT )

AND EARLY SITE REVIEW, HEARING AND ) Docket Numbers: S50-599 PARTIAL INITIAL DECISION ON SITE 550-600 SUITABILITY PETITION FOR NRC REVIEW Submitted on Behalf of: Citizens Against Nuclear Power, Inc.,

James Runyon and Edward Gogol By Jan L. Kodner, their Attorney August 15, 1980

.soosau n tyg

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION IN THE MATTER OF THE APPLICATION )

0F COMMONWEALTH EDIS0N COMPANY, Appeal from Atomic Safety and INTERSTATE POWER COMPANY, AND Licensing Appeal Board IOWA-ILLIN0IS GAS AND ELECTRIC (Allen S. Rosenthal, Chainnan; COMPANY FOR CONSTRUCTION PERMIT Dr. John H. Buck; Thomas S.

AND EARLY SITE REVIEW, HEARING Moore)

AND PARTIAL INITIAL DECISION ON SITE SUITABILITY Docket Numbers: 550-599 s 50-600 PETITION FOR NRC REVIEW Citizens Pursuant to 10 C.F.R. Section 2.786(b), Petitioner / Against Nuclear Power, Inc., James Runyon, and Edward Gogol, hereby petition the Nuclear Regulatory Commission for review of the July 29, 1980 Decision of the Atomic Safety and Licensing Appeal Board in the above captioned matter on the ground that the decision is erroneous with respect to certain important questions of law and policy.

BACKGROUND Citizens Against Nuclear Power, Inc. is a not-for-profit Illinois Corporation concerned with protecting the public and the individuals comprising the organization from the environmental, economic and physical safety hazards of nuclear energy. Its members reside throughout Illinois, including the Carroll and Cook County Regions.

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James Runyon resides, is employed, and owns property in Rock Island, Illinois, about 40 miles south of the proposed site.

Edward Gogol resides and owns property in Chicago, Illinois, about 133 miles east of the proposed site.

On April 5,1979, Commonwealth Edison, Interstate Power Company and Iowa-Illinois Gas and Electric Company (Applicants) applied for a construction permit as to two proposed nuclear units in Carroll County, Illinois, and also requested an early site review, hearing and partial initial decision on site suitability issues. On May 4,1979, the Nuclear Regulatory Commission issued notice of the creation of a licensing board to make findings on issues of site suitability and to render a partial decision, and provided that persons whose interests might be effected could seek leave to intervene. The notice specified that the review pertained to the suitability of the proposed Carroll County site with respect to: 9eology, hydrology, meteorology, terrestrial, and aquatic ecology, water use, regional demography, community characteristics, economy, historical and national landmarks, land use, noise considerations, and aesthetics. See 44 Fed. Reg.-26229, 26230 (5/4/79).

Citizens Against Nuclear Power, Inc., James Runyon, and Edward Gogol (Petitioners) filed a Joint Petition for Intervention in said early site review.

Petitioners' Amended Petition set forth 15 contentions for the early site review, which may be sumarized very briefly as' $110ws:

1. Inaccuracies of Applicants' Projected Need for Power;

2. (a) Availability of Alternative Sources of Energy; (b) Depletion of Uranium Supply; u

3. Financial Qualifications of Applicants;

4. Invalidity of Costs - Benefit Analysis Based Upon 40-Year Operating Life;

5. Financial Hardship on Rate Payers;

6. Labor and Capital Efficiency of Alternative Sources of Energy;

7. Amount of Spent Fuel to be Stored at Site and Duration of Said Storage;

8. Possibility of Site Becoming Permanent Dump for Spent Fuel;

9. Possibility of Site Becoming a Permanent Low and Intermediate Level Radioactive Waste Dump;

10. Failure of Applicants' to Indicate how Decommissioning Plan Would Occur;

11. Invalidity of Costs - Benefit Analysis Based Upon Unknown and Uncertain Cost of Waste Disposal and Decommissioning;

. 12. Ability of Applicants to Obtain Fuel;

13. ' Health Consequences of Licensing Power Plant;

14. Inadequacy of Insurance to be Obtained by Applicants in Light of the Price - Anderson Act;

15. Lack of Evacuation Plan and Improbability that Suitable Plan Would be Found.

At the September 19,'1979 Special Prehearing Conference, the Licensing Board orally denied contentions 1 - 14, reserving ruling on contention 15. At that time, the Board falso reserved ruling as to whether Petitioner Edward Gogol lacked standing because of the geographichl' distance between his ' residence and the proposed facility site.

On October 10, the Board determined that Mr. Gogol lacked standing (presumably due to insufficient proximatey to the proposed site) and further v- , .,

ruled that its determination as to contention 15 would be held in abeyance pending the publishing o'f the Three Mile Island NRC Staff Report or further Connission action.

On May 30,1980, the Board ruled onall 15 contentions, rejecting the same as issues in the early site suitability hearing, and thereby denied Petitioners' Joint Petition for Leave to Intervene.

On June 13, 1980, Petitioners filed their Notice of Appeal and Brief in Support of Appeal with the Atomic Safety and Licensing Appeal Board.

On July 29, 1980, the Appeal Board affirmed the decision of the Licensing Board.

SUMMARY

OF DECISION OF WHICH REVIEW IS SOUGHT Petitioners seek review of the Appeal Board's affirmance of the Licensing Board decision which held that none of the contentions were litigable at the early site review and which denied Petitioners' Joint Petition for Leave to Intervene.

WERE PETITIONERS' C0'NTENTIONS OF LAW PREVIOUSLY RAISED The Atomic Safety and Licensing Appeal Board decided Petitioners' Appeal solely upon Briefsfiled oy P.etitioners, Commission Staff, and Applicants. There was no oral argument or record involved. Pages 4 through 8 of Petitioners' Brief in Support of Appeal previously raised the questions of law as to the validity of contentions 1, 2, 4, 6, 7, 8, 9,10,11, and 13 under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.

- The Appeal ' Board considered.'some of Petitioners' arguments in its July 29, 1980 Opinion at Pages 12 through 16 t .

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WHY THE APPEAL BOARD'S DECISION IS ERR 0NE0US In affirming the decision of the Licensing Board, the Appeal Board advanced several reasons for its affirmance. First it noted that a Licensing Board must respect the terms of the Notice of Hearing published by t.,

Nuclear Regulatory Comission for the proceeding in question. As the Notice did not pertain to any of the issues raised in Petitioners' contentions, so reasoned the Appeal Board, all contentions were outside the purview of the proceedings. The Appeal Board held that NEPA did not impose any obstacle to the Comission's bifurcated environmental review process involved herein.

The Appeal Board specifically held that an early site review does not, of itself, amount to " major federal action significantly effecting the quality of human environment'!. ~ The Board further held that the sole bearing which NEPA has upon an early site review is that "the review has to be conducted in confomity with that Statute insofar as it encompasses issues pertaining to the suitability of the proposed site from an environmental standpoint".

The Board further noted the benefits served by the eariy site review and the practicalities behind why the review should be limited to issues of the type described in the. Notice o'f Hearing. Finally, the Board held that the cases cited by Petitioners do not lend any support to the notion that NEPA requires the contentions at issue to be considered at an early site review.

Petitioners certainly do not 'iestion q the wisdom of conducting a review as to the suitability of the propose'd site. However, Petitioners do contend that NEPA, the Counsel on Environmental Quality Regulations, Nuclear Regulatory Commission Regulations and existing case law require a contrary decision as to whether.an.early site review is a " major federal action',' thusly,

triggering the need for consideration of the rejected contentions at issue. Petitioners further contend that even if the bifurcation of NEPA considerations is permissible to an extent, there must be a showing of the need for the proposed facility at the very inception of any major federal action such as an early site review.

'WHY THE COMMISSION SHOULD GRANT REVIEW Petitioners believe that the question posed by their Appeal is a case of first impression. Further, there is significant evidence that the proposed Carroll County Facility will not be needed due to the lagging growth-rate in electrical consumption. To pursue this early site review without Applicantsfirst showing that there is a need for this facility would be to waste millions of dolla'rs at a time where Applicants are financially strapped and would further waste Commission financial and human resources. As this Petition involves an important matter that could significantly effect the environment, public health and safety and involves an extremely important procedural issue, the Comission should exercise its discretion in granting Petitioners' Petition for, Review.

WHEREFORE, Petitioners respectfully request that the Commission grant their Petition fev Review. '

Re,spectfully submitted, JAN L. K0DNER, ATTORNEY FOR PETITIONERS, CITIZENS AGAINST NUCLEAR POWER, INC.,

JAMES RUNYON, AND EDWARD G0G0L 230 West Monroe Street Suite 2026 Chicago, Illinois 60606

, (312) 782-9466

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION IN THE MATT R OF THE APPLICATION ) Appeal from Atomic Safety and 0F COMMONWEALTH EDISON COMPANY, ) Licensing Appeal Board INTERSTATE POWER COMPANY, AND ) (Allen S. Rosenthal, Chairman; IOWA-ILLIN0IS GAS AND ELECTRIC ) Dr. John H. Buck; Thomas S. Moore)

COMPANY FOR CONSTRUCTION PERMIT )

AND EARLY SITE REVIEW, HEARING AND ) Docket Numbers: S50-599 PARTIAL INITIAL DECISION ON SITE ) 550-600 SUITABILITY )

NOTICE OF FILING AND PROOF 0F SERVICE On the 15th day of August,1980, I, Jan L. Kodner, Attorney for Petitioners, Citizens Against Nuclear Power, Inc., James Runyon, ar:d Edward Gogol, filed a Petition for Review with the Nuclear Regulatory Commission by mailing the same to.the following parties:

Secretary, U.S. Nuclear Regulatory Attorney General, State of Iowa Commission Hoover State Office Building Washington, D.C. 20555 DesMoines, Iowa 50319 '

Attention: Chief Docketing and Service Section James Dubert, Iowa Socialists Party 129 Ash No. 2 Staff, Nuclear Regulatory Commission Ames, Iowa 50010 Washington, D.C. 20555 .

Attention: Richard Goddard, Esquire Joh u e Isham, Lincoln and Behle on Nuclear Energy Information One First National Plaza 206 North Main Street 42nd Flocr Galena, IH inois ,

Chicago, Illinois 60603 Attention: Philip Steptoe, Esquire .

Attorney General, State of Illinois 188 West Randolph Street Ja s Sch a a Public Interest 6 ften on u n er, Esquire 36 Memorial Union Iowa State University Edward Gogol Ames,. Iowa 50010 6105 West Winthrop Chicago, Illinois 60660 S

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James L. Runyon Thones J. Sorg, Director 1316 2nd Avenue Carroll, County Environmental P.O. Box 307 Coalition Rock Island, Illinois 61201 305 West Coal Mt. Carroll, Illinois 61053 JAN L. KODNER, ATTORNEY FOR PETITIONERS, CITIZENS AGAINST NUCLEAR POWER, INC.,

JAMES RUNYON, AND EDWARD G0GOL 230 West Monroe Street Suite 2026 Chicago, Illinois 60606 (312) 782-9466 4

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