ML19326A853

Applicants' Brief in Opposition to Exceptions Filed by Living in Finer Environ & Coalition for Safe Nuclear Power. Exceptions Should Be Denied

ML19326A853
Person / Time
Site:	Davis Besse
Issue date:	04/20/1971
From:	Charnoff G CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML19326A850	List: ML19326A849 ML19326A853
References
NUDOCS 8003050757
Download: ML19326A853 (10)

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Appeal Board

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In the Matter of THE TOLEDO EDISON COMPANY AND THE CLEVELAND ELECTRIC ILLUMINATING Docket No. 50-346 COMPANY Davis-Besse Nuclear Power Station APPLICANTS' BRIEF IN OPPOSITION

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TO EXCEPTIONS FILED BY LIFE AND COALITION FOR SAFE NUCLEAR POWER I. INTRODUCTION Intervenors Living in a Finer Environment (here-after " LIFE") and Coalition for Safe Nuclear Power (here-af ter " Coalition") have separately filed exceptions to the initial decision of the Atomic Safety and Licensing Board dated March 23, 1971, which granted a construction permit to.

Applicants for the Davis-Besse Nuclear Power Station.-

With one exception, each of the points raised by intervenors related to the National Environmental Policy Act and AEC's implementation of that Act. The only other con-tention is - Coalition's Exception No. 6, which relates to the Board's exclusion of testimony on the safety procedures for transporting radioactive _ materials from the plant site.

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II. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 The Board refused to permit non-radiological environmental effects as matters in controversy at the public hearing. This decision was in complete accord with 10 CFR Part 50, Appendix D, which permits such issues to be raised only at those proceedings for which the notice of hearing is published after March 4, 1971. Thus, although

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all of Coalition's Exceptions and LIFE's~ Exceptions Nos. 4 and 5 are phrased in terms of challenges to decisions of the Board, they are in reality a challenge to the validity of Appendix D itself.

Coalition chose to rely upon LIFE's brief to support its NEPA exceptions. Despite LIFE's assertion that it would

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not- repeat in detail what it had said in its Brief Re: Imple-mentation of National Environmental Policy Act and LIFE.'s Reply Brief Regarding Implementation of National Environmental Policy _ Act of 1969, LIFE's brief in support of its exceptions is largely a verbatim copy of those earlier briefs. Conse-quently, the arguments which LIFE makes have, in large part, already been dealt with in Applicants ' Brief in Reply to LIFE's Brief Relating to AEC's Compliance with the National Environmental Policy Act of 1969, submitted on March 4, 1971, and we -respectfully direct the Appeal Board's attention to that brief and the following supplementary considerations.

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NEPA does not explicitly require that environmental

, considerations be the subject of a public hearing. Nor does NEPA establish immutable er inflexible timetables or schedules for its implementation. The provisions of NEPA itself direct Federal _ agencies "to use all practicable means, con-sistent with other essential considerations of national policy" in implementing the Act. Section 101(b) . Indeed, Section 103 anticipates a review of agency policies extending at least until July 1,1971. Under that section agencies must, inter alia, review their existing regulations to determine whether there are any deficiencies interfering with full compliance with NEPA. Agencies are given until July 1 '1971 to propose to the President any measures 3

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(including amendments to regulations) necessary to assure full compliance. The proposed Guidelines of the Council on.Environnental Quality impose a deadline of May 1,1971 for implementing the -Council's guidline fer holding public hearings whenever appropriate. Paragraphs 3, 12, 36 Fed.

Reg.1398,1400 (January 28, 1971). AEC clearly satisfied both deadlines by issuing its Appendix D on December 4,1970.

LIFE alleges that AEC 's only justification for the transition period was one of " administrative convenience."

Brief in Support of LIFE's Exceptions.to Initial Decision, page

2. Applicants are. unaware of any attempt by the Commission

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to justify the transition period for reasons of "administra-tive convenience.", The statement of consideration for ~

the December 4,1970 Appendix D specifically states that the transition period was necessary "to avoid unreasonable delays in the con-struction and operation of nuclear power plants urgently needed to meet the national requirements for electric power." 35 Fed.

Reg. 18470.

The statement of consideration documents this need by referring to statements of the Chairman of the Federal Power Commission, the Chairman of the Council of Economic Advisors, and the Director of the Office of Emergency Pre-paredness, as well as a report by the Energy Policy Staff of the Office of Science and Technology. 35 Fed. Reg.

,18472. The need for electric power is hardly the equiva-lent of AEC's " administrative convenience . "

The Commission's position is in accord with the views of the Council on Environmental Quality. In a letter quoted, in pa~rt, by LIFE in its brief, p. 4, written by the Chairman of the Council on Environmental Quality to Congress-man John Dingell, Chairman of the House Subcommittee on Fisheries and Wildlife, Mr. Russell E. Train, while, perhaps, implicitly supporting the proposition that detailed environ-mental statements should be considered in public hearings, clearly. stated that the Council recognized the propriety of evolving appropriate procedures for public consideration of I

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such statements,-

"Our view is that the National Environmental Policy Act is so general in its language, so

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innovative 1.n its procedures and so all-embrac-ing in the range of government activities included that, rather than make new across-the-board requirements we should evolve appropriate procedures for tne various major categories of activity involved."

1 ELR 10009 (emphasis added).

While non-radiological matters appropriately were not considered in the public hearing, it should be clear that in the review of the proposed Davis-Besse Nuclear Power Station, environmental considerations have been thoroughly considered in compliance with NEPA. Radiological environ-mental effects received comprehensive consideration under the Commission's long-standing procedures. ' Environmental

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comments from appropriate agencies were obtained, the detailed environmental statement was prepared, and all of this material was provided to the Council on Environmental

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Quality and other interested parties. Water quality matters are being dealt with under the procedures established by Section 21(b) of the Federal Water Pollution Control Act.

Applicants' Construction Permit is specifically conditioned on compliance with that Act. Construction Permit No.

CPPR-80,-para. 2.E. The permit is further conditioned on Applicants' observance of all validly imposed environmental ata.ndards which the Commission determines are applicable to the Davis-Besse; Nuclear Power Station (other than water

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quality matters covered by Section 21(b) of the Federal

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Water Pollution Control Act, and radiological matters which are dealt with through the Cc= mission's existing procedures).

Para. 2.D. Through these two conditions, AEC's regulatory

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process will continuously be available to carry out any necessary enforcement.

LIFE's Exceptions Nos. 1, 2, and 3 attack narrow factual statements by the Board and can be disposed of on similarly narrow grounds. Exceptions Nos. 1 and 2 are as follows:

1. Paragraph 49 -- in which the Board finds that "the position taken by LIFE in this proceeding was formally and expressly urged upon the Commission a significant

, period of time prior to December 4, 1970."

2. Paragraph 50 -- in which the Board finds "there is nothing new of such substance here presented to warrant the Board to con-clude the same issue should again be referred to the Commission. LIFE has not sustained the heavy burden of showing the Commission abused its discretion in promulgating Ap-pendix D.".

The statements by the Board that LIFE's position on NEPA was urged upon AEC prior to December 4,1970 (the date that Appendix D to 10 CFR, Part 50 was published) and that there was nothing new of substance in LIFE's contentions regarding NEPA are completely accurate. The " Discussion of Comments Received in Response to Notice of Proposed Rule-making Published June 3, 1970," part of the statement of

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consideration for the December 4,1970 Appendix D, makes

~ clear that AEC considered the suggestion of including in the public hearing evidence on non-radiological environ-

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"One comment urged that the atomic safety and licensing board should hear evidence concerning environmental matters, pass

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on the adequacy of the Detailed Statement, and make findings concerning environmental impact." 35 Fed. Reg.18471.

Having considered this suggestion, AEC decided to give atomic safety and licensing boards, for proceedings noticed for

' hearing after March 4, 1971, the power to hear evidence and make findings on environmental matters.

As for the Board's finding that LIFE has not met the heavy burden of showing an abuse of discretion on the

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Commission's part, Applicants respectfully refer the Appeal

- Board to Applicants ' Brief in Reply to LIFE's Brief Relatin5 to AEC's Compliance with the National Environmental Policy Act of-1969, pp. 11-12.

LIFE 's Exception No. 3 attacks the Board 's finding that there is "no requirement in the Commission's regulations

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made part of 'the evidentiary record. " This is, of course, an accurate statement of Appendix D as it applied to this 4

proceeding. See paragraph 2, Appendix D (April 2, 1970);

. paragraph 7, Proposed Revised Appendix D (June 3,1970);

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paragraph 13, Appendix D (December 4, 1970). LIFE then challenges the Board's finding that the " procedure required by Appendix D of Ap:-il 2, 1970, as revised June 3, 1970, was followed by the Applicants and the Staff." As the trans-cript clearly indicates, pp. 495 >97, the detailed environ-mental statement was identified and marked for identification to show compliance with Appendix D in order that it could accompany the record through the Commission's review pro-cesses. This fully complies with the requirements of Appendix D, as well as those of NEPA.

The Board properly found that no substantial challenge to 10 CFR, Part 50, Appendix D was presented as is required in any challenge to the Commission's regula-tions in a licensing proceeding.

III. TRANSPORTATION OF RADIOACTIVE MATERIALS Coalition's Exception No. 6 challenges the refusal by the Board to consider in the hearing the safety procedures which will be used in transporting radioactive materials from the sit.e of the Davis-Besse Nuclear Power Station.

The transportation of radioactive materials is not

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within the scope of a reactor construction permit hearing such as the instant proceeding. See In the Matter of Northern ,

States Power Coreany, Docket No. 50-263, Initial Decision, Attachment .D, p. 4, which by Memorandum of the Atomic Safety

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1971, consti-Board, dated February 25, Detailed reg and Licensing Appeal of the Commission. d separate tuted the final action Transportation (DOT) an nsportation of solid of the Department of tions of the AEC govern the tramaterial and spent fu regulations waste containing radioactive recently promulgated waste ceeding reference to the Coalition's application to this description pro 4 and its general 10 CFR Section 50.3 aThat section,f requiring provisions a is in error. a construction permit o con-application for d shipment of solid waste in the information for packaging, stcrage, anmaterials, nsite is toprocedures provide taining radioactive evaluate the safety of o i ment.

with which the AEC canand preparation for sh p deal with for waste handling, storageentirety is intended at the to its from activities Section 50.34a in which is releases of radioactivity arisingoffsite transportation The un-It does not apply to lations.

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specific AEC and DOT reguintrodu covered by otherof Coalition's effort relevance to of Section timeliness i g and the an issue in the proceed n was fully considered in as 0 23, and

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50.34 a to offsite transportationd (Tr . pp . 120 d also shows that th the public hearing recorThe public h 1398-99). required by Section 50. 219-20, 1394-97).

information application (Tr. pp.1 Applicants in the

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CONCLUSION For the reasons stated above, the Exceptions filed by Coalition and LIFE in this proceeding shonld be denied.

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Respectfully submitted, SHAW, PITTMAN, POTTS ,

TROWBRIDGE & MADDEN

! n Y By

(VX[ (D-MV d'/

- Gerald Charnoff ,;

Counsel for Applicah'ts.

Dated:. April 20, 1971

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