ML20198J776
| ML20198J776 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 05/29/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#286-329 ALAB-837, OL, NUDOCS 8606030209 | |
| Download: ML20198J776 (41) | |
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(B UNITED STATES OF AMERICA ~. AbQyg013ggs, NUCLEAR REGULATORY COMMISSION 2, %f=[f!pgra
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ATOMIC SAFETY AND LICENSING APPEAL BOAR ( l ;,, f \M ,
s ' 75f ;je" TDf,y; Administrative Judges:
Thomas S. Moore, Chairman May 29, 1986 Dr. Reginald L. Gotchy (ALAB-837)
-' Howard A. Wilber stavta MAY301906
)
In the Matter of )
)
CAROLINA POWER AND LIGHT COMPANY ) Docket No. 50-400 OL AND NORTH CAROLINA EASTERN )
MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear )
Power Plant) )
)
APPEARANCES Wells Eddleman (pro se) , Durham, North Carolina (with whom John Runkle, Chapel Hill, North Carolina, was on the brief) for the intervenors Wells Eddleman and Conservation Council of North Carolina.
Thomas A. Baxter, Washington, D.C. (with whom John H.
O'Neill, Jr., and Deborah B. Bauser, Washington, D.C., and Richard E. Jones, Raleigh, North Carolina, were on the brief) for the applicants Carolina Power
-and Light Company, et al.
Janice E. Moore (wit.') whom Charles A. Barth was on the brie f) for the Nuclear Regulatory Commission staff.
DECISION In this consolidated appeal, intervenors Conservation Council of North Carolina (CCNC) and Wells Eddleman challenge the Licensing Board's partial initial decision on environmental issues in the Shearon Harris operating license 8606030209 860529 PDR ADOCK 00000400 PDR 0
7)S o 2_.
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proceeding.1 Primarily, the intervenors claim that the Licensing Board's factual findings on several issues tried in the environmental phase of the proceeding are erroneous and that the Board erred in rejecting a number of the intervenors' proffered contentions. Additionally, they claim the Board improperly denied intervenor Eddleman's petition pursuant to 10 C.F.R. S 2.758 to waive the Commission's rule prohibiting the litigation of need for power and alternative energy source issues in operating license proceedings. For the reasons that follow, we affirm the results reached by the Licensing Board on each of the challenged issues.
I.
A. The intervenors first attack the Licensing Board's findings on joint contention II(e) , which claims that the final environmental statement for Shearon Harris underestimates the radiological dose to the population from anticipated routine emissions of the plant. Specifically, the contention asserts that the dose analyses of the NRC staff and the applicants are deficient because they fail to consider the deposition in the lung of radionuclides that have attached to respirable fly ash particles in the ambient atmosphere.
I See LBP-85-5, 21 NRC 410 (1985).
<- t 3
The Licensing Board resolved the contention in favor of the staff and the applicants, finding that the dose estimates in the final environmental statement associated with normal plant operation were not significantly underestimated.2 Although the intervenors argue that the Licensing Board should have found that the dose estimates of radionuclides attached to fly ash were underestimated, their brief points to no record evidence to support their bald assertion. Nor does the record contain such evidence. Indeed, at the hearing the intervenors offered no affirmative evidence to support their contention, and all testimony was presented by the expert witnesses for the staff and the applicants. The Licensing Board made its findings based on this expert testimony and those findings are thorough, fully supported by the record, and address all the significant matters raised by the intervenors during their cross-examination of these expert witnesses.3 As we have previously stated, "we are not free to disregard the fact that the Licensing Boards are the Commission's primary fact finding tribunals."4 2
Id. at 415-16, 427.
3 See id. at 423-28.
4 Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-303, 2 NRC 858, 867 (1975).
=
4 Rather, when we review factual findings like those under challenge, we will overturn them only where "we are convinced that the record compels a different result."5 Here, the record compels only the result reached by the Licensing Board.
The intervenors nevertheless attempt to construct their argument by selectively referencing and quoting the Licensing Board's findings. They allege that "the Licensing
, Board agreed that many of the assumptions used in the -
Applicants' dose estimates 'were found deficient upon cross-examination.'"6 They then claim that "[a]s a result Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975). Accord Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 834 (1984);
Bailly, 2 NRC at 867.
6 In their
! Brief of-Intervenors (April 9, 1985) at 10.
, brief, the intervenors place a single set of quotation marks around the phrase "were found deficient upon l cross-examination" in the above quoted sentence, thus
, conveying the meaning that the-Licensing Board found that l the applicants' assumptions underlying their dose estimates were deficient. The phrase appearing in quotation marks, however, was a' quotation by the Licensing Board of the intervenors' proposed findings: "The Joint'Intervenors' Proposed Finding 8 asserts that the assumptions used in the Applicants' dose estimates 'were found deficient upon cross-examination.'" LBP-85-5, 21 NRC at 427. Contrary to the intervenors' statement, the Board did not " find" the applicants' assumptions " deficient." The intervenors' misquotation and misrepresentation of the Licensing Board's findings is blatant and totally unacceptable. See Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B l and 2B) , ALAB-409, 5 NRC 1391, 1395-96, reconsideration l
(Footnote Continued)
. - . ~ . - - .
. o 5
of the insufficient technical data presented by the Staff and the Applicants the Licensing Board was not able to assess the effects of radionuclides attached to particulates on the population surrounding the Harris facility." What this first argument ignores, however, is that the three factors not known with the precision demanded by the intervenors (which they label " deficiencies") were found by the Licensing Board to " produce a possible uncertainty in the dose estimate of less than 1/10 of 1 mrem /yr."8 In other words, these factors had an inconsequential impact on the estimated doses from normal plant releases.
The intervenors' second assertion (i.e. , the Licensing Board lacked sufficient data to assess the impacts of the fly ash phenomenon) is equally footless. The intervenors do not identify any facts to support their claim and there are none in the record. Rather, the expert witnesses for the applicants and the staff presented analyses establishing (Footnote Continued) denied, ALAB-418, 6 NRC 1 (1977). All parties appearing before us, whether represented by counsel or a lay representative, have an affirmative obligation to avoid any false coloring of the facts. In a consolidated appeal such as this one involving two intervenors -- one represented by counsel and one appearing pro se -- both representatives have the responsibility of ensuring that no such misrepresentations appear in the joint brief.
Brief of Intervenors at 10-11.
LBP-85-5, 21 NRC at 428.
. (
6 that the methods used in the applicants' environmental report and the staff's final environmental statement for calculating predicted doses from normal plant operation already conservatively accounted for the effects of the fly ash phenomenon postulated by joint contention II(e) .9 The Licensing Board's findings on this contention, therefore, are affirmed.
B. The intervenors next protest the Licensing Board's findings on joint contention II(c) . As originally admitted, that contention asserted that the final environmental statement underestimates the radiological dose effects from normal radiation releases at Shearon Harris because such effects have been considered "over an arbitrarily short period of time compared to the length of time the radionuclides actually will be causing health and genetic damage."10 Subsequent to its admission, the Licensing Board limited the scope of the issues it would permit to be 11 litigated under the contention and, on appeal, the intervenors have not challenged this ruling. Specifically, the Board barred, as wholly speculative, questions Mauro and Schaffer, Tr. fol. 1605; Branagan, Tr. fol.
1865.
10 LBP-85-5, 21 NRC at 419.
I See LBP-84-7, 19 NRC 432, 457-58 (1984); LBP-85-5, 21 NRC at 414, 419.
i 7
concerning the effects of routine releases over millions of years into the future. It left for adjudication, however,
-such issues as whether the final environmental statement should (1) describe the risks from routine radiological releases in terms of the 40-year plant life instead of annualized risks; (2) take into account the cumulative exposure to people who live near the plant for 40 years; and (3) include the time period subsequent to the operation of the plant in exposure analyses.
At the hearing on their contention, the intervenors again presented no affirmative evidence and all evidence was presented by the expert witnesses of the staff and the applicants.12 Based on this expert testimony, the Licensing Board found that the annualized risk assessment presented in the final environmental statement requires only a simple calculation (i.e. , multiplying by 40) to provide the total dose over the-life of the plant. Therefore it found the annualized results contained in the environmental statement adequate for describing the risks associated with the facility.13 It also found that the total exposure of people living near the plant for the life of the plant was 12 Mauro and Marschke, Tr. fol. 1971; Branagan, Tr.
fol. 2058.
I LBP-85-5, 21 NRC at 414-15, 420-23.
8 insignificant. Similarly, it determined that the Lincremental exposure of people living near the plant (as-well as. for the population of the country as a whole) for one hundred years after the plant ceased operating was insignificant.14 Further, the Board made findings on a number of additional matters, such as the insignificance of the risk to fetuses (from conception to birth) on the sum of the risks over.all age groups, and the insignificance of effects from plant operation on fetal losses, genetic effects and birth defects.15 The Board thus concluded that the final environmental statement was adequate without further discussion of these impacts.16 On appeal, the intervenors assert that the Licensing Board erred in finding that the final environmental statement did not significantly underestimate the health risks from normal plant operation. Their " argument" consists, however, merely of a statement that the Licensing Board " points out a series of deficiencies in the Staff's analysis yet concludes that . . . the Staff met their burden under NEPA [the National Environmental Policy Act of 14 Id. at 421-22.
15 Id. at 422.
16 Id. at 423, 445.
9 196917]," followed by a listing of five purported
" deficiencies."18 The intervenors' claims are not new. Before us, they have done nothing more than list matters advanced before that were rejected by the Licensing Board, without directing our attention to any supporting record evidence for their position. Nor do the intervenors address the facts and reasoning underlying the Licensing Board's rejection of their claims. This will not do. "[Ilt is not enough simply to declare flatly that a particular Board ruling was in error. Rather, it is incumbent upon the appellant to confront directly the reasons assigned for the challenged ruling and to identify with particularity the infirmities purportedly inherent in those reasons."19 Moreover, "a 17 42 U.S.C. S 4321.
18 Brief of Intervenors at 11-12.
19 Duke Power Co. (Catawba Nuclear Station, Units 1 and
- 2) , ALAB-813, 22 NRC 59, 84 n.128 (1985).
The intervenors also challenge the Licensing Board's findings on Eddleman contention 8 (F) (1) , which asserts that the final environmental statement underestimates the health effects of coal particulates emitted from the fossil fuel plants producing electrical power to support the uranium fuel cycle for Shearon Harris. The Licensing Board found that the contention was without merit. Specifically, it determined that the staff correctly concluded in the final environmental statement that there is "a miniscule incremental environmental impact from the coal particles" at issue and that further treatment of the issue was (Footnote Continued)
10 party's failure to submit a brief containing sufficient information and argument to allow the appellate tribunal to make an intelligent disposition of the issues raised . . .
is tantamount to their abandonment."20 ,
Here, the Board's findings fully discuss each issue , and thoroughly and accurately assemble the record evidence. In light of the intervenors' totally inadequate briefing of their purported claims, no useful purpose would be served by repeating all of those particulars here. Suffice it to say that the Board's findings are supported by the record and our examination of the evidence does not convince us that the record compels a different result.21 (Footnote Continued) unnecessary. LBP-85-5, 21 NRC at 437-38. On appeal, the intervenors once again only rehearse assertions that were rejected by the Licensing Board without adiressing the facts and reasoning that led the Board to reject their claims below. The Licensing Board treated fully the assertions that the intervenors repeat before us and our examination of the record convinces us that the Board's findings are correct and amply supported by the evidence. See id.,at 428-39. Accordingly, the Licensing Board's findings on Eddleman contention 8 (F) (1) are affirmed.
O Catawba, ALAB-355, 4 NRC 397, 413, reconsideration denied, ALAB-359, 4 NRC 619 (1976). See Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-693, 16 NRC 952, 954-57 (1982); Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-573, 10 NRC 775, 786-87 (1979), vacated in part and remanded, CLI-80-8, 11 NRC 433 (1980).
See supra note 5.
g-11 II. ,
On appeal, the intervenors also challenge the Licensing Board's rejection of a number of their proffered environmental contentions. The rejected contentions fall into four categories dealing with the applicants' radiological monitoring program, the possible ocean dumping of low level radioactive waste from the plant, the transportation of spent fuel from other nuclear plants operated by one of the applicants to Shearon Harris for interim storage, and the applicants' costs of operating the facility. Unfortunately, many of the intervenors' purported arguments are so sketchy as to be, at best, of only marginal utility in explaining their position. We have, nevertheless, considered each of the intervenors' skeletal assertions and find that the Licensing Board reached the correct result in rejecting the contested contentions.
A.l. The intervenors first argue that the Licensing .
Board erred in rejecting CCNC's contentions 16, 17, and 18, which claim that the applicants' radiological monitoring program is deficient with respect to three specific water sampling locations listed in the applicants' environmental report. The three contentions all propose modifications that CCNC asserts will enable earlier corrective measures in the event abnormal offsite radiation levels are discovered.
In rejecting them, the Licensing Board concluded that "they inaccurately ascribe to the sample points in question a
12 function which those points are not intended to perform."22 The Board found that the challenged sampling sites were intended "to confirm certain environmental data," while the
" monitoring function of ensuring the safety of people near the sample points and other places will be performed by the effluent radiological monitoring and sampling system,"23 ,
separate system that CCNC's contentions did not address.
The Licensing Board then rejected the contentions "because they do not accurately address the Applicants' proposal."24 The intervenors claim that the Licensing Board erroneously "went to the merits of the contentions" in rejecting them, instead of only considering whether the contentions stated an adequate basis as required by 10 C.F.R. S 2. 714 (b) . 25 According to the intervenors, the Licensing-Board ignored the teaching of our Allens Creek decision that, in deciding the admissibility of contentions, the validity of factual allegations should not be considered and a licensing board should determine only whether the contentions meet the basis and specificity requirements of 22 LBP-82-119A, 16 NRC 2069, 2082 (1982).
23
_I d_ .
24
_I_d.
25 Brief of Intervenors at 21.
o 13 the Rules of Practice. The applicants and the staff support the Licensing Board's ruling, but on slightly different grounds. The applicants argue that the Licensing Board actually rejected the contentions because they lacked an adequate basis. The staff, on the cther hand, claims that the contentions were properly rejected for inaccurately addressing the applicants' proposal and opines that the Licensing Board did not consider the merits of the contentions inasmuch as it expressed no opinion on the correctness of their substance.
The intervenors generally are correct that, in deciding the admissibility of contentions, the validity of the factual allegations comprising the contentions should not be considered.27 They are wide of the mark, however, in suggesting that the Licensing Board impermissibly crossed that line here. All three of the contentions propose improvements in the applicants' radiological monitoring system at specific sampling locations for the stated purpose of better protecting the safety of the people in the 26 Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980).
See id. at 547-50; Duke Power Co. (Transportation of Spent Fuel from Oconee to McGuire), ALAB-528, 9 NRC 146, 151 (1979); Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979); Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973).
o 14 I
vicinity of the plant through the earlier detection of a
radioactive releases. But as the Licensing Board indicated, the challenged monitoring system is not intended as an early warning system for people residing around the plant.. That
- _ . function is served by the applicants' effluent monitoring system. Rather, as the Licensing Board earlier found in resolving the same issue raised by CCNC in the construction permit proceeding, the purpose of the radiological monitoring system is to confirm the applicants' environmental models of population exposure from plant releases.28 Had this distinction between the applicants' s
radiological monitoring system and effluent monitoring Q
[ system not already been established in.the construction i ~ permit proceeding, the intervenors' claim might be more persuasive. Because the purpose and function of the applicants' radiological monitoring system was factually determined in that earlier proceeding, however, the j Licensing Board did not impermissibly "go to the merits" of l these contentions in rejecting them. Further, in stating that the contentions failed to address adequately the I
i applicants' proposal, the Licensing Board made a determination that was tantamount to a conclusion that the
. 8 LBP-78-4, 7 NRC 92, 122-127 (1978).
w
- 15 contentions lacked an adequate basis -- a correct ground for rejecting them here.
In any event, the contentions are barred by the doctrine of collateral estoppel and we uphold the Licensing Board's rejection of CCNC contentions 16, 17, and 18 on this alternative ground.29 It is settled that the doctrine of collateral estoppel should be applied in NRC adjudicatory proceedings to preclude a party to the litigation of an issue considered and decided in the construction permit proceeding from relitigating the issue in the operating license proceeding for the same reactor.30 Just as in the judicial context, the purpose of collateral estoppel in administrative proceedings is to prevent continuing controversy over matters finally determined and to save the 29 Although the applicants initially opposed these contentions on the basis that, inter alia, the issue of the adequacy ~of the applicants' radiological monitoring program was litigated and decided against CCNC in the construction permit proceeding, the Licensing Board did not reject the contentions on collateral estoppel grounds. See Applicants' Response To Supplement To Petition To Intervene By Conservation Council Of North Carolina at 6-7 (June 15, 1982). This being the case, we ordered the parties to brief the question whether CCNC was collaterally estopped from litigating these contentions in the operating license proceeding.
30 Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 212-216, remanded on other grounds, CLI-74-12, 7 AEC 203 (1974). See also Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2, and 3), ALAB-378, 5 NRC 557, 561 (1977).
- l 9 i 16 parties and boards the burden of relitigating old issues.
Therefore, as the Commission has stated, "an operating license proceeding should not be utilized to rehash issues already ventilated and resolved at the construction permit stage."31 Our cases indicate that, in order for the doctrine to apply, the individual or entity against whom the estoppel is asserted must have been a party, or in privity with a party, to the earlier litigation.32 The issue to be precluded also 4
must be the same as that involved in the prior proceeding and the issue must have been actually raised, litigated, and adjudged. Additionally, the issue must have been material and relevant to the disposition of the first action, so that its resolution was necessary to the outcome of the earlier proceeding.33 Even when these requirements are met, however, the doctrine must be " applied with a sensitive regard for any supported assertion of changed circumstances 31 Farley, CLI-74-12, 7 AEC at 203.
32 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 NRC 688, 695, aff'd, CLI-82-11, 15 NRC 1383 (1982); id., ALAB-717, 17 NRC 346, 353-54 (1983).
3 Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563, 566 (1979), aff'd, ALAB-575, 11 NRC 14, 15 (1980).
9 17 or the possible existence of some special public interest factor in the particular case."34 In the circumstances presented, the doctrine is fully applicable and the intervenors have presented no supportable grounds to prevent its application. In the construction permit proceeding, intervenor CCNC was admitted as a party and sought to litigate its contention C.1(a) , challenging the adequacy of the applicants' radiological monitoring program. 35 Although broader in overall scope than the instant CCNC contentions, part of contention C.1 (a) claimed that the applicants' program was deficient because "there are too few monitoring sites" and "the frequency of monitoring at these sites is too small."36 Here, the same issues are raised: CCNC contention 16 challenges the frequency of sampling at sample point 26; contention 17 questions the number of wells sampled and frequency of sampling at point 39; and contention 18 protests the frequency of sampling at point 40.37 In the construction 34 Farley, ALAB-182, 7 AEC at 216.
LDP-78-4, 7 NRC at 94-95.
36 Id. at 122.
The intervenors assert that the CCNC is not collaterally estopped from litigating these contentions in the operating license proceeding because "the specific issues raised in contentions 16, 17, and 18 were not raised (Footnote Continued)
O 18 permit proceeding CCNC presented no direct testimony on its contention, but testimony was presented by the applicants and staff and CCNC had the opportunity to cross-examine those witnesses. Based on that testimony, the Licensing Board found that the applicants' " radiological surveillance program is adequate from the standpoint of the number of sampling locations and the frequency of sampling." ' This finding, in response to specific portions of CCNC's contention C l(a), was essential to the Board's further (Footnote Continued) at the construction permit stage by the Conservation Council." Supplemental Brief of Intervenors (February 24, 1986) at 2. Although the issues presented in CCNC's contentions here are narrower than those raised in the construction permit proceeding, they clearly are encompassed by the broader contention. As stated in Moore's Federal Practice in discussing the identity of issues between present and prior actions, (t]he analogy to the rule against splitting a single cause of action is striking. Like a cause of action, 'an issue may not be . . . split into pieces. If it has been determined in a former action, it is binding notwithstanding the parties litigant may have omitted to urge for or against it matters which, if urged, would have produced an opposite result.' Any contention that is necessarily inconsistent with a prior adjudication of a material and litigated issue, then, is subsumed in that issue and precluded by the prior judgment's collateral estoppel effect.
1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice 1 0.443[2] at 761 (2nd ed. 1984) (footnotes omitted).
38 See Docket Nos. 50-400, 50-401, 50-402, 50-403, Tr.
fol. 1020; Tr. fol. 1142.
39 LBP-78-4, 7 NRC at 123-24.
19 finding that the applicants' " radiological monitoring and surveillance program is adequate to assess fully the radiological consequences of the proposed plant."40 In turn, the Board's finding on contention C.l(a) formed a necessary and material part of its initial decision and constituted a valid judgment on the merits authorizing a construction permit -- a decision we subsequently affirmed.41 Thus, all of the elements required for the application of the doctrine are present. Further, CCNC has made no showing of significantly changed circumstances or public interest factors that warrant relitigation of these contentions in the operating license proceeding.
Accordingly, CCNC contentions 16, 17, and 18 are barred by the doctrine of collateral estoppel.
- 2. The intervenors also appeal the Licensing Board's rejection of a portion of Eddleman contention 2. That contention claims the need for additional radiological monitoring equipment for the plant that has both high and low range detection capability and that can analyze, not only the rate of emissions, but the precise radionuclides 40 Id. at 124.
41 ALAB-490, 8 NRC 234 (1978).
20 and their quantities.42 Although the Licensing Board indicated in rejecting the contention that it met the specificity requirements of the Commission's Rules of Practice, the Board found that the contention was redundant of one already admitted (joint contention VI) . The admitted contention alleged that the monitoring system was inadequate because it was incapable of promptly detecting the specific types and quantities of radionuclides being released on and off the site.
t Before us, the intervenors argue that Eddleman contention 2 was erroneously rejected because it was more specific than joint contention VI and thus it also should have been admitted. This argument is frivolous. The intervenors do not dispute that the matters raised in the proffered Eddleman contention are within the parameters of joint contention VI and that those specific subjects could have been litigated as part of the more general issue set forth in the latter contention. This being the case, the j intervenors have not demonstrated (and cannot demonstrate) 42 The contention further recites that the applicants should provide cities within 30 miles of the facility with pressurized-lonization monitors for use in emergencies. The l Licensing Board found that this portion of the contention l dealt with emergency planning and deferred ruling on it i
until the Board considered all such contentions. See LBP-82-119A, 16 NRC at 2090. In their brief, the intervenors do not contest this ruling.
l 21 1
any prejudice from the rejection of the redundant contention. Accordingly, they are not entitled to any appellate relief on the rejection of Eddleman contention 2.43
- 3. Finally, the intervenors claim that the Licensing Board erred in rejecting Eddleman contention 82. That contention also challenges the adequacy of the applicants' radiological monitoring program. Specifically, it asserts that the preoperational program has insufficient sampling locations and numbers of samples to establish a statistically valid portrait of background radiation levels and concentrations and that the program's procedures are 43 The intervenors' brief appears to make a second argument concerning the Licensing Board's rejection of Eddleman contention 2. Like their first argument, this one lacks merit. They state (at 21), without elaboration, that "although the Licensing Board is authorized to consolidate parties and contentions under 10 C.F.R. 2.715a on motion or on its own initiative, on motion the parties may respond and present their positions on how the consolidation will adversely prejudice their rights." The intervenors then state that "[iln fairness, if the Licensing Board consolidates contentions on its own initiative, a similar opportunity for response need be afforded." Contrary to the implicit assumption of the intervenors' argument, however, the Licensing Doard rejected Eddleman contention 2 outright as redundant of joint contention VI, so it did not consolidate the two contentions at all. In any event, even if we assume the two contentions were somehow consolidated, the intervenors have demonstrated no prejudice to their rights. Moreover, if the intervenors are complaining about joint contention VI as a consolidated contention, they cannot now be heard to object because they authored and proposed it as a joint one.
h - - -
=-- - _ - .. . _- .
9-l 22 insufficient. The Licensing Board found that the contention fails to " indicate how the alleged inadequacies would adversely affect public health and safety or the environment" and concluded it was "without basis."44 on 4 appeal, the intervenors state, without more, that the contention should have been admitted because "on its face it questions the adequacy and sufficiency" of the applicants' program, and "[ij t is readily apparent that if a program that is designed to provide a baseline for radioactive 4 emissions is deficient then any monitoring program utilized while the plant is in operation will not provide accurate measurement above background."45 ;
Like CCNC contentions 16, 17, and 18, the subject of 4
Eddleman 82 challenges aspects of the applicants' monitoring program that generally were litigated and found adequate by the Licensing Board in the construction permit proceeding.46 Although Mr. Eddleman was not a party to the construction i
permit proceeding, and therefore is not collaterally l
estopped from raising these same issues in the operating license proceeding,47 our cases suggest that he nevertheless 44 LBP c2 119A, 16 NRC at 2104.
40 Brief of Intervenors at 22.
46 See LBP-78-4, 7 NRC at 122-27.
47 See San Onofre, ALAB-673, 15 NRC at 695.
o '
23 has the burden of providing much greater specificity than typically required of a contention where he seeks to relitigate an issue already fully investigated in the construction permit proceeding.48 Such a requirement is necessary as a bulwark against turning the operating license proceeding into a wasteful carbon copy of the construction permit proceeding. Here, as the Licensing Board recognized, the contention fails to particularize how the perceived inadequacies in the applicants' program would adversely affect the environment or the public health and safety.
Moreover, the contention does not spell out, as it must, how circumstances have changed since the construction permit proceeding or how the Licensing Board in the earlier case erred in finding the applicants' program adequate. The Board, therefore, was correct in rejecting the contention.
Instead of indicating, however, that the contention was "without basis," the Board should have concluded that the contention lacked specificity, so that its conclusion would be consistent with the Board's reasoning.
B. Next, the intervenors appeal the rejection of Eddleman contention 12. That contention asserts that the 48 Cf. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 NRC 587, 590-91 (1985). See generally Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 354 n.5 (1983).
- ,+
q-24 applicants' environmental report and the staff ls environmental statement fail to consider the effects of-ocean dumping of low level radioactive waste from the Shearon Harris facility. It further claims that such consideration is necessary because North Carolina has no land burial facilities for low level waste and is not a member of a waste disposal compact with other states; thus ocean dumping may be the only alternative for disposing of the applicants' low lev 1 waste beginning in 1986.49 The Licensing Boar'd found that "[t]here is no indication that 4
ocean dumping is contemplated, or that it is a probable consequence" and rejected the contention for failing to advance any basis.50 The intervenors argue that, in rejecting it, the Licensing Board once again erroneously went to the merits of the contention by relying on the factual representations of the applicants' counsel that ocean dumping was not contemplated. The applicants and the staff largely ignore t ,
49 Although the contention does not set out the significance of the year 1986, that was the date contained in the Low-Level Radioactive Waste Policy Act of 1980, 42 U.S.C. S 2021d, at the time Eddleman contention 12 was ,
filed. That Act authorized, inter alia, the then two states with operating low level disposal facilities to form compacts with other states and, after January 1, 1986, to exclude waste from noncompact-member states.
O LBP-82-119A, $6ifRCat2092.
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25 the intervenors' argument, but both seemingly lend credence to it by reciting in their briefs that they informed the Licensing Board that the applicants did not contemplate ocean dumping for low level waste. The staff then claims that the contention lacked any basis because it failed to indicate that the applicants planned such dumping. The applicants carry the argument one step further. They assert that the contention calls for the consideration of an unplanned and highly improbable activity that need not be considered at all because NEPA does not require the exploration of remote and speculative possibilities.
The intervenors are correct that the Licensing Board erroneously considered the merits of Eddleman contention 12 in concluding that the contention lacked an adequate basis.
As proffered, the contention set out the logical foundation for why the environmental effects of ocean dumping of low level wastes from the applicants' facility needed to be considered in the final environmental statement. At the time the contention was filed, it accurately recited the factors beyond the applicants' direct control that reasonably pointed to the likelihood that in 1986 land burial of low level waste would not be available in North Carolina where the applicants' plant was located. It also asserted those factors as the rationale for requiring ocean dumping to be considered as a necessary alternative. The contention, therefore, met the requirement of the Rules of
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e ,
Practice that the " bases for each contention [must be] set -
forth with reasonable specificity."51 It is well settled that in passing upon the ,
D admissibility of ' contentions "it.is not Ehe . function 7of a licensing board to reach the merits of.any contention."52 Whether the contention ultimately can be proven on the' merits is "not the appropriate inquiry at the ' ,
contention-admissioh stage."53 -Here, the factual' assertions ,
of the applicants and the staf[ that the applicants did no,t contemplate ocean dumping should not have been considered-by the Board -- much less been given controlling weight -- in 3
determining whether the contention stated an adequate basis.
Yet that is precisely what the Licensing Board did in 4 concluding that "Mr. Eddleman has advanced no bases for .
considering ocea'n dumping."54 In reality, the _~applic'antpf .
plans for land b'urial of its low level waste lay at the very . .
heart of the contention, i.e., despite the applicants' .
intentions, significant,.new and previously unconsidered _
n I See Grand Gulf, 6 AEC at 425, 10 C.F.R. S 2. 714 (b) .
52
_Id.
53 Philadelphia Electric Co. (LNnerick Generating Station, Units 1 and 2), ALAB-819, 2 2' NRC 6 81, 694T (1985) ,
review denied, CLI-86-5, 23 NRC __ (March 20, 1986). " See
Allens Creek, 11 NRC at 546-49.
~. . ,
r LBP-82-119Aj 16 NRC at 2092. -
~
i
/ w-E h l
4 27 factors beyond the applicants' control ineluctably pointed toward the unavailability of land disposal facilities for Shearon Harris waste. Nor, as the applicants claim, was the likeliPood of ocean dumping so remote and speculative as to place its consideration beyond-the matters that need be considered for an operating license under NEPA and the Commission's environmental regulations. Rather, at the time the contention was filed, such well-known circumstances as the rapidly dwindling capacity of the country's only operating low level disposal facilities and the continuing failure of other states to open new facilities made the likelihood of the need for other waste solutions reasonably foreseeable. The contention, therefore, should have been admitted. Subsequent developments, however, have rendered the Licensing Board's error harmless.
The Licensing Board also admitted a safety contention parallel to Eddleme.n environmental contention 12 that subsequently (during the safety issue phase of the proceeding) was decided in applicants' favor by summary disposition. That contention (Eddleman contention 67) claimed that, for the same general reasons set forth in the environmental contention, there was an absence of an assured land disposal site for low level waste.55 In granting the L
Id. at 2102.
,s .
28 applicants' motion for summary disp::sition, the Licensing Board determined, in effect, that there were no disputed issues of material fact and that there was reasonable assurance that adequate long term land disposal capacity for low level waste generated by the applicants' facility would be available when needed.56 The intervenors have not appealed the grant of summary disposition of this contention. Therefore, the factual predicate (i.e., future land burial facilities will be unavailable) supporting the main proposition of Eddleman contention 12 (i.e. , ocean dumping must be considered) already has been resolved on the merits against the intervenors. Consequently, the Licensing Board error in initially rejecting Eddleman contention 12 is now harmless error that does not require a reversal and remand.57 C. As part of their application for an operating license, the applicants also seek authority to receive and store at Shearon Harris spent fuel from one applicant's Robinson and Brunswick nuclear plants. Various intervenors 56 Memorandum and Order (July 24, 1984) at 4-8.
We also note that Congress approved the Southeast Interstate Low-Level Radioactive Waste Management Compact in the Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. No.99-240, S 223, 99 Stat. 1842, 1871 (1986).
That compact includes North Carolina as well as South Carolina -- a state where an operating low level waste disposal facility is located.
e =
29 4
filed contentions challenging the applicants' proposal but the Licensing Board ultimately rejected them. On appeal, the intervenors complain that the Board erred in rejecting those contentions "concerning the environmental impacts of the transportation of spent fuel from the Applicants' other nuclear reactors to the Harris facility for interim storage."58 8 Although the Brief of Intervenors at 34.
.intervenors purport to appeal the rejection of a number of spent fuel transshipment contentions, their brief makes no attempt to identify clearly which rejected contentions they appeal. It first recounts that the " Licensing Board originally accepted two contentions (CCNC 4 and CHANGE 9) and deferred several other contentions (among them, Eddleman 25, 64D, 64E, and 126)" and then cites the Board's Memorandum and Order of September 22, 1982. Id. Next, the brief recites that in passing upon the applicants' motion to reconsider, the Board rejected the previously admitted contentions "and at the same time rejected Mr. Eddleman's contentions (including two late-filed contentions)," citing the Board's Memorandum and Order of August 24, 1983. -Id.
The brief makes no other attempt to identify the spent Yuel transportation contentions.
But intervenor Chapel Hill Anti-Nuclear Group Effort (CHANGE) has not filed a notice of appeal and is not represented by the appellant intervenors. CHANGE was represented before the Licensing Board by Daniel Read, but neither Mr. Read nor anyone else on behalf of CHANGE filed a notice of appeal from the Licensing Board's partial initial decision on environmental issues. Moreover, even though a number of CHANGE's other contentions were consolidated and proffered as joint contentions by a number of intervenors (including appellants) acting together, CHANGE contention 9 was not consolidated with any other contentions. See LBP-82-119A, 16 NRC at 2075-78, 2082-83. Accordingly, the intervenors have no standing to press before us a possible grievance of another party to the proceeding who is not represented by the intervencrs. Houston Lighting & Power (Footnote Continued)
i dt 30 In rejecting the intervenors' contentions, the (Footnote Continued)
Co.. -(Allens Creek Nuclear Generating Station, Unit No. 1) ,
ALAB-631, 13 NRC 87, 89 (1981). See Puget Sound Power &
Light Co. (Skagit Nuclear Power Project, Units 1.and 2),
ALAB-556,'10 NRC 30, 32-33-(1979). Cf. Houston Lightinc &
Power Co. (South Texas Project, Units 1 and 2), ALAB-790, 21 NRC 360, 382-83 (1985).
The intervenors are correct that the Licensing Board 1 initially admitted CCNC contention 4 and deferred ruling on Eddleman contentions 25, 64D, 64E, and 126, but Eddleman contention 126 concerns " CLASS IX accidents," not the transshipment of spent fuel to Shearon Harris. See LBP-82-119A, 16 NRC at 2094, 2100, 2108. Eddleman-contention 126X does allege, however, the need to analyze the environmental effects of transporting spent fuel to 4 Shearon Harris, but that contention is not mentioned in intervenors' brief.- The other contentions identified by number in intervenors' brief do concern the environmental effects of transporting spent fuel to the applicants' facility. But the intervenors' statement that the Board, in its August 24, 1983 order, rejected Mr. Eddleman's spent
, fuel. transportation contentions (including two late-filed 4
ones) cannot be reconciled with the record. In its August 24, 1983 order, the Board rejected only one late-filed 4 contention on this subject, Eddleman contention 25B, and it conditionally rejected Eddleman contention 25. See 2
Memorandum and Order (August 24, 1983) at 6-7. The latter contention was not finally rejected until much later in a ruling the intervenors' brief does not even mention. See Memorandum and Order (July 27, 1984) at 2-3.
- Obviously, the intervenors' identification of the rejected contentions they wish to appeal is totally inadequate and fails to comply with 10 C.F.R. S 2.762 (d) (1) .
,_ That provision requires that "[a]n appellant's brief . . .
' clearly identify the errors of fact or law that are the subject of the appeal." See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 792-93 (1985). Moreover, the intervenors' purported " argument" consists of several disconnected generalities, such as "the Licensing Board must review all environmental impacts, not just those that somehow upset the cost-benefit analysis."
Brief of Intervenors at 35. Not only are their generalities inapposite in the circumstances presented (see , e.g. , 10 (Footnote Continued) j.
31 Licensing Board relied upon Catawba, where another licensing board' rejected similar spent fuel transportation contentions in parallel circumstances.59 In Catawba, the applicants, like those here, sought authority in their operating license application to receive and store, at Catawba, spent fuel generated at two other facilities owned by one of the applicants. That Board found that the Commission already had determined generically the environmental impacts of transporting spent fuel from a reactor in Table S-4,
" Environmental Impact of Transportation of Fuel and Waste To and From One Light-Water-Cooled Nuclear Power Reactor," 10 C.F.R. S 51.20 (g) (1983).60 The Board then determined that these environmental costs had been previously taken into account and balanced against the benefits of the facilities in the cost-benefit analyses for the plants generating the (Footnote Continued)
C.F.R. S 51.95 (a)) , but the intervenors once again have failed adequately to brief the issues they purport to raise.
See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2) ,
ALAB-813, 22 NRC 59, 84 n.128 (1985); Susquehanna, 16 NRC at 954-56. Accordingly, in addition to the grounds set forth in the text, the Licensing Board's rejection of the intervenors' various spent fuel transportation contentions is also affirmed because the intervenors have inadequately briefed the issues and have no standing to appeal the rejection of certain of those contentions.
59 Memorandum and Order (August 24, 1983) at 2-6, citing Duke Power Co. (Catawba Nuclear Station, Units 1 and
- 2) , LBP-83-8B, 17 NRC 291, 293-95 (1983).
60 Table S-4 is now found in 10 C.F.R. S 51.52 (1985)$
i-
m 32 spent fuel, so that such costs should not be counted a second time in considering the Catawba applicants' p'roposal.
Finally, the Board decided that, because the Catawba applicants' proposal was limited to receiving each year spent fuel shipments within the parameters of Table S-4, the intervenors' contentions must be rejected as an impermissible attack on the Commission's regulations. And it found this was true, regardless of whether the spent fuel s
was shipped directly to a final repoitory or shipped by way of another reactor before ultimately resuming the journey to a final repository. We. subsequently affirmed the Licensing Board's license authorization for Catawba and concurred in the Board's reasoning rejecting the intervenors' spent fuel transportation contentions.61 Although the intervenors assert that the Licensing Board erred in rejecting their spent fuel transportation contentions, their brief fails to explain the infirmities in the Board's reasoning -- a rationale we upheld. Thus, as we determined in almost identical circumstances in ALAB-825, the intervenors' contentions present an impermissible challenge to the Commission's Table S-4.62 The Licensing 61 Catawba, ALAB-825, 22 NRC at 792-94.
62 See 10 C.F.R. S 2.758 (a) .
/r '
33 Board, therefore, was correct in rejecting the spent fuel transportation contentions.
D. Finally, the intervenors protest the Licensing Board's rejection of Eddleman contentions 15 and 22 (a) and (b). The former claims that the applicants' environmental report fails to include the economic costs of waste disposal in its cost-benefit analysis, while the latter challenges the applicants' fuel cost estimates and operating payroll costs.63 Although the Licensing Board initially admitted these two contentions,64 it subsequently reconsidered its decision and found them barred by the Commission's regulations that prohibit, in operating license proceedings, contentions "concerning need for power or alternative energy 63 As filed, these contentions contained numerous additional parts that the Licensing Board rejected but, on appeal, the intervenors have not challenged any of these rulings. See LBP-82-119A, 16 NRC at 2092-93.
Additionally, the intervenors purport to appeal the Licensing Board's rejection of CHANGE contention 79 (c) .
That contention alleges that the cost estimates set forth in the cost-benefit analysis of the applicants' environmental report are incorrect because the applicants failed to include regulatory costs to the federal and state governments. See CHANGE Supplement to Petition for Leave to Intervene at 23 (May 14, 1982). But, once again, intervenor CHANGE has not filed a notice of appeal and is not represented by the appellant intervenors. Nor was CHANGE contention 79 (c) a joint contention (see LBP-82-119 A, 16 NRC at 2075-78) so that contention cannot be appealed by CCNC and Mr. Eddleman. See supra note 58.
64 LBP-82-119A, 16 NRC at 2092-93.
39 the Commission generically concluded that, once the plant is completed, the economics of nuclear power are such that no ,
viable alternatives are likely to tip the NEPA cost-benefit balance against issuance of an operating license. This determination was based upon the Commission's licensing experience that showed that an electric utility uses a completed nuclear plant either to meet increased energy demand or, alternatively, to replace older less economical generating capacity if there is no increase in demand.72 Therefore, to demonstrate that the purpose of the Commission's rule against needless litigation at the operating license stage is not served by its application in this case, the intervenors, at a minimum, must establish both that the Shearon Harris plant is not needed to meet increased energy demand and that it need not be used to displace an equivalent amount of older, less economical capacity. The latter condition can be satisfied only by showing that, after applying the conservation-based alternative, there no longer remains an amount of fossil fuel baseload generation equal to that of the capacity of Shearon Harris that is less efficient than the nuclear plant.
2 See supra pp. 35-36. 47 Fed. Reg. at 12,940, 12,941.
- q. .
40 The Eddleman petition failed to make this required showing. Although the petition purports to demonstrate that projected load increases can be met using the proposed conservation-based alternative so the nuclear plant is not needed, it totally fails to establish that the alternative is large enough to replace the required amount of the applicants' fossil fuel baseload generation. Thus, even assuming the validity of the proposed alternative for meeting peak demand, the petition must still demonstrate that Shearon Harris will not be used to displace existing less efficient fossil fuel baseload generation. Contrary to the intervenors' appellate assertions, it is not sufficient merely to show that the proposed alternative will displace an amount of fossil fuel generated baseload equivalent to that produced by Shearon Harris. Rather, the petition must establish that all of the applicants' fossil fuel baseload generation that is less efficient than Shearon Harris has been accounted for by the conservation-based alternative --
a showing Mr. Eddleman did not even attempt. Moreover, the petition may not, on the one hand, count the use of the proposed conservation-based alternative for the purpose of meeting future load demands to show the nuclear plant is not needed and then, on the other hand, recount the same quantity of energy alternative to displace a portion of the applicants' existing fossil fuel baseload generation. Such legerdemain cannot be used to establish the superiority of
P cm 41 the proposed alternative. Accordingly, the Licensing Board correctly denied the Eddleman waiver petition.
IV.
For the foregoing reasons, the Licensing Board's determination that the final environmental statement for the Shearon Harris Plant satisfies the agency's responsibilities under the National Environmental Policy Act and the Commission's implementing regulations is affirmed. The Board's rejection of CCNC contentions 4, 16, 17, and 18, and Eddleman contentions 2, 12, 15, 22 (a) and (b), 25, 25B, 64 (d) and (e), and 126X is also affirmed. Further, the Board's denial of the Eddleman petition for a waiver of the Commission's rules pursuant to 10 C.F.R. S 2.758 is affirmed. Finally, our sua sponte review of the Licensing Board's decision reveals no errors requiring correction.
It is so ORDERED.
FOR THE APPEAL BOARD
- b. -- -x=
C. Jqn Shtemaker Secretary to the Appeal Board i