ML20062G508

Applicants Statement of Position W/Respect to Unstipulated Contentions.Requests Bd to Reject as Inadmissible,Those Contentions Listed in Attachments B & C in the Stipulation. Cert of Svc Encl

ML20062G508
Person / Time
Site:	05000502
Issue date:	12/05/1978
From:	Churchill B SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
Shared Package
ML20062G502	List: ML20062G500 ML20062G508
References
NUDOCS 7812290105
Download: ML20062G508 (28)

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December 5, 1978 [

UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION Before the Atomic Safetv and Licensina Board  !

i In the Matter of ) t

) i WISCONSIN ELECTRIC POWER ) Docket No. STN 50-502  !

COMPANY, ET AL. ) i

)  ;

Haven Nuclear Plant )

i APPLICANTS' STATEMENT OF POSITION WITH RESPECT TO UNSTIPULATED CONTENTIONS 1

1. On April 5, 1978, Safe Haven, Ltd. (" Safe Haven")

filed with the Commission a petition for leave to intervene '

in the above captioned proceeding. Pursuant to Section 2.714 (c) of the Commission's Rules of Practice, Applicants herein submitted, on May 8, 1978, an answer to the Safe Haven inter-i vention petition. In their answer, Applicants argued that Safe Haven's intervention petition should be denied since that group had neither demonstrated the existence of a personal interest that may be affected by the Haven facility nor had Safe Haven presented at least one contention that complied with tne Commission's applicable standards.

2. Following a prehearing conference held on June 9, 1978, the Licensing Board issued an order reciting certain '

rulings made at the prehearing conference (Order dated '

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June 20, 1978). The Licensing Board therein directed that:

t (a) Safe Haven submit its new or revised statement t

i of " interest" in this proceeding within seven days; (b) Safe Haven submit its new or revised conten-t tions no later than August 9, 1978; and i

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(c)

The parties thereafter meet for the purpose l t

of reaching agreement as to those contentions believed to be properly litigable in this pro-L ceeding, and that the Licensing Board be i informed of any such agreement on or before  !

t September 16, 1978. j

3. On June 14, 1978, Safe Haven filed an addition to its earlier statement of interest, which Applicants did not there- r after contest (see Applicants' Response, dated July 11, 1978).

3 However, the Applicants still believed the Safe Haven inter-  ;

vention petition to be defective in that Safe Haven failed to l set forth at least one contention which satisfied the applicable j regulatory requirements.  :

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4. On August 7, 1978, Safe Haven filed a statenent of f

new and revised contentions. Of the 42 separately numbered contentions in its original intervention petition, safe Haven in this most recent pleading sought to revise only one of those contentions (Contention No. 2) , and even then only cer-l tain subparts of the contention were revised. As to the 41 l

3-other separately numbered contentions, Safe Haven made no attempt to revise or alter those contentions so as to conform 1/

them to the Commission's requirements!

5. On September 12, 1978, representatives of the Appli-cants, the NRC Staff, and Safe Haven met for the purpose of reaching agreement (if possible) on those contentions which i

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could be deemed litigable in this proceeding! The result of that meeting is recorded in a " Stipulation of Contentions" I

-1/ Safe Haven proceeded in this filing to add 19 further contentions not previously raised in its earlier filing (Contentions 2.0 and 43-60). The apparent justification for adding new contentions was Safe Haven's view that the Licensing Board! s reference to "new and revised" conten-tions authorized the submission on an untimely basis of contentions.inEtotally new areas that were not previously asserted by Safe Haven. It is clear, however, from the transcript of'the June 9, 1978 prehearing conference that the Licensing Board's reference to "new and revised" con-tentions was not intended to authorize the filing of con-tentions related to new subject matters as Safe Haven did in its August 7, 1978 filing. Thus, when Chairman Luton's comment that "whether it's called a new contention or an embellishment, or a restatement of an old one, just will not matter to the Board" (Tr. at 50) is read in the con-text of the chairman's view that "any party has a right to revise contentions or submit new contentions for cood cause shown" (id. ) , it beccmes apparent that the Licensing Board may have authorized new or revised contentions re-lating to previously designated subject matters, but did not authorize new contentions unrelated to previously desig-nated subject matters, absent a showing of good cause.

2/ Prior to the September 16 deadline specified in the Licensing Board's June 20 order, counsel for the NRC Staff informed the Licensing Board that negotiations were in progress and that a stipulation was unlikely to be executed until some time after September 16.

filed with the Licensing Board on November 21, 1978. Appli-cants and the NRC Staff therein agreed that certain conten-tions, set out in Attachment A to the Stipulation, could be admitted for consideration as matters in controversy among the 3/

parties in this proceeding 7 As a result of that agreement, Applicants noted in the Stipulation their withdrawal of their objection to admitting Safe Haven as a party to this proceeding.

Attachment B to the Stipulation identifies two contentions which the NRC Staff has agreed may be admitted, but Applicants have not. Attachment C contains those Safe Haven contentions which both Applicants and the NRC Staff agree are inadmissible contentions.

As the Stipulation notes, the agreement as to the Safe Haven contentions in Attachment A was entered into "in a spirit of compromise and cooperation with the goal of minimizing 1

procedural disputes," and the agreement does not in any way con-stitute a waiver of any party's rights to invoke valid Commission requirements with respect to the unstipulated contentions in Attachments a and C (Stipulation at 17) . Thus, to the extent l 1

1 that any of the contentions listed in Attachment A of the l

Stipulation may not necessarily be in total and full compliance )

3/ However, as noted by Chairman Luton at the prehearing con-ference, any. agreement by the parties on the acceptablity contentions is not binding upon the Board, which is charged with reaching its own judgments abcut the acceptability of contentions (Tr. at 51) .

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l' with the Commission's requirements, Applicants are willing  ;

I- to waive objections that they might have with respect to i

l-such contentions so as to minimize the scope of dispute  !

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with Safe Haven. However, as to the contentions listed in  :

l Attachments B and C of the Stipulation, they are so far re-moved frcm compliance with the Commission's requirements that i

Applicants are unable to waive their objections to the admis-  !

i j sion of those contentions. t

6. The purpose of this filing is to present to the Licensing Board Applicants' statement of their positions with i

respect to the unstipulated contentions in Attachments B and  !

C to the Stipulation. The discussion of the Attachments B and C contentions that follows is divided into three parts.  !

Initially, we review briefly the legal standards which must ,

e under the Commission's regulations be satisfied before a con- [

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tention.can be admitted. Next we discuss the admissibility l i

of the two contentions listed on Attachment B of the Stipulation.

i Finally, we discuss the admissibility of the 23. contentions  ;

listed on Attachment C of the Stipulation.

t LEGAL PRINCIPLES

7. In " Applicants' Answer to the Petition of Safe Haven, Ltd. for Leave to Intervene" (dated May 8, 1978), we  ;

set forth in detail the requirements of Section 2.714(c) of the Commission's Rules of Practice that must be satisfied I before a contention will be' admitted for litigation in a '

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construction permit proceeding. We direct the Licensing Board ,

to that discussion for a full description of our position (see 1 May 8, 1978 filing at pp. 6-12).

8. In summary fashion, those requirements are:

(a) The contention raised by a petitioning intervenor must be within the scope of the issues to be resolved in this construction permit proceeding; (b) The contention must not constitute an attack on Commission regulations or on matters that are (or are about to become) the subject of general rulemaking by the Commission; and (c) The contention must be supported by some basis set forth with particularity and with the appropriate factual backing.

As consistently applied by the Commission and approved by ,

the courts, the baris-for-contention requirement means that the contention "must be significant enough to step over a threshold requirement of materiality * * *. The comment l

cannot merely state that a particular mistake was made, it must show why the mistake was of possible significance in the results." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, , 98 S.Ct. 1197, 1216 (1978). Application of this " threshold test" to environmental issues rules out contentions which raise "only remote and speculative pcssibilities" or are otherwise

inconsistent with the view that the environmental review mandated by the National Environmental Policy Act ("NEPA")

is subject to a " rule of reason". See Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972).

9. With these principles in mind, we turn to a review of Safe Haven's unstipulated contentions.

ATTACHMENT 3 CONTENTIONS

10. The two contentions listed on Attachment B of the Stipulation represent contentions which Safe Haven and the NRC Staff believe can be admitted, but which Applicants believe to be inadmissible.

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11. Contentions 1(a) and 1(b) . These contentions are nothing more than Safe Haven's totally unsupported and unexplained allegation that Applicants have "f ail [ed] to detail" or to have " adequately discussed" two methods which allegedly would reduce the " perceived electrical demand."

However, the Applicants have provided in Section 1.1 and in Appendix B-1 of the eight-volume Invironmental Report ("ER"),

which is part of the application, m lengthy and detailed discussion of the impacts from rate reform and mandatory load i management on reducing demand -- the two points raised by Safe Haven in this contention. Included therein are analyses of whether implementation of these methods could be relied '

!. upon as a rearonable alternative to constructing the Haven i

! Nuclear Plant. Rather than acknowledge this information,

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Safe Haven only asserts the bald conclusion that the discussion [

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of the subject is inadequate, but makes no effort to explain ,

a why or how it is inadequate. Thus, Safe Haven provides no j basis whatsoever for these allegations, let alone a basis I which can be measured and f7und sufficient by the standards i

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described above _r In addition, Safe Haven fails to meet the four tests re-

, quired by the Commission in its Consumers Power Company (Midland Plant Units 1 & 2 )' , CLI-74-5, 7 A.E.C. 19, 24 (1974),

opinion, which decision was affirmed by the Supreme Court in f Vermont Yankee. 5 In this regard, Safe Haven has failed to provide any showing that its two alternatives: (a) would l .

" curtail demand for electricity to a level at which the f proposed facility would not be needed"; (b) are " reasonably t 1 4 4

-4/ That there is no basis in fact for' Safe Haven's contention is obvious from a comparison between Safe Haven's unsupported claims of lack of detail and inadequate discussion and the actual information provided in the ER. For example, included i in the ER is a Wisconsin Electric Power Company 20-year demand [

forecast and 20-year energy forecast (see ER at Appendix B-1).  :

Exhibit 1 to the demand forecast explicitly qcantifies the. I Company's estimated i= pacts from rate structure reform and  !

increased load management techniques. For each of these alternatives, descriptive text analyzes the assumptions used  ;

by the Company and the basis for each assumption. Furthermore,.

l additional information is provided in exhibit 15 on estimated *

, controllable demand of electric water heaters (relating to )

load management) , and in exhibit 18 on the effect of~ time-of-

• use rates on large cc=mercial and. industrial demands (relating i to rate. structure reform). Similar analyses are provided-in  ;

Appendix 3-1 for Wisconsin Power & Light and Wisconsin Public Service Corporation. l l

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available"; (c) are susceptible to a reasonable degree of proof; and (d) are not "largely speculative and remote possibilities." ,

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In Contention 1(a) , Safe Haven merely states that Applicants l " fail to detail" the effect of an inversion of the current rate t

structure on predicted demand. Safe Haven, however, fails to j note that rate reform is discussed extensively in the ER. More significantly, Safe Haven also fails to provide any basis --

or indeed an iota of an explanation -- for assuming that a rate i .

structure which is not cost-related could reasonably be con-1 i sidered to be a possibility in Wisconsin. Thus, Contention 1(a)

I fails to satisfy the rule of reason so widely recognized in j Appeal Board and judicial decisions.

i And, in Contention 1(b) , the claim that the discussion of f

i load management programs is "not adequate", like the claim i with respect to rate structure reform, disregards enti aly the j detailed discussion on this matter in the ER. At a minimum, 4

Safe Haven should have specified in detail each of the alleged inadequacies of the load management discussion. Safe Haven 1

specified nothing, and, therefore, the contention must fail-

't for lack of basis. In addition, the suggestion that Applicants 1

offer " financial incentives beyond the actual savings" is an unreasonable alternative since such a rate structure would not be cost-justified. There is no showing that this alter-native is more than a remote and speculative possibility, and, 4

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thus, it fails both the " rule of reason" and the Vermont Yankee " threshold test.

By failing to specify how Applicants' ER discussions of the subjects are " inadequate and incomplete," Safe Haven has presented a classic example of precisely the type of vague, unsupported contention the Commission's rules are designed to exclude.

i 12. Contention 2. In this contention Safe Haven asserts

that the Staff and the Applicants have failed to adequately assess the long-term health effects of the uranium fuel cycle.

i Wt ile claims related to such health effects may be encompassed j -tihin the general scope of a proceeding of this type under the Commission's revised policy with respect to Table S-3, 10 C.F.R. Part 51 (see footnote 1 to the Table) , the claim i must conform to the Commission's requirements for the admic-j sion of contentions. The Safe Haven contention is simply not sufficient to invoke the adjudicatory machinery of the l

l Commission.

There is absolutely no specification of the particular effluents Safe Haven believes to be harmful (which is j

5/ In Attachment C, containing a list of those contentions which both the NRC Staff and Applicants believe to be defective, Contention 16 contains allegations that are essentially srmilar to those set forth in Contention 1 of Attachment 3. For the reasons set forth above in the text, the Applicants also believe Contenticn.16 of Attachment C to be defective.

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especially significant since there are almost 50 entries in Table S-3), or the nature of the alleged adverse health effects, or any underlying factual analysis to support the allegation. If the blanket claim that adverse health effects I are likely is sufficient to warrant admission of this conten-tion, then the Commission's " basis-for-contention" requirement is a nullity and should be expressly recognized as such.

Indeed, the salutary purposes associated with the " basis-for-contention" requirement and specifically recognized by the Appeal Board in Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 A.E.C. 13, 20 (1974) and Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit 1), ALAF~279, 1 N.R.C. 559, 576 (1975), would be totally frustrated if this contention were to be admitted.

ATTACEMENT C CONTENTIONS  !

13. The 23 contentions listed on Attachment C of the Stipulation represent contentions which neither the NRC Staff nor the Applicants believe to be admissible in this proceeding.

14. Contentions 1(a) throuch 1(h). These are a series of contentions which claim that Applicants have " failed to adequately discuss and analyze" certain specified energy sources as alternatives to nuclear power. Such a claim goes not to the merits of Applicants' choice of nuclear power, but, rather, whether the basis of that choice is adequately dis-cussed in the ER. Applicants have included in Section 9 of

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the ER a full discussion of all reasonable alternatives to the ,

Haven Plant. In the light of this detailed analysis, Safe Haven has provided no adequate basis for challenging the sufficiency of Applicants' discussion.

But for a brief further discussion of gas from human and agricultural wastes and a new contention relating to small scale hydropower, Safe Haven chose not to supplement its i original contentions relating to alternative energy sources, l and we direct the Licensing Board to our earlier analysis of contentions previously numbered 2(D), (F), (G), (H), (I), (K) and (L) for a more complete discussion of the shortcomings of these contentions (see filing of May 8, 1978, at pp. 18-22).

As to the brief additional paragraph on human and agricultural  ;

wastes and the new material on small scale hydropower, the Applicants believe such discussions to be woefully inadequate to set forth the necessary basis.

Moreover, when the energy alternatives listed in Conten- -

tion 1 of Attachment C are ccmpared with the stipulated ,

Contention 1 in Attachment A, we believe a significant dif-i ference between the two lists is readily apparent. While the Applicants do not believe the alternatives listed in i

Contention 1 of Attachment A are suitable alternatives to ~

nuclear power, they are not so speculative and remote as to make a meaningiel analysis impossible. By comparison, the t

alterna:ir s listed in Contention 1 of Attachment C are sc

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l remote and speculative as to be way beyond the scope of any

! reasonable option that must be evaluated by the Applicants.

15. Contentions 2(a) and 2 (b) . Safe Haven next claims l that Applicants have failed to adequately detail their "assump- l tions and predictions" relative to the need for more generating capacity in that Applicants fail to adequately consider substitutes to natural gas and the growing " southward trend" t

of the population. Even a brief review of the Haven ER demon-i i

strates this claim to be without any basis in fact. Included within the ER are summary sections describing the nature of i

Applicants' historical load (ER at 1.1-3 through 1.1-5) and i the basis on which future demand projections were estimated (ER at.l.1-5 through 1.1-6). These summaries are supported by the more detailed analyses contained in Appendix B-1 of the ER. In the light of these detailed discussions, Haven's allegation of inadequacies is insufficient to provide an adequate basis for the contention.

1 In Contention 2 (a) , Safe Haven claims that Applicants'  ;

conclusions with respect to the availability of natural gas

! supplies fail to consider the substitution of various -

snythetic or alternative gas sources. Such a claim is patently false and is in direct conflict with the clear language of the ,

t Haven ER (see S 9. 2) . The Federal Power Cc= mission study relied upon by Applicants for the conclusion that gas supplies, -

l both conventional-and supplemental, will be inadequate to  !

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meet current projections of future demand, included considera- i t

tion of possible synthetic gas production from coal and l j liquified hydrocarbons. Indeed, despite numerous uncertain- l

! ties, a successful program of synthetic gas development and i

implementation was assumed; such a program was postulated to - t I

[ include the possibilities of solvent refined coal production,  ;

t methanol production, and other synthetic fuels.  !

In Contention 2(b), Safe Haven challenges the considera- [

tion given to the " growing ' southward trend' of the population."

i, l However, the Haven ER explicitly notes that the projected de- (

i crease in rate of load growth reflects, in part, "an expected reduction in population growth in certain areas" (ER at i 1.1-5) -- the details of which are analyzed in Appendix B-1.

4 i Thus, this specific area of concern was analyzed by Applicants, '

i and Safe Haven's passing reference to such a concern provides  !

I no basis for admitting their contention that not enough con-sideration was given this factor. '

16. Contentions 3 throuch 5 and 17. These cententions all' relate to alleged safety hazards arising from the l'ow i level radiation associated with operation of the Haven Nuclear Plant. As such, these contentions constitute direct attacks '

on the formal regulations of the Commission and, therefore, .

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should be dismissed.

The . commission's standards for protection against radia-T tion applicable to the Haven Plant are found in 10-C.F.R. Part 20  ;

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and 10 C.F.R. Part 50, including Appendix I thereof. Those regulations specify maximum exposure levels for individuals i to radiation in restricted areas, i.e., areas where access is controlled by the applicant (see 20 C.F.R. SS 20.101, 20.103 '

and 20.104), as well as in unrestricted areas (see 20 C.F.R.

SS 20.105 and 20.106). In addition, the regulations require that applicants keep levels of radioactive materials in effluents to unrestricted areas "as low as is reasonably achievable" (10 C.F.R. SS 20. 01(c) , 50.34a(a) and 50.36a).  ;

This requirement is further quantified in Appendix I to 10 C.F.R. l i

Part 50.

Both the Preliminary Safety Analysis Report ("PSAR") and the ER demonstrate that the Haven Plant has been designed to meet these requirements and that during Plant operation radio-active releases will, in fact, be well below the values specified in the Commission's regulations. See PSAR SS 11.2, 11.3 and 11.5; PSAR Site Addandum SS 11.2 and 11.3; ER SS 3.5 and 5.3.

i Significantly, Safe Haven's contentions 3 through 5 and <

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17 nowhere challenge these conclusions. Rather, Safe Haven asserts, without any substantial basis, that radioactive dis- I I

charges at .tne low levels mandated by the Commission's regu- i I

lations may not be low enough to be nondangerous to the

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j population as a whole (Contention 17) , to those with respiratory i

conditions and allergies (Centention 3) , or to the elderly and

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a to children (Contention 4). Nor is Safe Haven on any stronger footing when it asserts, again without any basis whatsoever, that such low level discharges may be dangerous to dairy s/

cattle and livestock (Contention 5). Thus, these contentions constitute challenges to Commission regulations and must be excluded.

17. Contention 6. In this contention Safe Haven notes that Applicants have failed to discuss the " breeder program."

That is of course, correct -- nothing contained in either the Atomic Energy Act or NEPA requires such a discussion in the course of a licensing proceeding for a light water reactor.

The issue of the breeder reactor is, quite simply, beyond the scope of the present proceeding.

Moreover, to the extent Safe Haven questions the cost and economics of the " breeder program" such an assessment involves issues not central to the Commission's environmental responsi-bilities. As the Appeal Board had reason to note recently in Consumers Power Company (Midland Plant, Units 1 and 2),

ALAB-458, 7 N.R.C. 155, 161-63 (1978), financial costs are of little relevance under NEPA. In fact, in ALAB-458 the

-6/ The general consensus that the radiation limits established by the Commission's regulations for htmans are also con-servative for other species is supported by a National Academy of Sciences-National Research Council Report which concluded that no other living organisms are very much mere radio-sensitive than man. See NAS-NRC, The Effects on Populations of Exposure to Lcw Levels of Ionizing Radiation (1972).

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Appeal Board ruled that unless the proposed nuclear plant has environmental disadvantages in comparison to possible alterna-tives, the acceptability of the cost of the plant is a question for utility and state regulatory agencies, and not for the Commission. Thus, regardless of the cost of the " breeder program" or the impact of such costs on the economics of the Haven Plant, such considerations are beyond the scope of those permissible in this proceeding.

18. Contentions 7 and 8. Each of these contentions faults Applicants for failing to assess highly speculative impacts that Safe Haven alleges might occur. In each case the undesirable effect is said to result from the perceptions that tourists and fisherman (Contention 7) or consumers of milk (Contention 8) might have with respect to the Haven Plant.

Such claims are not susceptible to proof; rather they involve highly theoretical environmental effects with little basis for concluding that such effects are likely to occur. Under any application of the " rule of reason," NEPA does not require consideration of such unlikely forecasts of the future.

Nor, as the Supreme Court commented in Vermont Yankee, need the Commission consider such contentions in the absence of a showing sufficient to satisfy the " threshold test." In this regard, Safe Haven identifies no facts which it alleges might support the theoretical speculations contained in these l

contentions. Since taree nuclear reacters are already in

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1 operation in Wisconsin, there exists a more than adequate record upon which Safe Haven could have relied to support its contention, if, indeed, that operating record provided any minimal support for the Safe Haven position. In accord with  ;

s i F Vermont Yankee, the failure to identify such a factual basis for these contentions requires their rejection.

19. Contention 9. Safe Haven's challenge to the design '

of the Haven emergency core cooling system ("ECCS") repre-sents a direct attack on the Commission's regulations in 10 C.F.R. S 50.46 and Appendix K. The contention, therefore, must be rejected.

20. Contentions 10(a) through 10 (f) and 14. Safe Haven next challenges the -idq;acy of the detail provided on decom-missioning the Haven Plant. In fact, however, the discussion on decommissioning and dismantling included in Section 5.9 of the ER provides sufficient detail of such activities at the construction permit stage. No specific plan for decommissioning need be presented, since the Commission's regulations contem-plate detailed consideration of decommissioning near tne end of a reactor's useful life and at the time an application for

, termination of the operating license is filed. See 10 C.F.R.

S 50.82. The Haven ER does, however, set forth various 1

altern0tives, lists the projected costs associated with each, and briefly assesses the advantages and disadvantages of the.

alternatives. This is more than sufficient to meet the i

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l requirements of NEPA. To the extent Safe Haven is alleging that Applicants must do more, it constitutes an impermissible challenge to Commission regulations. And, to the extent Safe Haven is alleging that the cost factors related to decommissioning must be considered now, that too must fall i

for being beyond the scope of this hearing. (See discussion of ALAB-458, supra at 517.)

21. Contentions 11 and 12(a) throuch 12(c). There is no requirement under NEPA or elsewhere, and Safe Haven cites none, to provide the detailed analysis of the types of costs listed in these contentions. Moreover, Safe Haven has made no showing that such costs have any relevance to the Haven project. Certainly the Appeal Board's decision in ALAB-458 (see 517, supra) ends all dispute over whether such cost detail is required by NEPA.

To the extent that costs bear on the financial qualifica-tions of the Applicants, the estimates included in the Haven ER satisfy the Commission's regulation that information at the

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construction permit stage be sufficient to "show that the j

applicant possesses the funds necessary to cover estimated f

construction costs and related fuel cycle costs or that the applicant has reasonable assurance of obtaining the necessary funds * * *" (10 C.F.R. S 50.33(f)). Safe Haven makes no claim to the contrary.

22. Contention 13. In this contention Safe Haven alleges l

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located so as to be subject to damage due to shoreline erosion. I The only basis given by Safe Haven for this claim is that some structures are located as close as 50 feet to the shoreline ,

bluff and, over the 40-year lifetime of the plant, erosion l i

can be expected to be as high as 60 feet. However, such an l

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erosion rate would be postulated only in the absence of shoreline crotection, and Safe Haven's claim conveniently {

a 4 ignores the fact that the Haven Plant is provided with permanent I

t shoreline protection designed in accordance with procedures i outlined by the Army Corps of Engineers (see Haven PSAR Site l l I Addendum at S 2.5.5.4 and Figures 2.5.5-9 and -10). Thus, the i

only element of basis cited is factually incorrect. Moreover, Safe Haven's claim ignores the fact that safety-related struc-tures, like the containment structures, are to be located about 400 feet from the shoreline (see Haven ER at S 3.1).

Significantly, Safe Haven neither alleges nor provides any

. . basis for a claim that the permanent shoreline protection to be constructed by the Applicants will be insufficient to adequately protect safety-related structures at the Haven Plant.  !

l In the absence of such an allegation with a sufficiently detailed I

supporting casis, Safe Haven's Contentien 13 fails to satisfy ,

the Cc= mission's pleading requirements and must be rejected. e

23. Contentions 15, 18, 19 and 20. These contentions  ;

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, relate in one way or another to the Haven spent fuel storage i

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pool. In Contention 15 Safe Haven alleges that Applicants i

should be required to provide a trust fund or bonding arrangement to facilitate maintenance of the spent fuel storage pool be-i yond the anticipated lifetime of the plant. Initially, we note that consideration of pool maintenance beyond the life of the plant is clearly beyond the scope of this proceeding.

Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2) , ALAB-455, 7 N.R.C. 41, 46, 51 (1978). This alone eliminates Contention 15. Beyond that, we note that the contention is premised on a set of assumptions -- i.e., that within 40 years there will be no method of spent fuel disposal i

or fuel reprocessing -- that are totally unsupported by Safe Haven, and, in fact, represent "only remote and specula-tive possibilities." Finally, the establishment of a trust fund or bonding arrangement is beyond what is required by the Commission's regulations with respect to both health and  !

safety concerns (see, e.g., 10 C.F.R. S 50.34 (a) and Appendix A, General Design Criteria for Nuclear Pcwer Plants, Criteria 61, 62 and 63) and financial qualifications (see, e.g., 10  !

C.F.R. S 50.33(f) and Appendix C). Thus, the contention  !

i also constitutes an impermissible attack en the Ccmmission's I regulations. <

In Contentions 18, Safe Haven questions the impacts from storing spent fuel generated by five reactors within a 50-mile radius. Since the location of multiple rescrors at the same l

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site has long been accepted practice, the fact that five re-actors might be located within 50 miles of each other presents no new or unique situation. Certainly, Safe Haven's reference to the impacts from spent fuel storage provides no basis for concluding otherwise in this case.

For each nuclear reactor the responsible applicant utility must demonstrate to the Commission the safety of its particular storage facility. With respect to Point Beach and Kewaunee, this finding has already been made by the Commission. Thus, the existence of spent fuel pools at those sites in no way affects the Applicants' ability to store spent fuel at the Haven site. In other words, the impact from storing spent fuel at three sites is no greater than the individual impacts arising from each storage location. Section 9.1 of the Haven PSAR details fuel storage and handling at the Haven site. And, significantly, Safe Haven does not challenge any part of those proceduros. Safe Haven provides no basis or explanation for a supposition that the effects of spent fuel storage at Haven will be unacceptable -- or even different -- as a result of the existence of the other plants.

Contention 19 asserts that the Applicants have failed to assess alternatives to the proposed underwater storage of spent fuel at the Haven site. However, Safe Haven neither states the basis for requiring a discussion of such alternatives nor the purpose that would be served by such a

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discussion, as is required by the Supreme Court's opinion in Vermont Yankee, supra. Section 9.1.2 of the Haven PSAR in- '

i

, cludes a full and complete description of the proposed spent I fuel pool. That discussion demonstrates that the spent fuel pool will comply with all applicable design objectives. In such circumstances, the Commission's guidelines do not require l 4

j the evaluation of alternative systems (compare Haven ER at l 4 .

S S 10. 7 and 10. 8 ) . i Finally, in Contention 20 Safe Haven alleges that the Applicants should specify a site for the removal of all spent  !

i fuel in the event of a breach in the integrity of the fuel

, holding pool. Again, we note that this contention is based i

on a " remote and speculative" possibility. In addition, the contention constitutes an impermissable attack on the Commission regulations specifying the nature of those postulated accidents for which the spent fuel pool must be designed against (see Haven PSAR at S 9.1.2.3 and S 15.4.5).

4

24. Contention 16. This contention is discussed supra at footnote 5 and paragraph 11.

25. Contention 21. Safe Haven next alleges that there

is a requirement that the Applicants discuss where low-level  ;

i

, radioactive wastes generated at Haven will be disposed of, and that the Applicants have failed to provide such a discus- '

sion or to discuss the availability of off-site disposal given the alleged, but unspecified, " current problems" with licensed low-level radioactive land burial facilities. In point of b

l

I fact, however, no such requirement is included in the Commission's regulations. All that is required is "(a] general description of the provisions for packaging, storage, and shipment off-site of solid waste containing radioactive materials resulting from treatment of gaseous and liquid effluents and from other sources" (10 C.F.R. G 50.34a(b) (3)) . This the Applicants have done in sections 11.5.5, 11.5.6 and 11.5.7 of the Haven PSAR. The contention should, therefore, be rejected.

26.. Contention 22. In this contention Safe Haven alleges that the Applicants have failed to establish a baseline for radioactivity in milk in and around the Haven site. But, as with the contention just discussed, there is no requirement at the construction permit stage that such a baseline be established years before operation of the plant. Applicants, of course, do plan to conduct extensive preoperational studies which will include radiological surveys (see Haven ER at S 6.1.5).

This preoperational monitoring is scheduled to begin one to '

two years before initial plant operation (id.). A general description of the sampling media, sites, techniques and collection frequency, and analytical procedures to be employed is given in the Haven ER (id. and Table 6.1-12); milk is a major element of this program. Significantly, Safe Haven neither alleges nor provides a basis for any allegation that this program will be insufficient to establish a suitable baseline for radioactivity in milk prior to the commencement of plant operation. In such circumstances the contention should be rejected.

i i .

..~.

27. Contention 23. Safe Haven's final contention is that Applicants should provide an analysis of the Haven site based on a scenario in which only one 900 MW reactor is constructed. Since formulation of this contention, the Applicants have requested the NRC Staff to discontinue its review of a second Haven unit and limit the ongoing review to a single generating unit (see letter from Sol Burstein to Harold R. Denton, dated October 19, 1978, and attached to

. Applicants' October 24, 1978, answer to a =otion filed by Safe Haven in this proceeding). Applicants also have revised their application to reflect the construction and operation of a single unit at the Haven site. In the light of these events, Safe Haven's Contention 23 has been rendered moot and no purpose would be served by now admitting that contention.

For all the foregoing reasons, the Applicants respectfully request the Licensing Board to issue an order rejecting as inadmissible those contentions listed in Attachments a and C to the Stipulation.

Respectfully submitted, SEAW, PITTMAN, POTTS & TROWBRIDGE f

We W.

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Church 2.ll -

Counsel for Applicants 1800 M Street, N. W.

Washington, D.C. 20036 (202) 331-4100 Dated: December 5, 1978 I 1

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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

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WISCONSIN ELECTRIC POWER ) Docket No. STN 50-502 COMPANY, ET AL. )

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Haven Nuclear Plant )

CERTIFICATE OF SERVICE ,

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