ML20137P033

Supplemental Brief Responding to Questions Re Ocean Dumping, Per Appeal Board 860109 Order.Intervenor Claims Right to Hearing to Request Prohibition on Ocean Dumping of Facility Radwaste

ML20137P033
Person / Time
Site:	Harris
Issue date:	01/30/1986
From:	Eddleman W EDDLEMAN, W.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20137P030	List: ML20137P027 ML20137P033
References
OL, NUDOCS 8602040321
Download: ML20137P033 (4)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION < !Ik/ y.,

BEFORE THE ATOMIC SAFETY AND LICENSING ADPEAL BOA. }

tots D b Howard A. Wilber t Dr. Reginald L. Gotchy Thomas S. Moore, Chair h ppjk3Ngy 93 5

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- A In the Matter of )

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,,m Carolina Power & Light Co. and )

North Carolina Eastern Municipal )

Power Agency ) Docket 50-400 0.L.

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Shearon Harris Nuclear Plant, Unit 1 )

Supplemental Brief on Ocean Dumning, by Wells Eddleman Pursuant to the Anpeal Board's Order of 9 January 1986

- and extension of time duly granted, intervenor pro h Wells Eddlenan responds to the Appeal Board's 3 questions in that Order as follows:

1. Did the Licensing Board err, at 16 NRC 2069,P092 in rejecting Eddleman Contention 12, concerning ocean dumping, in light of the Grand Gulf decision, A1AB-130, 6 AEC 423, h25-6? Yes, since the contention is obviously adequately specific, there is no legal i

restriction on ocean dunning in effect, and I argued that the pressure g to restrict use of low-level radioactive waste landfills was increasing

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@@ and thus alternatives like ocean dusping would be nore likely over CD o

-:e the operating lifetine of the Harris units (2 units we=e then nianned, No g

o in 1982, down from h originally. Only one is left now.)

• b ao ALAB-130, dealing with a contention that alternatives for conserving

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energy and using alternative sources of electricity had not been adequately considered, found that contention adequate with minimal particularization. 6 AEC at 426. Clearly, the earticularization required here is net by the assertion that low-level waste disposal 1

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sites for radioactive materials are not as available now, and are likely to be less available in the future, than formerly.

As to the specificity, it is certainly clear enough what ocean dumping means (see 33 USC 1402(f) and 1h01 (a),and (b) ).

Af ter the Licensing Board's decision in September 198P, Congress enacted Public Law 97-42h, which provides (see Note $ to 33 USc 1hlk) for research on ocean dumping of low-level radioactive wastes, and further provides (Note'i, ibid.) the requirement for an en-vironmental inoact analysis of the proposed (low-level rad waste dunping) action at the site where applicant desires to dispose of the material, upon human health and welfare and marine life (33 USC 1414, Note 1, (1)(3)). This would have been available during discovery on Eddlenan contention 12, had it been admitted, and would clear up any nossible confusion about what sort of environnental impact analysis is required.

Thus, Eddlenan contention 12 had adequate basis and specificity l under ALAB-130. The Appeal Board specifically states in responne l to argumente in that case that the intervenor had not buttressed his allegation or indicated that it(was) feasible, But, at the risk of undue repetition, we stress l

again that, in passing unon the question as to i

whether an inte'rvention petition should be granted, it is not the function of a licensing board to reach the merits of any contention contained therein.

6 AEC at 426, emphasis added.

The Licensing Board decision (LBP-119A,16 NWC P069, P092) involved here was precisely passing unon die question of whether an intervention netition should. be granted. The Appeal Board in ALAB-130 goes on to say, "Section 2.71h does not require the petition to detail the evidence which will be offered in support of each contention." Thus, the Licensing Board clearly erred.

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2. Did the Marine Protection, Research and Sanctuaries Act of 1972, as amended, 33 USc 1h01 et seq. , any other statute, or any regulation, prohibit ocean dumping of low level radioactive commercial reqctor waste at the time of the Licensing Board's ,

rejection of Eddleman contention 12, or does any statute or regulation now prohibit such dumping?

No, I have not been able to find any statute, regulation, or other rule prohibiting ocean dumning of nuclear power nlant low level radioactive waste. The Act cited in the ouestion clearly did not, and evidently does not.

First, under the act, no State may bar ocean dumping that the Act permits. 33 USc 1416(d). A permit may be issued to dump low 1evel commercial nuclear power plant radioactive waste into the ocean. 33 USc 1412(a). Only high level radio-active waste and radiological warfare agents, among radioactive wastes, are barred. See 33 USc 1402(j). 33 USc 1414 Note h barred such dumping, except for research purposes, from 1/06/83 for two years, but that expired 1/06/1985 Although Note i to the same section imposes requirements on any dumping, it clearly does not bar it, and this is explicitly concerning '" radioactive i naterial" which includes low-level radioactive waste from nuclear power plants.

33 USc 1402(c) includes low level radioactive waste as a .

" material" under the Act, and 33 USc 1411(a) allows regulated dumping of materials as defined in 33 USc 1402(c). Thus, ocean dumping (OD) of low-level radioactive waste (LLRW) is not barred by the Marine Protection, Research and Sanctuaries Act of 1972 as amended, nor was it at the time of the Licensing Board's order.

-h-3 Assuming the first question (above) is answered in the affirnative and both parts of the second question are answeved in the negative, would our innosition of a condition (prohibiting the ocean dumping of Shearon Harris low-level radioactive waste) on any future Licensing Board authorization for an onerating license alleviate the need to reverse and remand this issue for further proceedings?

No. Under Section 139(a) of the Atonic Energy Act, as anended, 42 USC 2239(a), provides that the (Nuclear Regulatory) "Connission shall grant a hearing uoon the request of any person whose interest nay be affected by the nroceeding, and shall admit any such n e rson as a narty to the proceeding ..." (sne, e.g., UCS v. NRC, 711 F.2d 370, 379 (1983). Emphasis added in quote).

This is a very strong right, and I have qualified for it under the procedures of the NRC, e.g. 10 CFR 2.714 as interpreted, e.g.,

in ALAB-130, supra, with respect to Contention IP on Ocean Dumning.

An operating license condition is not equivalent to this right, since the NRC could undo the condition (i.e. the Conmissioners could) through an ouerating license amendment that, under the NRC's interpretation of its regulations, would not require a hearing.

The Applicants could request such an amendment at any time.

. Others possibly could. A hearing night or night not be granted.

This is not equivalent to the right established under the Atomic Energy Act, supra.

Moreover, the legal enforceability of operating license condi-tions may be questionable, particularly if I have to do the enforcing by taking the NRC or the power company into court.

Res subnitted,

4.4~pec tf ullyQdwa

1. elT3' Eddleman, nro se