ML19320A647
| ML19320A647 | |
| Person / Time | |
|---|---|
| Site: | 05000599, 05000600 |
| Issue date: | 06/27/1980 |
| From: | Bielawski A, Mark Miller COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | |
| References | |
| NUDOCS 8007020462 | |
| Download: ML19320A647 (26) | |
Text
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[Nh hJ UNITED STATES OF AMERICA -!
$9 pV* c NUCLEAR REGULATORY COMMISSION . te < g ..
DEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOA '4 p' In the Matter of )
)
COMMONWEALTH EDISON CO. ) Docket Nos. 550-559 et al., ) and 550-600 (CARROLL COUNTY SITE) )
APPLICANTS' BRIEF IN RESPONSE TO PETITIONERS' APPEAL FROM DENIAL OF INTERVENTION Submitted on Behalf of:
- Commonwealth Edison Company Interstate Power Company Iowa-Illinois Gas and Electric Company By:
Michael I. Miller Alan P. Bielawski Their Attorneys ISHAM, LINCOLN & BEALE Suite 4200 One First National Plaza Chicago, Illinois 60603 (312)558-7500 DATED: June 27, 1980
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S TABLE OF CONTENTS Table of Authorities ....................................... i I. Procedural History Relevant To Petitioners' Appeal ................................................ 1 4
II. Issues Presented For Review ...........................
4 III. Summary of Argument ...................................
Argument .............................................. 6 IV.
A. The Commission's Rules Do Not Require A Full NEPA Review As Part of Every Early Site 6
Review ...........................................
- 1. 10 CFR 551.5 (a) (1) Is Not Applicable To Early Site Review ........................... 6
- 2. The Commission's Procedures Governing Early Site Review Do Not Require That A Full NEPA Review Be Completed At The Early Site Review Stage of Proceedings On A Construction Permit Application ........ 7
- 3. 10 CFR S2.758 Prohibits Any Challenge .
To The Validity Of the Early Site Review Regulations .......................... 11 B. NEPA Does Not Require The Issues Raised By Petitioners To Be Considered At This Early l Site Review ...................................... 12 C. The Licensing Board Properly Dismissed Edward Gogol From This Proceeding For Lack of l Standing ......................................... 15 ,
1 V. Conclusion ............................................ 18 l
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TABLE OF AUTHORITIES s
COURT DECISIONS Andrus v. Sierra Club, 442 U.S. 347 (1979) ................ 12 Gage v. Commonwealth Edison Co., 356 F.Supp. 80 UN . D . Ill. 1972) .......................................... 13 Kleppe v. Sierra Club, 427 U.S. 390 (1976) ................ 12 LaRaza Unida v. Volpe, 337 F.Supp. 221 (N.D. Calif.
1971), affirmed, 438 F.2d 559 (9th Cir. 1973),
cert. denied, 409 U.S. 890 (1972) ......................... 14 Natural Resources Defense Counsel v. United States NRC, 539 F.2d 824 (2d Cir. 1976), vacated and remanded, 434 U.S. 10'0 (1978) ...................................... 13 Scientists Institute For Public Information, Inc.
- v. AEC, 481 F.2d 1079 (D.C. Cir. 1973) .................... 13 AGENCY DECISIONS Portland General Electric Co. (Trojan Nuclear P13.z t) , ALAB-534, 9 NRC 287 (1979) ....................... 9, 16 Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2) , ALAB-277, 1 NRC 539 (1975) ............................................... 10 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143 (1977) .............. 16, 17 Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418 (1977) .............. 17 i
4 STATUTES National Environmental Policy Act of 1969,
- 42 USC SS4321 et seg. ..................................... 7 42 USC S4332 .77.......................................... 7, 12 REGULATIONS 10 CFR S2.101(a-1) ........................................ 7, 8, 9 8
10 CFR S2.604 .............................................
10 CFR S2.605 ............................................ 11, 13 10 CFR S2.606 ............................................. 9 10 CFR S2.714(b) .......................................... 16 10 CFR S2.758 ............................................ 11 10,CFR 550.10(e) .......................................... 7 10 CFR 550.30(f) .......................................... 8 10 CFR 550. 34 (a) (1) ....................................... 8 10 CFR S51.5 ............................................. 7, 12 40 CFR S1500.6 ........................................... 12 40 CFR S1501.2 ............................................ 15 OTETR AUTHORITIES 41 Fed. Reg. 16835 (April 22, 1976) ...................... 11, 15 42 Fed. Reg. 22882 (May 5, 1977) ......................... 10 ii
. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
COMMONWEALTH EDISON CO. ) Docket Nos. 550-559 et al., ) and 550-600 (CARROLL COUNTY SITE) )
APPLICANTS' BRIEF IN RESPONSE TO PETITIONERS' APPEAL FROM DENIAL OF INTERVENTION I.
Procedural History Relevant to Petitioners' Appeal on April 5, 1979, Commonwealth Edison Company, Interstate Power Company and Iowa-Illinois Gas and Electric Company (" Applicants") initiated an application for con-struction permits for the Carroll County Station, Units 1 and 2, and requested that the Nuclear Regulatory Commission ,
(" Commission" or "NRC") conduct an early site review and hearing and reach an early partial decision on issues of site suitability. Included as an attachment to this sub-mittal was a document entitled " Proposed Findings on the Issues of Site Suitability on which Commonwisith Edison Company is Requesting Review."
On May 4, 1979, the Commission published a notice announcing that a hearing would be held in respect of Appli-cants' request for an early site review, and authorized the filing of petitions for leave to intervene in this proceed-l
0 ing by any person whose interest ma" be affected thereby.
Citizens Against Nuclear Power ("CANP"), Tames Run-yon and Edward Gogol (jointly referred to as " Pet itioners") ,
as well as others, filed a " Petition for Intervention" in this proceeding. Petitioners predicated their standing to intervene upon the proximity of their residences (and, in the case of C7.NP, upon the residences of some of their mem-bers) to the proposed site of the Carroll County Station.
In its Order entered July 30, 1979, the Atomic Safety and Licensing Board (" Licensing Board") scheduled a Special Prehearing Conference to be held on September 19, 1979.
Prior to the Special Prehearing Conference, Petitioners submitted an Amended Petition For Leave To Intervene, which
, sct forth the contentions Petitioners desired to introduce in the proceeding. Petitioners' contentions did not raise matters within the r. cope of the issues for which Applicants ultimately
- seek review in this early site suitability proceeding.
In general, Petitioners' contentions relate to the following subject matters: (1) need for power (Contention 1);
- At the time Petitioners filed their Amended Petition, Applicants' Proposed Findings included broadly-worded findings relating to need for power (Proposed Finding 8) and end-of-life decommissioning of the plant (Proposed Finding 131). During the course of the Special Pre-hearing Conference, Applicants requested leave to with-draw these Proposed Findings based upon Applicants' belief that these subjects were inappropriate for con-sideration in early site review proceedings (Tr. at 36). Applicants' request was granted by the Licensing Board (Tr. -at 45) .
f
. (2) alternative sources of energy (Contentions 2, 6, 12);
(3) Applicants' financial qualifications (Contention 3);
(4) overall cost / benefit balance (Contentions 4,11); (b) the cost to ratepayers of nuclear power (Contentions 5 and 11);
(6) plant decommissioning (Contention 10); (7) general con-cerns regarding the inability to design and operate nuclear plants without undue risk to the public health (Contention 13);
(8) inadequacy of insurance coverage (Contention 14); and (9) general inability to provide for emergency evacuation (Contention 15). Applicant has, for the Board's convenience, attached a copy of Petitioners' contentions to this Brief (see Attachment A).
On September 19, 1979, a Special Prehearing Con-ference was held. Thereafter, on October 10, 1979, the Licensing Board entered its " Memorandum of Special Prehearing Conference And Order" in which'it denied the intervention of .
Edward Gogol for lack of standing. The Licensing Board also tentatively dismissed 14 of the 15 contentions submitted by Petitioners and held in abeyance the determination of the acceptability of Petitioners' final contention. The Licens-ing Board also granted Applicants and Petitioners leave to l
I file briefs in support of contentions which were previously rejected or in support of dismissing contentions which were .
l tentatively accepted. These briefs were timely filed. j On May 30, 1980, the Licensing Board entered its
" Memorandum Ar.d Order Re: Contentions," wherein it dismisL'd all of the contentions submitted by Petitioners for failure i
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to raise issues which are appropriate in early site suita-bility proceedings. Petitioners have appealed from the Licensing Board's denial of Petitioners' contentions 1, 2, 4, 6, 7, 8, 9, 10, 11 and 13, on the grounds that pursuant to NEPA and the Commission's regulations the issues raised in these contentions must be considered in this proceeding, and from the denial of standing of Edward Gogol. Pursuant to 10 CFR S2.714a, Applicants file this brief and respect-fully request, for the reasons set forth below, that the Licensing Board's decision be sustained.
II.
Issues Presented for Review The issues raised by Petitioners' appeal are:
- 1. Whether the Commission's regulations require that all environmental considerations be addressed in an early site suitability proceeding;
- 2. Whether the Commission's regulations are con-sistent with the requirements of NEPA; and
- 3. Whether an individual who resides 130 miles from a proposed nuclear power station has standing to inter-vene in an early site suitability proceeding.
III.
Summary of Argument Petitioners argue that it was error for the Board to rule that NEPA does not require that issues raised in various of Petitioners' contentions need be resolved in an 1
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early site review proceeding. Applicants believe that Peti-tioners have misconstrued the decision of the Licensing Board. While the Board's ruling on Petitioners' contentions is far from a model of clarity, it appears that the Board held only that those portions of the Commission's Rules of Practice governing early site review proceedings do not require and, indeed, contemplate that the full scope of review required under NEPA need not be completed as part of an early site review proceeding. The Commission's regula-tions governing early site review proceedings expressly provide that the applicant select those issues on which review is sought and contemplate that such a proceeding would involve less than a full NEPA review.
To the extent that Petitioners argue that these provisions themselves are inconsistent with NEPA, the Licens-ing Board and this Board, in reviewing the Licensing Board's decision, are prohibited by 10 CFR S2.758 from entertaining this argument. In any event, Petitioners' interpretation of NCPA and the scope of the proposed federal action in this early site-review proceeding is erroneous. Although the Commission is required to comply with Section 102 (2) (C) of NEPA prior to issuance of an authorization for a private party to engage in activities which significantly affect the quality of the human environment, it is not required to complete its NEPA review prior to the i'suance of a partial initial decision which does not authorize such activities.
Nor does NEPA require that the environmental review take
- t place at any particular stage of a licensing proceeding, so long as the NEPA review is completed prior to commencement of construction. In short, the Commission's Rules of Prac-tice expressly provide for less than a full environmental assessment at the early site review stage of hearings on a construction permit application; the validity of these pro-cedures are not subject to challenge in this proceeding, absent specific authorization by the Commission; and, in any event, the challenge itself is based on an erroneous inter-prctation of NEPA, and the cases dec'ided thereunder and is, therefore, without merit.
Finally, under well-established precedent, a petitioner basing his standing to participate in NRC pro-ceedings upon his residence and ownership property located 133 miles from the proposed site has no right to intervene.
IV.
Argument A. The Commission's Rules Do Not Requira A Full NEPA Review As Part Of Every Early Site Review
- 1. 10 CFR S51.5 (a) (10) Is Not Applicable To Early Site Review.
In arguing that the Licensing Board erred in dis-missing Petitioners' Petition to Intervene, Petitioners assert that, although the Commission's rules do not expli-citly state that an early partial decision on site suitabi-lity issues must be preceded by the full review and consi-deration of the matters set forth in Section 102(2) (c)
. (42 USC 4332) of NEPA (42 USC 554321 et seq. ) ,
- 10 CFR S51. 5 (a) (10) does so require by implication. Petitioners have misinterpreted 10 CFR S51.5 (a) (10) , which applies only to "any other action which the Commission determines is e major commission action significantly affecting the quality of the human environment" (emphasis supplied). As we show below, the Commission's regulations relating to early site review clearly evince the Commission's determination that an early decision on site suitability issues is not such a major Commission action. Rather, early site review is one step in the review of a construction permit application i
subject to 10 CFR S51.5 (a) (1) . Although 10 CFR 551.5 (a) (1) requires that the environmental review be completed prior to issuance of a construction permit, it does not specify the precise timing of completion. The earliest time specified in the Commission regulations for the completion of the environmental review is prior to the grant of limited con-struction authorization under 10 CFR 550.10(e).
- 2. The Commission's Procedures Governing Early Site Review Do Not Requir3 Tha' ' Full NEPA Review Be Completed At The Early Sit. eview Stage of Pro-ceedings On A Construction Permit Application.
10 CFR S2.101(a-1) provides that an applicant for a construction permit "may request that the Commission con-duct an early review and hearings and render an early par-tial decision in accordince with Subpart F or issues of site
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- Throughout this Brief, "NEPA" refers specifically to ,
Section 102(2) (C) of that Act. j l
. . suitability within'the purview of the applicable provisions of Parts 50, 51, and 100 . . .." In such casec, an appli-cant for a license to construct a nuclear power reactor may submit the information required of applicants in four parts.
Part one of the information required must include any infor-mation required by 10 CFR 550.34 (a) (1) (the "PSAR") and 10 CFR 550.30 (f) (the "ER") "which relates to the issue (s) of site suitability for which an early review, hearing and
" together with inter alia partial decision are sought . . . ,
! " proposed findings on the issues of site suitability on which the applicant has requested review . . .. (10 CFR S2.101(a-1) (1) ) . If an applicant for a construction permit requests an early partial initial decision on the issues of site suitability pursuant to S2.101(a-1) , then the notice of hearing setting forth the icsues to be considered "shall be
[ modified so as to relate only to the site suitability issue .
or issues under review." (10 CFR S2.604 (a)) .
These provisions clearly contemplate that the ap-4 plicant select the site suitability issues on which it seeks an early partial decision.* Moreover, because the jurisdic-tion of the Licensing Board assigned to conduct early hear-ing on site suitability issues is limited to consideration
- ~ The Commission may, however, decline to initiate early hearings where the information supplied by the appli-cant indicates further review would be likely to iden-tify superior-alternative sites or an early decision on a limited number of issues would not be in the public interest (10 CFR S2.604(b)).
. of those issues noticed for hearing, the hearings themselves and, thus, Petitioners' contentions, must be limited to those issues selected for early review by the applicant.*
See: Portland General Electric Co. (Trojan Nuclear Plant),
ALAB-534, 9 NRC 287 (1979).
The Commission, in providing that the applicant select the issues on which it sought early site review, clearly recognized that the applicant might not seek review of all issues which, under NEPA and 10 CFR Part 51, need be resolved prior to the authorization of construction. The regulations require that only the portions of applicants' ER relevant to the issues on which an npplicant seeks review be filed with a request for early site review. (10 CFR 52.101(a-1) ) .
Moreover, the early site review regulatiois provide cxpli-citly that no limited work authorization be issued pursuant to Part 50 without completion of the full review required by Section 102(2) (C) of NEPA and 10 CFR Part 51 (10 CFR S2.606).
- In this appeal, Petitioners do not argue that any of the contentions which they assert were erroneously re-jected fall within the scope of the issues noticed for hearing or within the scope of the proposed findings submitted'by Applicants and, thus, by inference, appear to concede that they do not. We note that Contentions 1, 2, 4, 6, 10 and 11 all relate to findings which Appli-cants expressly indicated they did not seek at this stage of the proceeding; i.e., those issues related to need for power (Tr. at 36 and 45), decommissioning (Tr.
at 36 and 45), alternative sources of energy (Proposed Finding 136) and cost / benefit balancing (Proposed Finding 117). And, Applicants have not been able to discern any relationship between the remaining conten-tions and the issues on which early findings P 1e been requested.
- These provisions would be meaningless if completion of the 4
full review under NEPA and Part 51 were required in connec-tion with all partial decisions on site suitability issues.
Indeed, in promulgating the regulations governing early site review, the Commission stated "[f]inally, the effective rule provides that only one review of site suitability issues could be conducted prior to the full NEPA construction permit review." (Emphasis supplied) (42 Fed. Reg. 22882 (April 22, 1976)).
Petitioners' argument that "need for power most urgently warrants consideration" (Brief, p. 8) at this stage of the construction pernit hearings canriot be reconciled with the Commission's Statement of Consideration published with the early site review regulations. In discussing the criteria upon which the Commission may decide not to ini-tiate an early review, the Commission stated that such cri-teria were consistent with current practices as reflected in Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2) , ALAB-277,1 NRC 539 at 547 (1975)
(4 2 Fed. Reg. 22882 (May 5, 1977)). The Douglas Point deci-sion specifically found that it would be appropriate to resolve certain site suitability issues, even though the applicant had postponed planned construction of the facility and withdrew its request that the Licensing Board make findings on need for power. Moreover, need for power is an issue on which early findings are unlikely to retain their
1 validity in subsequent reviews and, therefore, not particu-larly suited for early review. (10 CFR S2.605 (b) (2) ) .
If the arguments advanced by Petitioners on the scope of review required during the early site review stage were accepted by the Appeal Board, the salutary purposes of early site review would be frustrated. The primary purpose of early site review is to screen out unacceptable sites prior to the time an applicant has developed all of the information eventually needed to support a construction per-mit application. (41 Fed. Reg. 16835 (April 22, 1976)).
This purpose is obviously incompatible with Petitioners' apparent position that all matters which must be resolved prior to issuance of a construction permit are ripe for adjudication at this early stage of partial review.
- 3. 10 CFR S2.758 Prohibits Any Challenge To The Validity Of The Early Site Review Regulations.
Althc..gh they do not so state, the arguments ad-vanced by Petitioners cannot be reconciled with the express language of 10 CFR S2.101(a-1) and 10 CFR Part 2, Subpart F and appear to challenge these provisions as being incompati-ble with the requirements of NEPA. Neither the Lic'ensing Board nor this Board are empowered to consider such an argu-ment. (10 CFR S2.758). In any event, as we show below, the Commission's rules governing early site review are well within the scope of the discretion entrusted to federal agencies pursuant to NEPA as interpreted by the courts.
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.. B. NEPA Does Not Require.The Issues Raised By Appellants To Be Considered At This Early Site Review 3
The regulatory structure providing for early site review and the sequential consideration of technical and environmental issues is entirely consistent with the require- l l
ments of NEPA. NEPA requires "that environmental concerns l be' integrated into the very process of agency decision I
making." Andrus v. Sierra Club, 442 U.S. 347, 350 (1979).
To accomplish this goal, NEPA mandates an environmental 4
impact statement prior to " major Federal actions signifi- ,
cantly affecting the quality of the human environment." !
- (24 USC 4332). It is, however, within the province of the ;
agency's discretion as to when "during the germination pro-
- cess" of a. federal action "an impact statement should be i- ,
- j. prepared." Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976) .
- The major federal action involved in the case at hand is the issuance of Applicants' construction permit.
(10 CFR SSI.5 (a) (1)) . The fundamental purpose of the early l site suitability provisions is to permit an applicant to -
. seek an even earlier review'of site suitability issues than
~
j would be required under NEPA or the Commission's prior regulations governing review of construction permit applica-
! tions. Thus, the'early site review ~ regulations merely ,
- See also the Council on Environmental Quality Regula-tions,140 CFR S1500.6, which provides:
i .
The definition of major action significantly af-fecting the environment is the responsibility of eaca Federal agency, to be carried out against the background. of its own particular operations.
12-y- r-.-+ . - - - g- - ,+ e-p, ,,y- -m--.- g wegy.w y -
4
. authorize the commencement of the environmental review of certain issues in advance of the point in time required by the Commission's prior regulations and NEPA. And, the early site suitability regulations provide safeguards to insure that the early review and hearings serve their intended purpose by granting the Commission the discretion to deter-mine on an ad hoc basis whether certain issues should not be entertained at that stage on the ground that, inter alia, the findings on these issues would most likely not retain their validity in later reviews. (10 CFR S2.605(b)). As such, these procedures not only comply with NEPA, but they also further the intended purposes of that Act.
Petitioners misconstrue existing case law in arguing that an environmental impact statement is required at the early site review stage. The cases cited by Petitioners merely hold that the environmental review under NEPA must precede the activities from which adverse environmental con-sequences would flow.* Early site review is clearly dis-
- In Natural Resources Defense Council v. USNRC, 559 F.2d 824 (2d Cir. 1976), vacated and remanded, 434 U.S. 1030 (1978) (remanded to consider question of mootness) , the court held that it was impermissible to license indivi-dual facilities, the viability of which depended on the wide-scale uce of plutonium, without first considering the environmental consequences of the wide-scale use of plutonium. Similarly, Scientists Inst. For Pub. Info.,
Inc. v. AEC, 481 F.2d 1079 (D.C. Cir. 1973) held that
.the Atomic Energy Commission could not devote substan-tial funds to develop an active new technology without first evaluating the environmental consequences of the technology. In Gage v. Commonwealth Edison Co., 356 F.Supp. 80 (N.D. Ill. 1972), the court simply held that activities of a private party which do not preclude (Cont. next page) l
, tinguished from the situations discussed in those cases because a decision on these issues will not authorize appli-cants to engage in activity adversely affecting the environ-ment.. Indeed, unlike the situation in LaRaza Unida v. Volpe, 337 F.Supp. 221 (N.D. Calif. 1971), affirmed, 488 F.2d 559 (9th Cir. 1973) , cert. denied, 409 II.S. 890 (1972), applicants here are explicitly precluded from uaking any such action absent completion of the full review mandated by NEPA.
(10 CFR S2.606(a)).
Petitioners exhibit their cisunderstanding of the early site review proceeding when they claim that early review of site suitability issues " serves as much to affect the environment as does a Commission decision to grant a permit to construct a specific plant." A decision favorable i
to an applicant on an early site review request authorizes no activities whatsoever. On the other hand, an unfavorable decision could prevent the commitment by applicants of the i
resources necessary to finalize a full construction permit l application for a nuclear power reactor at the site. )
- Cont. from'page 13 subsequent meaningful environmental review need not be preceded by a NEPA review. In contrast, the court required an environmental impact statement to be made in LaRaza Unida v. Volpe, 337 F.Supp. 221 (N.D. Calif. J 1971), affirmed, 488 F.2d 559 (9th Cir. 1973), cert. i denied, 409 U.S. 890 (1972), based, in part, upon Department of Transportation guidelines defining the challenged programs as " federal actions" and the fact that the environmental damage was occurring on an ongoing and continuing basis and, thus, could not be meaningfully evaluated at a later date.
., .The Council on Environmental Quality Regulations states that "[algencies shall integrate the NEPA process with other planning at the earliest'possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts." et0 CFR S1501.2). The early review of site suitability issues implements this mandate. If anything, this procedure will minimize the resources applicants expend in the pre-construction license stage. In proposing the early site review, the Commission determined that early i review decision on site suitability issues offered several advantages over the prior licensing practice, including early resolution of site-related problems prior to the commitment by applicant of the substantial resources needed to prepare a complete application for construction permit and improvement in the efficiency of the licensing process and in enhancement of public participation at the crucial early stage of the licensing process. (41 Fed. Reg. 16835).
Thus, contrary to Petitioners' contention, the early site review proceeding is not only consistent with, but also enhances, the Commission's ability to conduct the environ-mental review required by NEPA.
Further, contrary to Petitioners' apparent belief, the admini,strative resources the Commission must expend to conduct this review do not constitute the irretrievable com-mitment of resources within the meaning of NEPA. Quite obviously, NEPA cannot be interpreted to require that an
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environmental analysis be completed prior to the time the agency commences its environm>ntal review.
C. The Licensing Board Proyerly Dismissed Edward Gogol From This Proceeding Fo, Lack Of Standing The Licensing Board properly rejected all of the contentions filed on behalf of.Mr. Gogol. Consequently, pursuant to 10 CFR 52.714 (b) , Mr. Gogol, as well as the other Petitioners, should not be authorized to participate as parties in this proceeding, regardless of the outcome of the issue addressed in this section'of the brief. Nonethe-
. less, as will be established below, Mr. Gogol's individual petition was properly dismissed for lack of standing.
The principles governing the standing of an individual to participate as a party in proceedings before i i
I the Commission were addressed by this Board in Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143 at 1144-45 (1977).
Under the Atomic Energy Act [Section 189a.,
42 USC 2239(a)] and our Rules of Practice
[Section 2.714 (a) , 10 CFR S2.714 (a)] , one seeking to intervene as a matter of right in an NRC proceeding must assert an interest
[which] may be affected by that proceeding.
It is now settled that, in determining whether such an interest has been sufficiently alleged, the adjudicatory boards are to apply contem-poraneous judicial concepts of standing.
More specifically, the petitioner for inter-vention must allege both (1) " some injury that has occurred or will probably result from the action involved" and (2) an interest
" arguably within the zone of interests" to be i
protected or regulated by the statute sought to be invoked. Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2),
CLI-76-27, [4 NRC 610, 613-14 (1976)].
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In the Black Fox decision, in rejecting a petition to intervene by one petitioner, the Appeal Board stated as follows:
i:
For it is perfectly clear that, absent the existence of such ability, there is no con-ceivable justification for allowing Teeti-tioner's] participation in the proceeding on the issue. As the Licensing Board pointed out, (petitioner's] interest in the construc-tion and operation of Black Fox is " remote"-
resting entirely upon her occasional trips from her residelice in Oklahoma City (125 miles from the site) to Tulsa (23 miles from the site) and other unspecified com-munities asserted to be "near" the site.
5 NRC at 1150 (emphasis supplied). See also Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2) , ALAB-413, 5 NRC 1418, 1421 (1977) (denial of intervention of petitioner residing in excess of 100 miles from site of plant) .
Mr. Gogol predicates his standing on his residence and ownership of property which is located 133 miles from the Carroll County site, and has alleged no other contacts with the site. Thus, under established precedent he has no right to intervene in this proceeding.
V. '
Conclusion For the reasons stated above, the Appeal Board should affirm the Licensing Board's rulings dismissing all of the contentions submitted by Petitioners and denying the intervention of Edward Gogol for lack of standing, and hold as a matter of law that early site review proceedings need not include the full scope of review required under NEPA.
DATED: June 27, 1980 Respectfully submitted, c e -
Michael I. Miller k
C/1 Ak.
/
Alan P. Bielawski Attorneys for Applicants ISHAM, LINCOLN & BEALE Suite 4200 One First National Plaza Chicago, Illinois 60603 (312)558-7500 1
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, , , ATTACHMENT A 4
III. Contentions
- 1. The following contentions deal with the applicants' projected demand for electricity:
a) In deriving peak load forecasts for the period 1979-2000, Applicants did not adequately account for decreased need for applicant-supplied electricity due to increased customer utiliza-tion of local solar, heating devices, local solar hot water collec-tors, local photovn'taic cell-produced electricity and conservation measures; b) In deriving peak load forecasts, Applicants did not adequately account for increased utilization of devices and meas-ures described in contention 1. (a) through tax credits and other governmental incentives, decreased costs and increased efficiency of same; c) In deriving peak load forecasts, Applicants did not adequately account for impact of cogeneration wind, natural gas, and other alternative sources of energy; d) In deriving peak load forecasts, Applicant Common-wealth Edison estimated the output for the period 1988 through 2000 based upon simple extrapolation and not upon rigorous analy-ses. As the facilities are scheduled to be completed around 1988, it is essential that the most rigorous analysis be employed to en-sure that-the demand for electricity is not over or under estimated.
Further, in its econometric modeling, and by its simple extrapola-tion using data accumulated since 1960, Commonwealth Edison has failed to adequately account for the substantially decreased rate of increase in demand.of its customers. Since 1973, due to ever increasing costs and public awareness of the scarcity of certain fule sources, including uranium and oil, there has been a notable drop in said rate and universal attempts at coaservation. Our President has proclaimed "the moral equivalent of war" regarding this country's energy problems and has urged the implementation of conversation measures to combat these problems. The customers of Commonwealth Edison'have responded to all these factors. From 1974 to 1978,'the average annual increase in demand has been only i
e t
2.4%. Yet Commonwealth Edison predicts the demand of its customers to blindly increaee at least 5.1% each and every year from 1979- ,
2000, and the outp.t over that period to increase by 300%. In making such predictions, Commonwealth Edison very clearly does not adequately account for the substantially slowed-down growth rate it has experienced since the key year of 1973; e) In deriving peak load forecasts, Applicants do not identify the customers who are to utilize power to be furnished by the proposed facilities. Rather Applicants perform their statisti-cal anaysis on figures relating to their respective statewide sales, including municipal arcas such as those including and sur-rounding Chicago. As such, Applicants fail to adequately account for possible differences between the rate of increase or decrease of consumption in the primarily rural area to be serviced by the proposed facilities, and those rates in the overall statewide areas utilized in applicants' load calculations.
- 2. Applicants fail to adequately consider alternative sources of energy, especially that of coal-fired power plants. By 1987, the year the proposed facilities will be ready to go on line, the cost per kilowatt hours of nuclear-powered electricity will be approximately 60% more expensive than that of coal-powered electri-city: Further, Applicants have failed to adequately consider the consequences of bypassing this alternative, as the world supply of uranium may be wholly depleted prior to the cessation of the expec-ted lifetime of the facilities, and Applicants' customers may face serious brownouts or service interruptions as a direct result there-of.
- 3. Applicants have not demonstrated that they have the capital required or are otherwise financially qualified to build the facilities.
- 4. The oldest commercial nuclear power reactor is Dresden I, which is approaching an age of 20 years. The proposed decon-tamination of Dresden I piping, necessary for continued operation of the Dresden plant, is as yet undemonstration; there is no assur-ance that it will work. Hence there is no assurance that the oper-ating life of the Carroll County plants will be 40 years (as assumed by Applicants), or that it will even approach that figure. There-fore, any overall summary cost-benefit analysis for the station which assumes a 40-year operating life is invalid.
- 5. The recent history of applicant Commonwealth Edison rate hike requests, and the motivations for them, indicates that construction of the Carroll County nuclear plants will require large rate increases. Thus the construction of the Carroll County plant will impose severe financial hardships on large sectors of our soci-ety--especially those poor people whose finances are strained to ;
the breaking point as a result of the continuing inflation.
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- 6. Construction of the Carroll County plant will tie up '
pose sinceThis thecapital need for the power from Carroll Coun could be more profitably invested in demonstrated.
other sectors of the economy in which there is-a demonstrated need for new growth.
Since nuclear power is one of the most capital-intensive and the least labor-intensive of the sectors of our econo-my, jobs.
building the Carroll County plant will result in a net los tion and operation of alternative sources of electricity fluidized-bed boilers,such and asco-photovoltaic cells, wind turbines, the number of jobs generation and other conservation technologies, created would b the Carroll County plant.
- 7. Applicants have not indicated how much spent fuel will be stored on site, nor for how long it will be stored there.
- 8. Applicants have not indicated the specific place Currently the there spent fuel from Carroll County will be taken to.S. which accepts shipments of spent is only one place in the U. 50 miles southwest of fuel--General downtown Chicago.
Electric's Morris Operation,-There is no assurance of the continu of the Morris Operation, not of'any room in the Morris Operation in the event of its continued operation, nor of the creation of any other repositories for spent fuel.
_Furthermore, there is no demonstrated technology for treatment and ultimate safe disposal of these spent fuel w Therefore, it is entirely possible that the Carroll l County plant will become a permanent high-level radioactive waste dump. There is no provision in the regulations for the NRC to grant applicants a license for creating a permanent high-level l radioactive waste dump.
- 9. Applicants have not indicated where Although the radioactive there wastes produced by Carroll County will be taken.
are several sites currently operating for the burial of these wastes, there is no assurance that these will continue to operate.
(These sites could be found to fail to meet current NRC safety standards, or the standards could be changed to require otherTher methods of disposal.) Therefore, the Carroll County plant could sites will become a be licensed. low- and intermediate-level radioactive waste permanent dump, and this possibility is not allowed for in NRC regulations.
- 10. Applicants have notTheindicated howdecommissioning sucessful decommissioningof the' plant will be carried out.
such a large nuclear plant has never before been attempted or com-pleted. Thus there is no assurance that Applicants will be able to successfully decommission the plant.
- 11. Since the ultimate methods of disposal of the spent fuel and other radioactive wastes produced by the Carroll County plant is not known, there is no way that the costs of such disposal .
can be known. Since the ultimate method of decommissioning of the plant is not known, there is no wa-f that the costs of such decom-missioning can be known. Since these costs are unknown, there is no assurance that they will not be much larger than Applicants projected. Ilence, much larger rate increases will be needed to pay for tha ultimate cost of the Carroll County plant, and any summary ost-benefit analysis produced before the exact magnitude of these costs are known must be invalid.
- 12. The recent disclosures concerning health and safety conditions at Commonwealth Edison's uranium mine and mill in Colorado indicate that Com Ed may be unable to obtain fuel for the Carroll County plant without causing unacceptable releases of tailings-originated radioactivity to the environment and without causing unacceptable radiation exposures to the workers in the uranium mine and mill. Applicant Commonwealth Edison has presented no evidence that it will safely be able to obtain fuel for the '
Carroll County plant.
- 13. The accident record of U. S. commercial nuclear power reactors indicates a strong possibility of meltdown of the Carroll County reactor cores, if they are built. Reactors which have either suffered severe accidents and/or came close to melt-downs include the Fermi I reactor (partial core meltdown, 1966),
the Browns Ferry reactors (fire leading to disabling of the cooling systems, 1975), the Duane Arnold reactor (cracks discovered in main coolant inlet pipes, 1977), and the Three Mile Islane II reactor (loss of coolant accident, 1979). A catastrophic accident could result in the atmospheric release of substantial fractions of the reactors fission product inventory, leading to radiation levels high enough to cause acute radiation sickness among thous-ands of people, and epidemics of cancers, birth defects, and gen-etic diseases in the following years. The consequences of such an accident are unacceptable, and regulations do not allow the licensing of plants which can result in such catastrophic outcomes.
- 14. The Price-Anderson Act is inadequate to provide full insurance coverage for such accidents, and Applicants are unable and unwilling to obtain insurance to cover the full costs and con-sequences of catastrophic accidents involving Carroll County.
Government estimates indicate that a catastrophic accident could cause lars.
damages to property in the range of tens of billions of dol-
- 15. Illinois has no federally approved plan for evacuat-ing populations in the event of catastrophic accident. No such I plans exist for the Carroll County area, and it is likely that no suitable evacuation plan will be found.
UNITED STATES OF AMERICA
- NUCLEAR REGULATORY N COMMISSIO BEFORE THE ATOMIC SAFETY AN ,
D LICENSING APPEAL BOA In the Matter of
)
COMMONWEALTH et al., EDISON CO )
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Docket Nos. 550-559 (CARROLL COUNTY SITE) )
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and 550-600 L.
CERTIFICATE OF SERVICE Commonwealth Edison CompI, Alan P. Bielawski, one Denial Of Intervention" any, et al., h"ofcertify the attorneys for Applicants' that copi es Brief of In R States mail, postage ave paid, been served prematter in the on all parties rom above aptioned on the attached this 27th dayservice list by United of June 1980.
j ',
( v- - m Alan P. ~
DATED:
ielawski June 27, 1980 ,
m
o O Alan S.'Rosenthal, Chairman Dr. John H. Buck '
' Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
-Thomas S. Moore John F. Wolf, Esq., Chairman Atomic Safety and Licensing 3409 Shepherd Street Appeal Board Chevy Chase, Maryland 20015 Washington, D.C. 20555 Mr. James C. Schwab Mr. Glenn O. Bright State Coordinator Atomic Safety'and Licensing Board Iowa Public Interest Research U.S. Nuclear Regulatory Commission Group, Inc.
Washington, D.C. 20555 36 Memorial Union Iowa State University .
Ames, Iowa 50010 l
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Dr. Robert L. Holton Nancy J. Bennett School of Oceanography Assistant Attorney General Oregon State University Environmental Control Division Corvallis, Oregon 97331 188 West Randolph, Suite 2315 Chicago, Illinois 60601
~ Thomas J. Miller 14r. Jim Dubert Attorney General of Iowa c/o Iowa Socialist Party State Capitol Complex 2801-1/2 West Street Des Moines, Iowa 50319 Ames, Iowa 50010 s
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g Mr. John W. Cox, Jr. Atomic Safety and Licensing Jo Daviess County Ad Hoc Committee Board Panel -
on Nuclear Energy Information U.S. Nuclear Regulatory Commission 906 Campbell Street Washington, D.C. 20555 Galena, Illinois 61036 Atomic Safety and Licensing Appeal
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Paul A. Fuerst Board Panel Dubuque Fellowship of Reconciliatior U.S. Nuclear Regulatory Commission 809 Dodge Street Washington, D.C. 20555 Dubuque, Iowa 52001 Docketing and Service Section Richard Worm, President Office of the Secretary Environmental Coordinating U.S. Nuclear Regulatory Commission Organization, Inc.
Washington, D.C. 20555 3555 Hillcrest Dubuque, Iowa 52001 Ms. Nettie Post Thomas J. Sorg, Director "
.The Catholle Worker Carroll County Environmental 382 East 21st Street Coalition Dubuque, Iowa 52001 305 West Cole Mount Carroll, Illinois 61053 Mr.. Richard Goddard Edward Gogol Mr. Steven Goldberg 6105 West Winthrop Office of the Executive Legal Chicago, Illinois 60660 Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 e
o 4 Mr. J. Larry Priske 503 Division James L. Runyon >
Galena,-Illinois 61036 1316 - Second Avenue P.O. Box 307 Rock Island, Illinois 61201 MP. Jan L. Kodner 230 West Monroe Stree Chicago, Illinois 60606
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